The Sellers’ Representative. (a) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the Sellers’ Representative and as the agent and true and lawful attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”). (b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation: (i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement; (ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock; (iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy; (iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith; (v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby; (vi) to engage attorneys, accountants and agents at the expense of such Seller; (vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby; (viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and (ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder. (c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller. (d) All authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed. (e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers. (f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement. (g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Everside Health Group, Inc.), Stock Purchase Agreement (Everside Health Group, Inc.)
The Sellers’ Representative. 7.1.1 Each Seller appoints Xx. Xxxxxxx Xxxxx as its representative (a) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the “Sellers’ Representative Representative”) and as the agent and its true and lawful attorney-in-fact of Sellers individually and jointlyattorney in fact, with full power of substitution and appointment of authority in its name and on its behalf:
7.1.1.1 to direct all payments due to be paid to a successorDesignated Paying Agent, by the Buyer to act in the name, place and stead of the Sellers from time to time pursuant to this Agreement, save and except for purposes of executing any documents and taking any actions payments that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine are to be necessarysatisfied by an issuance of shares, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (and to enure that the payment is directed to a Designated Paying Agent and distribute such payment among the Sellers in accordance with their respective interests therein or as otherwise directed by the relevant Sellers;
7.1.1.2 to act in the name absolute discretion of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunderall matters relating to this Agreement, including without limitationexecution and delivery of any amendment of, or supplement to, this Agreement, any waiver of any condition under, or right arising out of, this Agreement, and any termination of this Agreement; and
7.1.1.3 in general, to do all things and to perform all acts, including negotiating, executing and delivering all agreements, certificates, receipts, instructions, and other instruments, contemplated by, or deemed advisable to complete the transactions contemplated by, this Agreement. Subject to Section 7.1.5, this appointment and grant of power of attorney granted in Section 11.14(a): (i) and authority is coupled with an interest and is irrevocable; (ii) may , and will not be delegated terminated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performedSeller.
(e) If (x) 7.1.2 The Sellers hereby irrevocably direct that all payments due to be paid by the Buyer to the Sellers from time to time pursuant to this Agreement, save and except for payments that are to be satisfied by an issuance of shares, shall be paid to the Designated Paying Agent engaged by the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent on behalf of the Sellers, Sellers or (y) as the Sellers’ Representative may otherwise direct and this shall be the Buyer’s good and sufficient authority for so doing.
7.1.3 The Sellers’ Representative is removed by the Sellers holding at least serving in this capacity solely for purposes of administrative convenience, and is not personally liable in his capacity as a majority Sellers’ Representative for any of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote obligations of the Sellers holding at least a majority under this Agreement, or any other documents or agreement contemplated hereby, and the Buyer agrees that it will not look to the personal assets of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” Representative for purposes the satisfaction of any obligations of the Sellers hereunder (except to the extent that such Sellers’ Representative is also a Seller, and then subject to the terms of this Agreement). If for any reason there is no The Sellers’ Representative at and the Sellers agree as between themselves, but without prejudice to any timerights the Buyer may have, all references herein to that the Sellers’ Representative shall be deemed will have no obligation or liability to refer to any Person for any action taken or not taken by the Sellers.
(f) All expenses incurred by Sellers’ Representative (in connection with the performance of his duties its capacity as Sellers’ Representative shall be borne Representative) under this Section 7.1 in good faith, and paid exclusively by the Sellers out of their own funds. The Sellers will jointly and severally indemnify and hold harmless the Sellers’ Representative for from any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction Loss that the Sellers’ Representative committed fraud in execution may suffer as a result of his duties as Sellers’ Representative that caused any such losses action or liabilities. All of the indemnities, immunities and powers granted to omission by the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants 7.1.4 The Buyer will be entitled to rely upon any document or other instrument delivered by the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, in that capacity, as being authorized by all of the Sellers, and no other authorization the Buyer will not be liable to any Seller for any action taken or consent not taken by the Buyer based on that reliance.
7.1.5 The mandate of the Sellers’ Representative or its equityholders is necessary, and (iii) under this Section 7.1 will terminate immediately in the event that this Agreement has been duly executed is terminated prior to Closing.
7.1.6 The Sellers’ Representative shall be entitled to engage counsel, accountants and delivered by other advisors, the expense of which shall be wholly for the account of the Sellers and not for the account of the Buyer or the Corporation.
7.1.7 The Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against or any subsequent Person serving as Sellers’ Representative in accordance with its termshereunder, except as may resign from such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating role upon at least ten days prior written notice to creditors’ the Buyer. The Sellers shall appoint a replacement within ten days of such resignation. All rights generally of such Person to indemnification and general principles of equity, regardless of whether asserted in a proceeding in equity or at lawexculpation hereunder shall survive such resignation.
Appears in 1 contract
The Sellers’ Representative. (a) The Sellers Each Covenantor hereby irrevocably nominateconstitutes and appoints the Sellers Representative as his, constitute and appoint HSSR LLC as the Sellers’ Representative and as the agent and her or its true and lawful representative, agent, proxy and attorney-in-fact fact, to serve as the representative of Sellers individually such Covenantor for all purposes authorized under this Agreement and jointlyall of the other agreements and instruments contemplated hereby, with including the full power on behalf of substitution and appointment of a successor, such Covenantor with respect to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3giving and receiving communications and notices on behalf of such Covenantor, (ii) any Tax matters as described making, executing, acknowledging and delivering all such other contracts, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in ARTICLE 9general, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) doing any and all documents things and taking any and all action that the Sellers’ Sellers Representative may, in Sellers’ Representative’s sole discretion, determine to be may consider necessary, desirable proper or appropriate, convenient in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine connection with or to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to carry out the transactions contemplated by this Agreement and all of the other agreements and instruments contemplated hereby, (iii) any claims in connection with this Agreement and all of the other agreements and instruments contemplated hereby against such Covenantor, including any indemnification claims, (iv) as further provided in this Section 8.15, and (v) as may otherwise be provided in this Agreement and all of the other agreements and instruments contemplated hereby.
(b) Without limiting the generality of the foregoing, each Covenantor hereby specifically authorizes the Sellers Representative to perform all of the following acts and exercise all of the following powers for such Covenantor and in his, her or its name, place and stead:
(i) To initiate, prosecute, defend and otherwise represent such Covenantor in any mediation, arbitration or judicial proceeding (whether as plaintiff or defendant) arising under or relating in any manner to any of this Agreement and all of the other agreements and instruments contemplated hereby or the Escrow Agreement;
subject matter thereof, and, in connection therewith, to apply for and obtain any injunctions and appeals, give any requisite security and sign any necessary bonds; (ii) to endorse To settle and to deliver compromise on behalf of such SellerCovenantor, irrevocable stock powers representing the Company Stock;
(iii) to: (X) any claim, dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or proceeding relating to this Agreement or the transactions any agreement or instrument contemplated hereby; (Yiii) negotiate To engage attorneys, certified public accountants and compromiseother professionals and experts in connection with the prosecution or defense of any claim, or in connection with the Sellers Representative’s exercise of any of the powers granted to the Sellers Representative in this Agreement; (iv) To receive from the Escrow Agent any amounts distributed from the Escrow Account for disbursement to such Covenantor; and (v) To make any payments owed on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller Covenantor pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to All decisions and actions by the contrary contained Sellers Representative in accordance with the terms of this Agreement or in any other contract executed in connection with shall be binding upon all the transactions contemplated herebyCovenantors, and notwithstanding any disagreement no Covenantor shall have the right to object to, dissent from, protest or dispute among the Sellers, otherwise contest such decisions or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Selleractions.
(d) All authority Covenantors may, at any time, substitute or elect a new Person to serve as the Sellers Representative, if such action is agreed to in writing by Covenantors who owned a majority of the Sellers’ Consideration Percentages, acting together as a single class, and a copy of such writing is delivered to each Party to this Agreement.
(e) Covenantors shall indemnify and hold harmless the Sellers Representative granted hereunderagainst any Losses incurred by the Sellers Representative in the course of the Sellers Representative’s conduct as the Sellers Representative, including without limitationother than Losses resulting from the Sellers Representative’s actual and intentional common law fraud (involving a knowing and intentional misrepresentation with the intent of inducing another person to act or not act and upon which such other person has relied to its, his or her detriment - as opposed to any fraud claim based on constructive knowledge, negligent or reckless misrepresentation or a similar theory), gross negligence or willful misconduct in connection with his performance of his duties under this Agreement and all of the other agreements and instruments contemplated hereby.
(f) The Sellers Representative’s power and grant of attorney granted in Section 11.14(a): authority is (i) is coupled with an interest and is irrevocable; irrevocable and survives the bankruptcy or liquidation of any Covenantor and will be binding on any successor thereto, and (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed exercised by the Sellers holding at least a majority Representative acting by signing as the representative of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority Covenantors or any individual Covenantor. [Remainder of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellerspage intentionally blank.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.]
