The Representative. (a) Each Seller other than THC hereby irrevocably appoints THC as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby. (b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC shall be deemed to have been provided to each Seller. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller. (c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THC.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lowell Farms Inc.), Asset Purchase Agreement
The Representative. (a) Each Seller other than THC hereby irrevocably appoints THC as By virtue of the sole and exclusive representative adoption of such Seller regarding any matter relating to or arising under this Agreement, the other Transaction Documents Escrow Agreement and approval of the Merger and the transactions contemplated hereby by the Company Stockholders, each Company Stockholder (regardless of whether or not such Company Stockholder votes in favor of the adoption of the Agreement, the Escrow Agreement and thereby.
(bthe approval of the Merger and the transactions contemplated hereby, whether at a meeting or by written consent in lieu thereof) Each Seller other than THC hereby appoints THC shall be deemed to have appointed, effective from and after the approval of the Merger, Representative to act as such Seller’s his, her or its representative and true and lawful attorney-in-fact and agentfact, with full powers power of substitution substitution, in such holder’s name and resubstitutionon such holder’s behalf, under this Agreement and the