Appears in 1 contract
Samples: Stock Purchase Agreement (Sterling Construction Co Inc)
The Sellers’ Representative. (a) The Each of the Sellers does hereby irrevocably nominatemake, constitute and appoint HSSR LLC as the Sellers’ ' Representative as his, her or its agent, to act in his or her or its name, place and stead, as the agent and true and lawful such Seller's attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successorfact, to act (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the other Transaction Documents (including in the namename of, place or on behalf of, such Seller), (ii) make all elections or decisions entered into in connection with this Agreement and stead the other Transaction Documents, (iii) hold such Seller's Securities and transfer such Seller's Securities to Buyer on the Closing Date, (iv) act on such Seller's behalf in connection with all obligations and agreements of the Sellers for purposes of executing any documents and taking any actions that under the Sellers’ Representative maySeller Transaction Documents, in (v) amend, waive or otherwise change the Sellers’ Representative’s sole discretion, determine to be necessary, desirable terms or appropriate in all matters relating to or arising out conditions of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, other Transaction Document on behalf of such Seller, (vi) defend, settle and make payments to accept delivery of, the Buyer Indemnified Parties on behalf of such Seller, all such documents as may be deemed Seller in connection with any claim for indemnification made by the Sellers’ Representative, in his sole discretion, any Buyer Indemnified Party pursuant to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse Section 13 and to deliver initiate and prosecute any claim for indemnification made by or on behalf of such SellerSeller pursuant to Section 13, irrevocable stock powers representing (vii) receive any payments of the Company Stock;
Final Purchase Price or other amounts due to such Seller under the Seller Transaction Documents, (iiiviii) to: give and receive on behalf of Sellers any and all notices from or to any Seller or Sellers under the Transaction Documents and (Xix) dispute or refrain from disputing, otherwise exercise all rights of such Sellers and otherwise act on behalf of such Seller, any claim made by Seller under the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate Transaction Documents and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or with any of the transactions contemplated by the Transaction Documents, in each case as if such Seller had personally done such act, and the Sellers' Representative hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or accepts such appointment. Any proceeds received by the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain Sellers' Representative from taking such action, Buyer on behalf of such Seller, the Sellers shall be distributed to the Sellers as promptly as practicable by the Sellers’ Representative deems' Representative, in his sole discretion, necessary or appropriate to carry out accordance with the terms and provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance other Transaction Documents. The death, incapacity, dissolution, liquidation, insolvency or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf bankruptcy of any Seller by Sellers’ Representative with respect to any Representative Matters, shall not terminate such appointment or the authority and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority agency of the Sellers’ Representative granted hereunder, including without limitation, the power of ' Representative. The power-of-attorney granted in this Section 11.14(a): (i) 14.1 is coupled with an interest and is irrevocable; .
(iib) may The Sellers' Representative shall be delegated entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Seller, Buyer, any third Person or any other evidence deemed by the Sellers’ Representative; ' Representative to be reliable, and the Sellers' Representative shall be entitled to act on the advice of counsel selected by it. The Sellers' Representative shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless it shall have received such advice or concurrence of such Sellers as it deems appropriate or it shall have been expressly jointly and severally indemnified to its satisfaction by the Sellers appointing it against any and all Damages and other liabilities and expenses that the Sellers' Representative may incur by reason of taking or continuing to take any such action.
(iiic) The Sellers' Representative shall survive be entitled to retain counsel acceptable to it and to incur such expenses as the dissolutionSellers' Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documents, death and all such fees and expenses (including reasonable attorneys' fees and expenses) incurred by the Sellers' Representative shall be jointly and severally borne by each Seller. The Sellers' Representative shall have the right to deduct any reimbursement amounts payable to the Sellers' Representative pursuant to this Section 14.1 from any reserve account established and maintained by the Sellers' Representative in connection with the transactions contemplated hereby (the "Reserve Account") without any prior or incapacity further approval from the Sellers.
(d) The Sellers hereby agree to jointly and severally indemnify the Sellers' Representative (in its capacity as such) against, and to hold the Sellers' Representative (in its capacity as such) harmless from, any and all Damages and other liabilities and expenses of whatever kind which may at any Seller and continue until all rights and obligations time be imposed upon, incurred by or asserted against the Sellers' Representative in such capacity in any way relating to or arising out of all Sellers have expired, been terminated its action or fully performedfailures to take action pursuant to this Agreement or any other Transaction Document.
(e) If (x) R. Xxx Xxxxxx shall be the initial Sellers' Representative and shall serve as the Sellers’ ' Representative shall dieuntil his resignation. Upon the resignation of R. Xxx Xxxxxx, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least representing a majority of the Company Stock outstanding immediately prior aggregate Ownership Percentages of all Sellers shall select a new Sellers' Representative. Each time a new Sellers' Representative is appointed pursuant to Closingthis Agreement, then Sellers holding at least such Person, as a majority of condition precedent to the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity effectiveness of such successor. Any appointment, shall accept such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellersposition in writing.
(f) All expenses incurred The provisions of this Section 14 shall in no way impose any obligations on Buyer. In particular, notwithstanding any notice received by Sellers’ Representative in connection with Buyer to the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellerscontrary, and excluding only claimsabsent bad faith or willful misconduct, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no liability to the Sellers with respect to, actions, decisions and determinations of the Sellers’ ' Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution shall be entitled to assume that all actions, decisions and delivery by Sellers’ Representative of this Agreement and the consummation determinations of the transactions contemplated hereby have been duly Sellers' Representative are fully authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
The Sellers’ Representative. (a) The By the execution and delivery of this Agreement, each of the Sellers hereby irrevocably nominateconstitutes and appoints Xxxxx Investment, constitute and appoint HSSR LLC LLC, a Delaware limited liability company, as the Sellers’ Representative and as the agent and true and lawful agent and attorney-in-fact (the “Sellers’ Representative”) of the Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes with respect to the transfer of executing the Stock, the Notes and the Purchased Company Membership Interests to the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the Sellers in any litigation or arbitration or other action or proceeding under this Agreement or arising out of the transactions contemplated hereby, do or refrain from doing all such further acts and things, and execute all such documents and taking any actions that as the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable shall deem necessary or appropriate in all matters relating to or arising out of connection with the transaction contemplated by this Agreement or Escrow Agreement, including, without limitation, the power:
(i) to act for the Sellers with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Sellers and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Sellers’ Representative deems necessary or appropriate in connection with the consummation of the transaction contemplated by this Agreement;
(iiii) the Working Capital Adjustment to enter into (pursuant to Section 1.3, 12.1) one or more amendments to this Agreement or to waive (ii) any Tax matters as described in ARTICLE 9, (iiipursuant to Section 12.2) the Adjustment Escrow Accountfailure of the Buyer to comply with any obligation, the Indemnity Escrow Account and the Regulatory Permit Escrow Accountcovenant, agreement or condition contained herein;
(iv) to receive funds and give receipts for funds, including in respect of any adjustments to the amount of the Aggregate Contingent Payment, or Purchase Price;
(v) to enter into the Escrow Agreement and take all actions contemplated to be taken by the Sellers’ Representative thereunder;
(vi) to do or refrain from doing any claim for indemnification, compensation further act or reimbursement deed on behalf of the Sellers that the Sellers’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Sellers could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement (collectively, the “Representative Matters”)Agreement.
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf appointment of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to coupled with an interest and shall be irrevocable, and the Sellers.
(f) All expenses incurred by Buyer and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Sellers’ Representative in connection with all matters referred to herein. All notices required to be made or delivered by the performance Buyer to any of his duties as Sellers’ Representative the Sellers shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless made to the Sellers’ Representative for the benefit of such Seller and shall discharge in full all notice requirements of the Buyer to the Sellers with respect thereto. The Sellers hereby confirm all that the Sellers’ Representative shall do or cause to be done by virtue of its appointment as the Sellers’ Representative. The Sellers’ Representative shall act for the Sellers on all of the matters set forth in this Agreement in the manner the Sellers’ Representative believes to be in the best interest of the Sellers and consistent with obligations under this Agreement, but the Sellers’ Representative shall not be responsible to the Sellers for any and all claims debtsloss or damages the Sellers may suffer by the performance by the Sellers’ Representative of its duties under this Agreement, losses other than loss or other liabilities damage found by the final judgment of any sort whatsoever incurred a court of competent jurisdiction to arise from willful violation of the law by the Sellers’ Representative in connection with its duties under this Agreement. All decisions and actions taken by the Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or omitted otherwise contest the same. The Sellers’ Representative shall be entitled to engage such counsel, experts, consultants and other advisors as it shall deem necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Sellers’ Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Sellers’ Representative may (but need not) consult with any Seller in connection with exercising its powers and performing its functions hereunder and each Seller shall cooperate with and offer reasonable assistance to the Sellers’ Representative in connection therewith. In addition, including without limitationthe Sellers shall individually and ratably in proportion to such Seller’s Fraction (and not jointly and severally) indemnify the Sellers’ Representative and hold the Sellers’ Representative harmless against any loss or damages arising out of or in connection with the acceptance or administration of the Sellers’ Representative’s duties hereunder, claims except any loss or damage found by one or more the final judgment of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction to arise from willful violation of the law by the Sellers’ Representative in connection with its duties under this Agreement. Without limiting the foregoing, the Sellers’ Representative shall not be liable to the Sellers for any apportionment or distribution of payments made by the Sellers’ Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Seller to whom payment was due, but not made, shall be to recover from other Sellers any payment in excess of the amount to which they are determined to have been entitled.
(c) The Sellers’ Representative may be changed by the Sellers from time to time upon not less than thirty (30) days’ prior written notice to the Buyer, provided that the Sellers’ Representative committed fraud in execution may not be removed unless holders of his duties as a majority interest of the Fractions agree to such removal and to the identity of the replacement Sellers’ Representative that caused such losses or liabilitiesRepresentative. All Any vacancy in the position of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery may be filled by Sellers’ Representative of this Agreement and the consummation approval of the transactions contemplated hereby have been duly authorized by all necessary action on the part holders of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation a majority in interest of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at lawFractions.
Appears in 1 contract
Samples: Securities Purchase and Sale Agreement (Corinthian Colleges Inc)
The Sellers’ Representative. (ai) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the Sellers’ Representative and shall have the authority to act as the agent for, and true and lawful to bind and/or execute any documents as attorney-in-fact of for, any and all Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with this Agreement and each Ancillary Agreement. Such authority shall include the sole and exclusive authority to (iA) the Working Capital Adjustment pursuant to Section 1.3assert, pursue, defend against, contest, and settle claims for indemnification hereunder, (iiB) exercise any Tax matters as described in ARTICLE 9other rights and remedies that may be available to any Seller hereunder, (iiiC) defend against, contest, and settle the Adjustment Escrow Accountassertion of any other rights or remedies by the Buyer hereunder, the Indemnity Escrow Account and the Regulatory Permit Escrow Account(D) execute and deliver amendments, (iv) the amount of the Aggregate Contingent Paymentconsent, or (v) any claim for indemnification, compensation or reimbursement and waivers to and under this Agreement (collectively, and each Ancillary Agreement. Each Seller shall retain the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify act on its own behalf with respect to matter not covered by the preceding sentence and file on behalf of the Sellers (in the name of such Seller not otherwise expressly required or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine permitted to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed taken solely by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;.
(ii) to endorse The Buyer and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively on the authority granted pursuant to the foregoing clause (without further evidence of any kind whatsoeveri) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by until the Sellers’ Representative with respect delivers written notice to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority the Buyer of the appointment of a successor Sellers’ Representative granted hereunderapproved in writing in advance by the Buyer (such approval not to be unreasonably withheld, including without limitationconditioned, or delayed), in which case, effective upon the date specified in such notice, the power Buyer and the Company shall be entitled to rely on the authority of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the such successor Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any and such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to be the Sellers.
(f) All expenses incurred by Sellers’ Representative for all purposes under this Agreement and each Ancillary Agreement. In the event that the Sellers’ Representative becomes unable or unwilling to perform its responsibilities hereunder or under any Ancillary Agreement or resigns from such position, the Sellers, acting by joint consent, shall, as promptly as practicable, appoint a successor Sellers’ Representative approved in connection with writing in advance by the performance of his duties as Buyer (such approval not to be unreasonably withheld, conditioned, or delayed) and deliver written notice thereof to the Buyer, in which case, effective upon the date specified in such notice, such successor Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless deemed to be the Sellers’ Representative for any all purposes under this Agreement and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. each Ancillary Agreement.
(iii) All of the indemnitiespowers, authorities, rights, and immunities and powers granted to the Sellers’ Representative under this Agreement or any Ancillary Agreement shall survive the termination Closing. The grant of this Agreement.
(g) authority provided to the Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into under this Agreement and to consummate the transactions contemplated herebyeach Ancillary Agreement is coupled with an interest, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representativeshall be irrevocable, and no other authorization or consent of Sellers’ Representative or its equityholders is necessaryshall survive the death, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representativeincompetency, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles liquidation of equity, regardless of whether asserted in a proceeding in equity or at lawany Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Travelzoo)
The Sellers’ Representative. (a) The Each of the Sellers does hereby irrevocably nominatemake, constitute and appoint HSSR LLC as the Sellers’ Representative as his, her or its agent, to act in his or her or its name, place and stead, as the agent and true and lawful such Seller’s attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successorfact, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) execute and deliver all documents necessary or desirable to carry out the Working Capital Adjustment pursuant to Section 1.3intent of this Agreement, the Escrow Agreement and the other Transaction Documents (including in the name of, or on behalf of, such Seller), (ii) any Tax matters as described make all elections or decisions entered into in ARTICLE 9connection with this Agreement, the Escrow Agreement and the other Transaction Documents, (iii) if applicable hereunder, hold such Seller’s Company Securities and transfer such Seller’s Company Securities to Buyer on the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow AccountClosing Date, (iv) the amount act on such Seller’s behalf in connection with all obligations and agreements of the Aggregate Contingent PaymentSellers under the Seller Transaction Documents and the Escrow Agreement, or (v) any claim for indemnificationamend, compensation waive or reimbursement under make other change the terms or conditions of this Agreement (collectivelyAgreement, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller Escrow Agreement or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, other Transaction Document on behalf of such Seller, (vi) defend, settle and make payments to accept delivery of, the Buyer Indemnified Parties on behalf of such Seller in connection with any claim for indemnification made by any Buyer Indemnified Party pursuant to Section 12 and the Escrow Agreement, and to initiate and prosecute any claim for indemnification made by or on behalf of such Seller pursuant to Section 12, (vii) if applicable hereunder, receive any payments of the MG Consideration or the Non-MG Consideration or other amounts due to such Seller under this Agreement, the Escrow Agreement or the other Seller Transaction Documents, (viii) give and receive on behalf of Sellers any and all notices from or to any Seller or Sellers under the Transaction Documents, (ix) incorporate corporations, organize partnerships, organize limited liability companies on behalf of the Sellers and take all actions in connection therewith, and (x) otherwise exercise all rights of such Sellers and otherwise act on behalf of such Seller under this Agreement, the Escrow Agreement and the other Transaction Documents and in connection with any of the transactions contemplated by such Agreements and the Transaction Documents, in each case as if such Seller had personally done such act, and the Sellers’ Representative hereby accepts such appointment, provided, however, that this shall not authorize or empower the Sellers’ Representative to do or cause to be done any of the foregoing (a) in a manner that improperly discriminates between or among the Sellers, or (b) as to any matter insofar as such matter relates solely and exclusively to a single Seller. Without implying that other actions would constitute an improper discrimination, all such documents as may each of the Sellers agrees that discrimination by the Sellers’ Representative between or among Sellers solely on the basis of the respective number of Company Securities held by each Seller shall not be deemed to be improper. If applicable, any proceeds received by the Sellers’ Representative from Buyer on behalf of the Sellers shall be distributed to the Sellers as promptly as practicable by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to accordance with the transactions contemplated by terms and provisions of this Agreement and the other Transaction Documents. The death, incapacity, dissolution, liquidation, insolvency or bankruptcy of any Seller shall not terminate such appointment or the Escrow Agreement;
(ii) to endorse authority and to deliver on behalf agency of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunder, including without limitation, the power of . The power-of-attorney granted in this Section 11.14(a): (i) 13.1 is coupled with an interest and is irrevocable; .
(iib) may The Sellers’ Representative shall be delegated entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Seller, Buyer, any third Person or any other evidence deemed by the Sellers’ Representative; Representative to be reliable, and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable entitled to fulfill his, her or its responsibilities as agent act on the advice of the Sellers, or (y) the Sellers’ Representative is removed counsel selected by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successorit. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to The Sellers’ Representative shall be deemed fully justified in failing or refusing to refer take any action under this Agreement or any other Transaction Document unless it shall have received such advice or concurrence of such Sellers as it deems appropriate or it shall have been expressly jointly and severally indemnified to its satisfaction by the Sellers appointing it against any and all Damages and other liabilities and expenses that the Sellers’ Representative may incur by reason of taking or continuing to take any such action.
(fc) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as The Sellers’ Representative shall be borne entitled to retain counsel acceptable to it and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless to incur such expenses as the Sellers’ Representative for any deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documents, and all claims debts, losses or other liabilities of any sort whatsoever such fees and expenses (including reasonable attorneys’ fees and expenses) incurred by the Sellers’ Representative shall be jointly and severally borne by each Seller.
(d) The Sellers’ Representative shall serve as the Sellers’ Representative without compensation; provided, however, that the Sellers hereby agree to jointly and severally indemnify the Sellers’ Representative (in connection with actions taken its capacity as such) against, and to hold the Sellers’ Representative (in its capacity as such) harmless from, any and all Damages and other liabilities and expenses of whatever kind which may at any time be imposed upon, incurred by or omitted asserted against the Sellers’ Representative in such capacity in any way relating to or arising out of its action or failures to take action pursuant to this Agreement or any other Transaction Document, except if the same was the result of the Representative’s bad faith or willful misconduct.
(e) Medica II Management L.P, a Cayman Islands limited partnership, shall be the initial Sellers’ Representative and shall serve as the Sellers’ Representative until its resignation. Upon the resignation of Medica II Management L.P, the Sellers representing a majority of the Company Securities being sold to Buyer at the Closing shall select a new Sellers’ Representative. Each time a new Sellers’ Representative is appointed pursuant to this Agreement, including without limitationsuch Person, claims as a condition precedent to the effectiveness of such appointment, shall accept such position in writing.
(f) The Sellers’ Representative shall submit to the Buyer the Milestone Ia Allocation Schedule, the Milestone Ib Allocation Schedule, the Milestone II Allocation Schedule and the Non-MG Allocation Schedule within two days of each relevant payment date.
(g) The provisions of this Section 13 shall in no way impose any obligations on Buyer. In particular, notwithstanding any notice received by one or more of SellersBuyer to the contrary, and excluding only claimsabsent willful misconduct, losses Buyer (i) shall be fully protected in relying upon and liabilities based upon a finding shall be entitled to rely upon, and shall have no liability to the Sellers with respect to, actions, decisions and determinations of the Sellers’ Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Sellers’ Representative are fully authorized by a court all of competent jurisdiction the Sellers.
(h) In the event that the Sellers’ Representative committed fraud in execution of his duties as confirms to the Buyer that the Sellers wish to have the Sellers’ Representative that caused such losses or liabilities. All a trustee under the Sellers’ tax ruling (the “Tax Trustee”) receive payment on their behalf of any portion of the indemnitiesconsideration due to the Sellers hereunder, immunities the Buyer shall, subject to Section 2.2(c)(v) and powers granted Section 12.6(f)(B), deliver to the Sellers’ Representative or such Tax Trustee, as applicable, such consideration on the due date, and the Sellers’ Representative or such Tax Trustee, as applicable, shall distribute such portion of the consideration to the Sellers in accordance with the applicable Allocation Schedule. Delivery by Buyer of consideration to the Sellers’ Representative or the Tax Trustee or the Escrow Agent under this Agreement shall survive the termination relevant provisions of this Agreement.
(g) Sellers’ Representative represents and warrants to , in accordance with the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation instructions of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, shall fully and no other authorization or consent of completely discharge Buyer’s obligations hereunder to deliver such consideration to the Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
The Sellers’ Representative. (a) 10.1 The Sellers Equity Holders hereby irrevocably nominateauthorize, constitute direct and appoint HSSR LLC Xxxx Xxxxx Xxxxxx to act as the Sellers’ Representative sole and as the agent and true and lawful exclusive agent, attorney-in-fact and representative of Sellers individually and jointlythe Equity Holders, with full power of substitution and appointment of a successor, with respect to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of under this Agreement or Escrow Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Merger Consideration to or for the benefit of the Equity Holders, contesting and settling any and all claims for indemnification pursuant to Section 7.2, resolving any other disputes hereunder, performing the duties expressly assigned to the Equity Holders’ Representative hereunder and to engage and employ agents and representatives and to incur such other expenses as the Equity Holders’ Representative shall reasonably deem necessary or prudent in connection with (i) the Working Capital Adjustment foregoing. In addition, each Equity Holder hereby acknowledges that Equity Holders’ Representative shall have the right, at his sole election, to offset any amount otherwise distributable to a Equity Holder against any amount payable by such Equity Holder to a Zanett Indemnified Party pursuant to Section 1.3, (ii) 7.2. The Equity Holders’ Representative shall have the sole and exclusive right on behalf of each Equity Holder to take any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Paymentaction or provide any waiver, or (v) receive any notice with respect to any claims for indemnification under Section 7.2 and to settle any claim for indemnificationor controversy arising with respect thereto. Any such actions taken, compensation exercises of rights, power or reimbursement under this Agreement (collectivelyauthority, and any decision or determination made by the “Equity Holders’ Representative, shall be absolutely and irrevocably binding on each Equity Holder as if such Equity Holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Equity Holder’s individual capacity, and no Equity Holder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Equity Holders hereunder or any action that the Equity Holders, at their election, have the right to take hereunder, shall be taken only by the Equity Holders’ Representative Matters”)and no Equity Holder acting on its own shall be entitled to take any such action.
(b) The Sellers irrevocably grant 10.2 All deliveries and payments to be made by Zanett or Merger Sub to any Equity Holder hereunder shall be made exclusively to the SellersEquity Holders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in Equity Holders and any delivery or payment so made to the name of such Seller or otherwise) any and all documents that the SellersEquity Holders’ Representative may, in Sellers’ Representative’s sole discretion, determine shall constitute full performance of the obligations hereunder of Zanett or Merger Sub to the Equity Holders. Neither DBA Group nor Zanett or Merger Sub shall be necessary, desirable or appropriate, in such forms liable for allocation of particular deliveries and containing such provisions as Sellerspayments among the Equity Holders.
10.3 The appointment of the Equity Holders’ Representative may, in the Sellers’ Representativeas each Equity Holder’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf attorney-in-fact revokes any power of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or attorney heretofore granted that authorized any other Person under or relating Persons to represent such Equity Holder with regard to this Agreement or and the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any . The appointment of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the SellersEquity Holders’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) attorney-in-fact pursuant hereto is coupled with an interest and and, except as provided in Section 10.6, is irrevocable; . The obligations of each Equity Holder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Equity Holder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity delivery of an assignment by any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent Equity Holder of the Sellers, whole or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority any fraction of the Company Stock outstanding immediately prior its interest in any payment due to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative it under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
Samples: Merger Agreement (Zanett Inc)
The Sellers’ Representative. (a) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the Sellers’ Representative and as the agent and true and lawful attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with to the transactions contemplated herebycontrary, all rights of Sellers under Sections 12.4 and 12.5 hereof shall be exercisable exclusively by Axxxxxxxx, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with Axxxxxxxx in respect of all such rights, including, without limitation, the giving of all notices pursuant to Sections 12.4 and 12.5 hereof, unless Sellers owning a majority of the Class A Stock and Class B Stock immediately prior to the Closing shall notify Buyer in writing that Buyer shall thereafter deal exclusively with Jxxx X. Xxxxxxxxxx or another specified individual (but not more than one individual) for purposes of this Article XII. Axxxxxxxx or such other specified individual who may be appointed pursuant to this Section 12.6(a) to act as representative of Sellers in place of Axxxxxxxx shall be referred to herein as the "Sellers' Representative".
(b) The Sellers' Representative shall not be liable to Sellers for any action taken or omitted by him or her in good faith and in no event shall the Sellers’ ' Representative on all be liable or responsible to Sellers except for his or her own gross negligence, bad faith or willful misconduct. Sellers agree that Sellers shall be liable, jointly and severally, to hold the Sellers' Representative Mattersharmless from, and shall be entitled to rely conclusively indemnify and reimburse the Sellers' Representative for, all claims, liabilities, losses and expenses (without further evidence of including out-of-pocket and incidental expenses reasonably incurred and reasonable legal fees) arising in connection with any kind whatsoever) on any document executed action, suit or purported to be executed on behalf of any Seller by claim arising under this Agreement, provided that the Sellers’ ' Representative has not acted with gross negligence, bad faith or willful misconduct with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunderevents relating to such claims, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debtsliabilities, losses or other liabilities of any sort whatsoever incurred by expenses. Anything in this Agreement to the contrary notwithstanding, in no event shall the Sellers’ Representative in connection with actions taken or omitted as Sellers’ ' Representative, including without limitation, claims by one acting in his or more her capacity as the representative of Sellers, and excluding only claimsbut not in his or her individual capacity as a Seller, losses and liabilities based upon a finding by a court be responsible or liable to Sellers for special, indirect or consequential loss or damages of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted any kind (including but not limited to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equitylost profits), regardless of whether asserted the form of action. No indemnification by Sellers under this Section 12.6(b) shall reduce or otherwise limit in a proceeding in equity or at lawany respect Sellers' other indemnification obligations under this Article XII.
Appears in 1 contract
Samples: Stock Purchase Agreement (Infinity Broadcasting Corp)
The Sellers’ Representative. (a) The Sellers Each Seller hereby irrevocably nominateappoints the Sellers’ Representative for and on behalf of the Securityholders to give and receive notices and communications in connection with this Agreement and the transactions contemplated hereby, constitute to authorize, agree to, receive, hold, and appoint HSSR LLC as distribute the Transaction Consideration, to take all actions on behalf of the Securityholders pursuant to this Agreement, and to take all actions necessary or appropriate in the judgment of the Sellers’ Representative for the accomplishment of the foregoing. More specifically, the Sellers’ Representative shall have the authority to make all decisions and determinations and to take all actions (including giving consents or agreeing to any amendments to this Agreement or any Seller Closing Document or to the termination hereof or thereof) required or permitted hereunder on behalf of each Securityholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Securityholder, and any notice, communication, document, certificate or information required (other than any notice required by Legal Requirement or under the Company’s Constitutive Documents) to be given to any Securityholder hereunder or pursuant to any Transaction Document shall be deemed so given if given to the Sellers’ Representative. Without limiting the generality of the foregoing, the Sellers’ Representative shall be authorized, in connection with the Closing, to execute all certificates, documents and agreements on behalf of and in the name of the Securityholders necessary to effectuate the Closing and the Transactions.
(b) Notwithstanding the authority granted to the Sellers’ Representative under Section 11.11(a), the Sellers’ Representative shall (1) immediately forward to TELUS any and all notices or other correspondence received by Sellers’ Representative on behalf of TELUS (including in connection with it being a Securityholder); (2) consult with TELUS and obtain its written consent before taking any action on behalf of TELUS (including in connection with it being a Securityholder); and (3) obtain the written consent of TELUS before agreeing to waive any condition under this Agreement or taking any action on behalf of TELUS (including in connection with it being a Securityholder) related to matters of a financial nature (including, without limitation, matters pertaining to adjustments to or payment of the Transaction Consideration or the Earnout Payment, the purchase price adjustment procedure under Section 2.6, or any dealings with the Escrow Fund).
(c) In performing the functions specified in this Agreement, the Sellers’ Representative shall not be liable to any Securityholder in the absence of gross negligence or willful misconduct on the part of the Sellers’ Representative. Each Seller shall severally (based on each such Seller’s Pro Rata Share), and not jointly, indemnify and hold harmless the Sellers’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Sellers’ Representative and as the agent and true and lawful attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount acceptance or administration of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant his duties hereunder. If not paid directly to the Sellers’ Representative full authority to executeby Sellers, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents that Damages may be recovered by the Sellers’ Representative mayfrom the Escrow Fund otherwise distributable to Sellers (and not distributed or distributable to any Buyer Indemnified Person or subject to a pending indemnification claim of any Buyer Indemnified Person) following the release of the Escrow Fund pursuant to the terms hereof and of the Escrow Agreement, in Sellers’ Representative’s sole discretionat the time of distribution, determine and such recovery will be made from Sellers according to be necessary, desirable or appropriate, in such forms and containing such provisions as their respective Pro Rata Share. Sellers’ Representative mayis entitled to reimbursement from Securityholders of any fees and expenses, including but not limited to taxes, paid by Sellers’ Representative in performing the functions specified in this Agreement.
(d) The Sellers’ Representative has legal capacity and full power and authority to execute and deliver this Agreement and each Transaction Document to which the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, Representative is a party and to accept delivery of, on behalf of such Seller, all such documents as may be deemed perform his obligations hereunder and thereunder. This Agreement has been duly executed and delivered by the Sellers’ Representative, and, assuming the due authorization, execution and delivery of this Agreement by the Buyer, constitutes the valid and binding obligation of the Sellers’ Representative enforceable against the Sellers’ Representative in his sole discretionaccordance with its terms, subject to the Enforceability Exceptions. All other agreements and documents to be appropriate to consummate or relating to executed by the Sellers’ Representative in connection with the transactions contemplated by this Agreement or will be duly and validly executed by the Escrow Agreement;Sellers’ Representative and, when so executed and delivered (and executed and delivered by the other parties thereto), will constitute the legal, valid and binding obligations of the Sellers’ Representative enforceable in accordance with their respective terms, subject to the Enforceability Exceptions.
(iie) The provisions of this Section 11.11 shall in no way impose any obligations on Buyer. In particular, notwithstanding any notice received by Buyer to endorse the contrary, Buyer (i) shall be fully protected in relying upon and shall be entitled to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise underrely upon, and shall have no Liability to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document the Securityholders with respect to such dispute or remedy;
(iv) to give or agree to, on behalf actions, omissions to act, decisions and determinations of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion(ii) shall be entitled to assume that all actions, omissions to be necessary or appropriate under or relating this Agreement act, decisions and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf determinations of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out are fully authorized by the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, Securityholders and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(ciii) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to this Agreement and the other Transaction Documents. All deliveries and payments made by Buyer to the Sellers’ Representative Matters, and or at the direction of the Sellers’ Representative shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed made on behalf of the Securityholders and shall constitute full performance of the delivery and payment obligations of Buyer under this Agreement and the other Transaction Documents, including any Seller payments made by Sellers’ Representative with respect Buyer to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final the Earnout Payment. Buyer shall not be liable for allocation of particular deliveries and conclusive upon payments of such Seller.
(d) All authority amounts at the direction of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
Samples: Stock Purchase Agreement (Computer Programs & Systems Inc)
The Sellers’ Representative. (a) The Sellers hereby irrevocably nominateEach Seller constitutes and appoints Xxxxxxx as representative (the “Sellers’ Representative”) and its true and lawful attorney in fact, constitute with full power and appoint HSSR LLC as authority in its name and on its behalf:
(i) to act on such Seller’s behalf in the absolute and reasonable discretion of the Sellers’ Representative and as the agent and true and lawful attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successor, respect to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement (including, without limitation, actions or inactions in respect of Section 1.06, Section 6.01 and Article 5 hereof) and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Sellers under this Agreement, the Escrow AgreementAgreement and the other Transaction Documents, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account execution and the Regulatory Permit Escrow Account, (iv) the amount delivery of the Aggregate Contingent PaymentTransaction Documents, with such modifications or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to changes as the Sellers’ Representative full authority to executewill have consented to; any amendment, deliversupplement, acknowledge, certify and file on behalf or modification of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse other Transaction Documents; and to deliver on behalf the pursuit, defense, settlement, or waiver of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under right arising out of or relating to this Agreement or the transactions contemplated herebyother Transaction Documents; and
(Yii) negotiate in general, to do all things and compromiseto perform all acts in the absolute and reasonable discretion of the Sellers’ Representative, including, without limitation, (A) disputing or refraining from disputing any claim made by Buyer or any Buyer Indemnitee under or with respect to any provisions of this Agreement or any other Transaction Document, (B) acting on behalf of such the Sellers in any litigation or arbitration or mediation involving this Agreement (including the indemnification and escrow recovery obligations set forth in Article 5) or any other Transaction Document and negotiating and compromising on behalf of each Seller, any dispute that may arise under, and to exercise exercising or refrain refraining from exercising any remedies available underunder the Transaction Documents, this Agreement; and (ZC) executeexecuting, on behalf of such each Seller, any settlement agreementsettlement, release release, waiver or other document with respect to such dispute or remedy;
, (ivD) executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable to give or agree toeffectuate the provisions of this Section 8.16, on behalf of such Seller, and (E) any and all consents, waivers, amendments or modifications things deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, desirable in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf the absolute discretion of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out connection with the provisions exercise of this Agreement or any of the Escrow Agreementforegoing powers and authorities, including, without limitation, payingengaging legal counsel, releasing experts, accountants, consultants or distributing any other agents or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything representatives to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with advise the Sellers’ Representative or act on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller’s behalf in fulfilling its obligations.
(db) All This appointment and grant of power and authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may in consideration of the mutual covenants made in this Agreement and is irrevocable and will not be delegated terminated by any act of any Seller or by operation of law, whether by the death, incompetency, incapacity, bankruptcy or liquidation of any Seller or by the occurrence of any other event, and will be binding on any successor thereto. Each Seller hereby consents to the taking of any and all actions, the execution of any and all documents and agreements, and the making of any decisions required or permitted to be taken or made by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Representative pursuant to this Section 8.16. Each Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) agrees that the Sellers’ Representative shall die, become disabled, resign will have no obligation or otherwise be unable liability to fulfill his, her any Person for any action taken or its responsibilities as agent of the Sellers, or (y) omitted by the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closingin good faith, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally each Seller will indemnify and hold harmless the Sellers’ Representative for any from, and all claims debts, losses or other liabilities of any sort whatsoever incurred by will pay to the Sellers’ Representative in connection with actions taken the amount of, or omitted as reimburse the Sellers’ RepresentativeRepresentative for, including without limitation, claims by one any loss or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction expense that the Sellers’ Representative committed fraud in execution may suffer, sustain, or become subject to as a result of his duties as Sellers’ Representative that caused any such losses action or liabilities. All of the indemnities, immunities and powers granted to omission by the Sellers’ Representative under this Agreement shall survive or the termination other Transaction Documents, unless such loss or expense will have been finally adjudicated to have been caused by the willful misconduct or gross negligence of the Sellers’ Representative.
(c) Any decision or action by the Sellers’ Representative hereunder will constitute a decision or action of all of the Sellers and will be final, binding and conclusive upon each Seller, and no Seller will not have the right to object to, dissent from, protest or otherwise contest any such decision or action. Any notices required to be made or delivered to the Sellers hereunder or under any other Transaction Document will be made or delivered to the Sellers’ Representative for the benefit of the applicable Seller and the making or delivering of such notice to the Sellers’ Representative will discharge in full the applicable notice requirement.
(d) Buyer will be entitled to rely exclusively and absolutely upon the communications of the Sellers’ Representative relating to the foregoing as the communications of the Sellers, and upon any document or other paper delivered by the Sellers’ Representative as being authorized by the Sellers, from the date hereof until all obligations and transactions contemplated by and under this Agreement and any other Transaction Document will have been consummated and/or discharged. Buyer will be entitled to rely on the authority of the Sellers’ Representative to act on behalf of all of the Sellers hereunder, and Buyer will not be liable or accountable in any manner to any Seller for any action taken or omitted to be taken by Buyer based on such reliance, or for any act or omission of the Sellers’ Representative in such capacity.
(e) Xxxxxxx and any Person selected to replace Xxxxxxx pursuant to this Agreement, may resign as the Sellers’ Representative at any time by delivering prior written notice to Sellers and Buyer. Until all obligations under this Agreement and the other Transaction Documents will have been discharged, the Sellers may, from time to time upon notice to Buyer, appoint a new Sellers' Representative. If, a successor Sellers' Representative will not have been appointed by Sellers within fifteen (15) Business Days after the resignation, removal, or dissolution of the prior Sellers' Representative, Buyer may appoint a Sellers' Representative from among the Sellers and their respective Affiliates to fill any vacancy so created or may petition a court in the applicable jurisdiction to appoint a Sellers' Representative from among the Sellers and their respective Affiliates; provided, in the event Xxxxxxx is dissolved, Xxx Xxxxxxx will automatically be appointed as the Sellers’ Representative. Upon any appointment of a successor Sellers' Representative by Sellers, Sellers will give Buyer prompt written notice (in any event no later than three (3) Business Days following such appointment) of the appointment of the successor Sellers' Representative and the name and contact information for such successor Sellers' Representative.
(f) Notwithstanding the foregoing provisions of this AgreementSection 8.16, the Sellers’ Representative will have no authority to act as the attorney, agent, or representative, or to execute any documents, on behalf of any Seller to the extent they relate to any claim by a Buyer Indemnitee for indemnification under Section 5.03.
(g) The Sellers’ Representative represents acknowledges that it has carefully read and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into understands this Agreement and to consummate hereby accepts the transactions contemplated hereby, (ii) the execution appointment and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at lawdesignation made hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pam Transportation Services Inc)
The Sellers’ Representative. (a) The Sellers hereby irrevocably nominate13.1 Any consent, constitute and appoint HSSR LLC as agreement, direction or waiver given or made by the Sellers’ Representative and for the purpose of this agreement shall be binding upon all of the Sellers.
13.2 Delivery of any notice, document or payment required to be made to the Sellers or any of them pursuant to this agreement may be made to the Sellers’ Representative whose receipt for such delivery or payment shall be an absolute discharge of the party making the same who shall not be concerned as to the destination of such delivery or the application of such payment (as the agent and true and lawful attorney-in-fact of case may be).
13.3 The Sellers individually and jointly, with full power of substitution and appointment of a successor, authorise the Sellers’ Representative to act in the nameway contemplated by this agreement and to take such decisions as he shall at his entire discretion determine and, place provided he acts in good faith, the Sellers’ Representative shall have, and stead accepts, no liability to any of the Sellers for purposes or to any other person other than the Buyer in connection with or as a result of executing anything which the Sellers’ Representative does, refrains from doing or neglects or omits to do in connection with any documents matter relating to the agreement.
13.4 As between the Sellers, the Sellers’ Representative shall not be required to expend any of his own money on or in relation to the matters referred to in this agreement and taking without prejudice to the generality of the foregoing may decline to take any actions steps to dispute any Claim or Tax Claim unless the Sellers’ Representative has been indemnified and secured (if and to the extent he so requires, to his full satisfaction) in respect of the maximum amount of the expenses and other liabilities of any kind which he considers that he will or may incur in connection with or as a result of such proceedings and such indemnity and security shall be such as to ensure that the Sellers’ Representative may, has immediate access to all such funds as he may require in the Sellers’ Representative’s sole discretion, determine order to be necessary, desirable meet all such expenses or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters other liabilities as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents they fall due provided always that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine shall be obliged to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf bear his appropriate proportion of such Seller, expenses and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunderliabilities.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
The Sellers’ Representative. (a) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the Sellers’ Representative is hereby appointed, authorized and empowered to act as a Representative by and for the benefit of the Securityholders, as the exclusive agent and true and lawful attorney-in-attorney in fact of Sellers individually and jointly, with full power of substitution and appointment of a successor, to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that the Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of each Securityholder in connection with, and to facilitate the Sellers (in consummation of the name of such Seller or otherwise) any transactions contemplated hereby, which shall include the power and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitationauthority:
(i) to execute and deliver, on behalf of deliver this Agreement and the Escrow Agreement (with such Seller, and modifications or changes therein as to accept delivery of, on behalf of such Seller, all such documents as may be deemed by which the Sellers’ Representative, in his its sole discretion, shall have consented) on behalf of the Securityholders and to agree to such amendments or modifications thereto as the Sellers’ Representative, in its sole discretion, determines to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreementdesirable;
(ii) to endorse execute and to deliver on behalf such waivers and consents in connection with this Agreement, the Escrow Agreement and the consummation of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate hereby and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by thereby as the Sellers’ Representative, in his its sole discretion, to be may deem necessary or appropriate under desirable, including any amendments or relating modifications to this Agreement Agreement;
(iii) to collect and receive all moneys and other proceeds and property payable to the Securityholders from the Escrow Account as described herein or otherwise payable to the Securityholders pursuant to this Agreement, including the funds in the Escrow Account and any portion of or earnings accrued thereon which may be distributable to the Securityholders, in accordance with the Escrow Agreement, and, in each casesubject to any applicable withholding retention laws, to execute disburse and deliver pay the same to each Securityholder in accordance with the terms of this Agreement;
(iv) as the Sellers’ Representative, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Sellers’ Representative arising out of or under or in any documents that may be manner relating to this Agreement, the Escrow Agreement and each other agreement, document, instrument or certificate referred to herein or the transactions provided for herein, and to take any and all actions which the Sellers’ Representative believes are necessary or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Securityholders, including asserting or pursuing any claim against Purchaser or the Company, defending any Third Party Claims or claims by Purchaser, consenting to, compromising or settling any such claims, conducting negotiations with Purchaser or the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Legal Action, (B) investigate, defend, contest or litigate any claim or Legal Action initiated by Purchaser or the Company or any other Person, or by any Governmental Body against the Sellers’ Representative, any or all of the Securityholders, the Adjustment Escrow Amount or the Sellers’ Representative Expense Amount and receive process on behalf of any or all of the Securityholders in any such claim or Legal Action and compromise or settle on such terms as the Sellers’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to any such claim or Legal Action, (C) file any proofs of debt, claims and petitions as the Sellers’ Representative may deem advisable or necessary, and (D) file and prosecute appeals from any decision, judgment or award rendered in any such Legal Action (it being understood that the Sellers’ 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);
(v) to enforce, on behalf refrain from enforcing any right of such Seller, the Securityholders or any claim against of them or the Buyer Sellers’ Representative arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, or any other agreement, instrument or document in connection with the transactions contemplated herebyforegoing; provided, however, that no such failure to act on the part of the Sellers’ Representative, except as otherwise provided in this Agreement or in the Escrow Agreement, shall be deemed a waiver of any such right or interest by the Sellers’ Representative or by such Securityholders unless such waiver is in writing signed by the waiving party or by the Sellers’ Representative;
(vi) to engage attorneysmake, accountants execute, acknowledge and agents at 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 expense of such SellerSellers’ 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 Escrow Agreement and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith;
(vii) to amend provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in accordance with this Agreement; and
(viii) to make any payments or pay any expenses under or in connection with this Agreement or on behalf of the Escrow Agreement Securityholders.
(b) The Sellers’ Representative shall not be entitled to any fee, commission or other than compensation for the performance of its services hereunder, but shall be entitled to the payment of all of its third party expenses incurred as the Sellers’ Representative. In connection with this Section 11.14) Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the instruments powers conferred upon the Sellers’ Representative hereunder (i) the Sellers’ Representative shall incur no responsibility whatsoever to be delivered to the Buyer any Securityholder by such Seller pursuant to this Agreement reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with the Escrow Agreement or any of the transactions contemplated hereby such other agreement, instrument or thereby;
document, excepting only responsibility for any act or failure to act which represents willful misconduct and (viiiii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deemsshall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in his sole discretionthe matter at issue, necessary and any error in judgment or appropriate to carry out the provisions of this Agreement other act or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all omission of the Adjustment Escrow Account, Sellers’ Representative pursuant to such advice shall in no event subject the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunderSellers’ Representative to Liability to any Securityholder.
(c) Notwithstanding anything In the event that any amount is owed to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer whether for expense reimbursement or indemnification, that is in excess of the Sellers’ Representative Expense Amount, the Sellers’ Representative shall be entitled to deal exclusively with be reimbursed by the Securityholders (other than the Preferred Stockholders), and the Securityholders (other than the Preferred Stockholders) agree to so reimburse the Sellers’ Representative, and make the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by whole for such shortfall. Upon written notice from the Sellers’ Representative to the Securityholders (other than the Preferred Stockholders) to the existence of a shortfall, including a reasonably detailed description as to such shortfall, each Securityholder (other than the Preferred Stockholders) shall promptly deliver to the Sellers’ Representative full payment of his or her ratable share of the amount of such shortfall based upon such Securityholder’s Pro Rata Portion of the Final Merger Consideration. The Sellers’ Representative shall, when it determines that it is no longer necessary for it to retain the Sellers’ Representative Expense Amount, distribute any portion thereof to the Securityholders (other than the Preferred Stockholders) in accordance with respect their respective Pro Rata Portion.
(d) Purchaser and the Surviving Corporation shall have the right to any Representative Matters, and on any other action rely upon all actions taken or purported omitted to be taken on behalf of any Seller by the Sellers’ Representative with respect pursuant to any Representative Matters, as fully binding, final and conclusive this Agreement (including the Escrow Agreement) all of which actions or omissions shall be legally binding upon such Sellerthe Securityholders.
(de) All The grant of authority of the Sellers’ Representative granted hereunder, including without limitation, the power of attorney granted in Section 11.14(a): provided for herein (i) is coupled with an interest and is irrevocable; shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at lawhereby.
Appears in 1 contract
The Sellers’ Representative. 18.1 The Sellers' Representative is hereby duly authorized by the Sellers to be their representative and, may bind the Sellers in respect of those matters in this Agreement delegated to the Seller's Representative.
18.2 The Sellers' Representative or any successor Sellers' Representative shall have the power to substitute any Seller (awith such Seller's consent) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as a successor Sellers' Representative hereunder. In the event that the Sellers’ ' Representative is unable to perform his duties hereunder and unable to substitute a successor Sellers' Representative by reason of the death or incapacity of the Sellers' Representative and no substitute Sellers' Representative has previously been appointed, a substitute Sellers' Representative shall be appointed by the Sellers holding a majority of the Shares as of the agent and true and lawful attorney-in-fact date of this Agreement.
18.3 The Sellers' Representative shall act for the Sellers individually and jointly, with full power of substitution and appointment of on all matters delegated to the Sellers' Representative in this Agreement in a successor, manner the Sellers' Representative believes (in his absolute discretion) to act be in the name, place and stead best interests of the Sellers for purposes of executing any documents and taking any actions that consistent with his obligations under this Agreement, but the Sellers’ ' Representative mayshall not be responsible to the Sellers for any loss or damages the Sellers may suffer by reason of the performance by the Sellers' Representative of his duties under the Agreement, other than loss or damage arising from wilful violation of the law in the Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out performance of his duties under this Agreement or Escrow Agreement, includingand the Sellers (other than the Excluded Sellers) shall indemnify and keep the indemnity the Sellers' Representative accordingly.
18.4 All actions, without limitationdecisions and instructions of the Sellers' Representative taken, in connection with (i) the Working Capital Adjustment made or given pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant authority granted to the Sellers’ ' Representative full authority to execute, deliver, acknowledge, certify hereunder shall be conclusive and file on behalf binding upon all of the Sellers (in and no Seller shall have the name of such Seller right to object, dissent, protest or otherwise) any and all documents otherwise contest the same. The parties agree that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) enquiry on any document executed action, decision or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority instruction of the Sellers’ ' Representative granted hereundermade pursuant to this Agreement as being a valid action, including without limitation, the power of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death decision or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent instruction of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any such successor shall become the “the Sellers’ ' Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellers.
(f) All expenses incurred by Sellers’ Representative in connection with the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery by Sellers’ Representative of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Agere Systems Inc)
The Sellers’ Representative. (a) The Each of the Sellers does hereby irrevocably nominatemake, constitute and appoint HSSR LLC as the Sellers’ ' Representative as his, her or its agent, to act in his or her or its name, place and stead, as the agent and true and lawful such Seller's attorney-in-fact of Sellers individually and jointly, with full power of substitution and appointment of a successorfact, to act (i) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the other Transaction Documents (including in the namename of, place or on behalf of, such Seller), (ii) make all elections or decisions entered into in connection with this Agreement and stead the other Transaction Documents, (iii) hold such Seller's Securities and transfer such Seller's Securities to Buyer on the Closing Date, (iv) act on such Seller's behalf in connection with all obligations and agreements of the Sellers for purposes of executing any documents and taking any actions that under the Sellers’ Representative maySeller Transaction Documents, in (v) amend, waive or other change the Sellers’ Representative’s sole discretion, determine to be necessary, desirable terms or appropriate in all matters relating to or arising out conditions of this Agreement or Escrow Agreement, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3, (ii) any Tax matters as described in ARTICLE 9, (iii) the Adjustment Escrow Account, the Indemnity Escrow Account and the Regulatory Permit Escrow Account, (iv) the amount of the Aggregate Contingent Payment, or (v) any claim for indemnification, compensation or reimbursement under this Agreement (collectively, the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Sellers (in the name of such Seller or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, other Transaction Document on behalf of such Seller, (vi) defend, settle and make payments to accept delivery of, the Buyer Indemnified Parties on behalf of such Seller, all such documents as may be deemed Seller in connection with any claim for indemnification made by the Sellers’ Representative, in his sole discretion, any Buyer Indemnified Party pursuant to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;
(ii) to endorse Section 14 and to deliver initiate and prosecute any claim for indemnification made by or on behalf of such SellerSeller pursuant to Section 14, irrevocable stock powers representing (vii) receive any payments of the Purchase Price or other amounts due to such Seller under the Seller Transaction Documents, direct any portion of such amounts to any escrow account or the Reserve Account and to retain such amounts in such accounts for so long as Sellers' Representative shall determine, (viii) give and receive on behalf of Sellers any and all notices from or to any Seller or Sellers under the Transaction Documents, (ix) incorporate corporations, organize partnerships, organize limited liability companies on behalf of the Sellers and take all actions in connection therewith (including, but not limiting to, the transfer of any assets or liabilities of the Company Stock;
and its Subsidiaries to which the Sellers are entitled or responsible for satisfying pursuant to the terms of the Transaction Documents), and (iiix) to: (X) dispute or refrain from disputing, otherwise exercise all rights of such Sellers and otherwise act on behalf of such Seller, any claim made by Seller under the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate Transaction Documents and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or with any of the transactions contemplated by the Transaction Documents, in each case as if such Seller had personally done such act, and the Sellers' Representative hereby accepts such appointment. Any proceeds received by the Sellers' Representative from Buyer or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, Guarantor on behalf of such Seller, the Sellers shall be distributed to the Sellers as promptly as practicable by the Sellers’ Representative deems' Representative, in his sole discretion, necessary or appropriate to carry out accordance with the terms and provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance other Transaction Documents. The death, incapacity, dissolution, liquidation, insolvency or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf bankruptcy of any Seller by Sellers’ Representative with respect to any Representative Matters, shall not terminate such appointment or the authority and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative with respect to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority agency of the Sellers’ Representative granted hereunder, including without limitation, the power of ' Representative. The power-of-attorney granted in this Section 11.14(a): (i) 15.1 is coupled with an interest and is irrevocable; .
(iib) may The Sellers' Representative shall be delegated entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Seller, Buyer, Guarantor, any third Person or any other evidence deemed by the Sellers’ Representative; ' Representative to be reliable, and the Sellers' Representative shall be entitled to act on the advice of counsel selected by it. The Sellers' Representative shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless it shall have received such advice or concurrence of such Sellers as it deems appropriate or it shall have been expressly jointly and severally indemnified to its satisfaction by the Sellers appointing it against any and all Damages and other liabilities and expenses that the Sellers' Representative may incur by reason of taking or continuing to take any such action.
(iiic) The Sellers' Representative shall survive be entitled to retain counsel acceptable to it and to incur such expenses as the dissolutionSellers' Representative deems to be necessary or appropriate in connection with its performance of its obligations under this Agreement and the other Transaction Documents, death and all such fees and expenses (including reasonable attorneys' fees and expenses) incurred by the Sellers' Representative shall be a Transaction Expense or incapacity otherwise shall be jointly and severally borne by each Seller. The Sellers' Representative shall have the right to deduct any reimbursement amounts payable to the Sellers' Representative pursuant to this Section 15.1 from any reserve account established and maintained by the Sellers' Representative in connection with the transactions contemplated hereby (the "Reserve Account") without any prior or further approval from the Sellers.
(d) The Sellers hereby agree to jointly and severally indemnify the Sellers' Representative (in its capacity as such) against, and to hold the Sellers' Representative (in its capacity as such) harmless from, any and all Damages and other liabilities and expenses of whatever kind which may at any Seller and continue until all rights and obligations time be imposed upon, incurred by or asserted against the Sellers' Representative in such capacity in any way relating to or arising out of all Sellers have expired, been terminated its action or fully performedfailures to take action pursuant to this Agreement or any other Transaction Document.
(e) If J.P. Morgan Partners (x) BHCA), L.P. shall be the initial Sellers' Reprexxxxxxxxx xnd shall serve as the Sellers’ ' Representative shall dieuntil its resignation. Upon the resignation of J.P. Morgan Partners (BHCA), become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafterL.P., the Sellers holding at least representing a majority majoritx xx xxx xxgregate Ownership Percentages of all Sellers shall select a new Sellers' Representative. Each time a new Sellers' Representative is appointed pursuant to this Agreement, such Person, as a condition precedent to the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity effectiveness of such successor. Any appointment, shall accept such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to the Sellersposition in writing.
(f) All expenses incurred The provisions of this Section 15 shall in no way impose any obligations on Buyer or Guarantor. In particular, notwithstanding any notice received by Sellers’ Representative in connection with Buyer or Guarantor to the performance of his duties as Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless the Sellers’ Representative for any and all claims debts, losses or other liabilities of any sort whatsoever incurred by the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellerscontrary, and excluding only claimsabsent bad faith or willful misconduct, losses and liabilities based upon a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. All of the indemnities, immunities and powers granted to the Sellers’ Representative under this Agreement shall survive the termination of this Agreement.
(g) Sellers’ Representative represents and warrants to the Company and Buyer that (i) shall be fully protected in relying upon and shall be entitled to rely upon, and shall have no liability to the Sellers with respect to, actions, decisions and determinations of the Sellers’ ' Representative has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution shall be entitled to assume that all actions, decisions and delivery by Sellers’ Representative of this Agreement and the consummation determinations of the transactions contemplated hereby have been duly Sellers' Representative are fully authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of Sellers’ Representative or its equityholders is necessary, and (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
Appears in 1 contract
The Sellers’ Representative. (ai) The Sellers hereby irrevocably nominate, constitute and appoint HSSR LLC as the Sellers’ Representative and shall have the authority to act as the agent for, and true and lawful to bind and/or execute any documents as attorney-in-fact of for, any and all Sellers individually in connection with this Agreement and jointly, with full power of substitution and appointment of a successor, each Ancillary Agreement to act in the name, place and stead of the Sellers for purposes of executing any documents and taking any actions that which the Sellers’ Representative mayis a party. Such authority shall include the sole and exclusive authority to (A) assert, in the Sellers’ Representative’s sole discretionpursue, determine to be necessarydefend against, desirable or appropriate in all matters relating to or arising out of this Agreement or Escrow Agreementcontest, including, without limitation, in connection with (i) the Working Capital Adjustment pursuant to Section 1.3and settle claims for indemnification hereunder, (iiB) exercise any Tax matters as described in ARTICLE 9other rights and remedies that may be available to any Seller hereunder, (iiiC) defend against, contest, and settle the Adjustment Escrow Accountassertion of any other rights or remedies by the Buyer hereunder, the Indemnity Escrow Account and the Regulatory Permit Escrow Account(D) execute and deliver amendments, (iv) the amount of the Aggregate Contingent Paymentconsent, or (v) any claim for indemnification, compensation or reimbursement and waivers to and under this Agreement (collectively, and each such Ancillary Agreement. Each Seller shall retain the “Representative Matters”).
(b) The Sellers irrevocably grant to the Sellers’ Representative full authority to execute, deliver, acknowledge, certify act on his or its own behalf with respect to matter not covered by the preceding sentence and file on behalf of the Sellers (in the name of such Seller not otherwise expressly required or otherwise) any and all documents that the Sellers’ Representative may, in Sellers’ Representative’s sole discretion, determine permitted to be necessary, desirable or appropriate, in such forms and containing such provisions as Sellers’ Representative may, in the Sellers’ Representative’s sole discretion, determine to be appropriate, in performing the Sellers’ Representative’s duties as contemplated by Section 11.14(a), including without limitation:
(i) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, all such documents as may be deemed taken solely by the Sellers’ Representative, in his sole discretion, to be appropriate to consummate or relating to the transactions contemplated by this Agreement or the Escrow Agreement;.
(ii) to endorse The Buyer and to deliver on behalf of such Seller, irrevocable stock powers representing the Company Stock;
(iii) to: (X) dispute or refrain from disputing, on behalf of such Seller, any claim made by the Buyer or any other Person under or relating to this Agreement or the transactions contemplated hereby; (Y) negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (Z) execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) to give or agree to, on behalf of such Seller, any and all consents, waivers, amendments or modifications deemed by the Sellers’ Representative, in his sole discretion, to be necessary or appropriate under or relating this Agreement and Escrow Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith;
(v) to enforce, on behalf of such Seller, any claim against the Buyer arising under or relating to this Agreement or the transactions contemplated hereby;
(vi) to engage attorneys, accountants and agents at the expense of such Seller;
(vii) to amend this Agreement or the Escrow Agreement (other than this Section 11.14) or any of the instruments to be delivered to the Buyer by such Seller pursuant to this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(viii) to receive notices and communications pursuant to this Agreement or the Escrow Agreement; and
(ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Sellers’ Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement or the Escrow Agreement, including, without limitation, paying, releasing or distributing any or all of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Regulatory Permit Escrow Account balance or otherwise paying Losses hereunder.
(c) Notwithstanding anything to the contrary contained in this Agreement or in any other contract executed in connection with the transactions contemplated hereby, and notwithstanding any disagreement or dispute among the Sellers, or between one or more of Sellers and the Sellers’ Representative, Buyer shall be entitled to deal exclusively with the Sellers’ Representative on all Representative Matters, and shall be entitled to rely conclusively on the authority granted pursuant to the foregoing clause (without further evidence of any kind whatsoeveri) on any document executed or purported to be executed on behalf of any Seller by Sellers’ Representative with respect to any Representative Matters, and on any other action taken or purported to be taken on behalf of any Seller by until the Sellers’ Representative with respect delivers written notice to any Representative Matters, as fully binding, final and conclusive upon such Seller.
(d) All authority the Buyer of the appointment of a successor Sellers’ Representative granted hereunderapproved in writing in advance by the Buyer (such approval not to be unreasonably withheld, including without limitationconditioned, or delayed), in which case, effective upon the date specified in such notice, the power Buyer and the Company shall be entitled to rely on the authority of attorney granted in Section 11.14(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the dissolution, death or incapacity of any Seller and continue until all rights and obligations of all Sellers have expired, been terminated or fully performed.
(e) If (x) the such successor Sellers’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his, her or its responsibilities as agent of the Sellers, or (y) the Sellers’ Representative is removed by the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing, then Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall, within ten (10) days after such removal, death or disability, appoint a successor agent for the Sellers by vote of the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing and, promptly thereafter, the Sellers holding at least a majority of the Company Stock outstanding immediately prior to Closing shall notify Buyer of the identity of such successor. Any and such successor shall become the “the Sellers’ Representative” for purposes of this Agreement. If for any reason there is no Sellers’ Representative at any time, all references herein to Sellers’ Representative shall be deemed to refer to be the Sellers.
(f) All expenses incurred by Sellers’ Representative for all purposes under this Agreement and each Ancillary Agreement to which the Sellers’ Representative is a party. In the event that the Sellers’ Representative becomes unable or unwilling to perform his or its responsibilities hereunder or under any Ancillary Agreement to which he, or it is a party or resigns from such position, the Sellers having a majority of the aggregate Allocable Percentages shall, as promptly as practicable, appoint a successor Sellers’ Representative and deliver written notice thereof to the Buyer, in connection with which case, effective upon the performance of his duties as date specified in such notice, such successor Sellers’ Representative shall be borne and paid exclusively by the Sellers out of their own funds. The Sellers jointly and severally indemnify and hold harmless deemed to be the Sellers’ Representative for any all purposes under this Agreement and all claims debts, losses or other liabilities of any sort whatsoever incurred by each Ancillary Agreement to which the Sellers’ Representative in connection with actions taken or omitted as Sellers’ Representative, including without limitation, claims by one or more of Sellers, and excluding only claims, losses and liabilities based upon is a finding by a court of competent jurisdiction that the Sellers’ Representative committed fraud in execution of his duties as Sellers’ Representative that caused such losses or liabilities. party.
(iii) All of the indemnitiespowers, authorities, rights, and immunities and powers granted to the Sellers’ Representative under this Agreement or any Ancillary Agreement to which it is a party shall survive the termination Closing. The grant of authority provided to the Sellers’ Representative under this AgreementAgreement and each such Ancillary Agreement is coupled with an interest, shall be irrevocable, and shall survive the death, incompetency, bankruptcy, or liquidation of any Seller.
(giv) The Sellers’ Representative represents and warrants shall not be liable to the Company and Buyer that (i) Sellers’ Representative has all requisite power and authority Sellers for actions taken pursuant to enter into this Agreement or any Ancillary Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and to consummate the transactions contemplated hereby, (ii) the execution other professionals and delivery experts retained by Sellers’ Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with their respective Allocable Percentages), indemnify and hold harmless the Sellers’ Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Sellers’ Representative under this Agreement and any Ancillary Agreement (the consummation “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sellers’ Representative, and no other authorization or consent of the Sellers’ Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or its equityholders is necessarybad faith. The Representative Losses shall be satisfied from the Sellers, severally and not jointly (iii) this Agreement has been duly executed and delivered by Sellers’ Representative, and, assuming this Agreement constitutes the valid and binding obligation of the other parties hereto, this Agreement constitutes a valid and binding obligation of Sellers’ Representative, enforceable against Sellers’ Representative in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar applicable Laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at lawtheir respective Allocable Percentages).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (XL Fleet Corp.)
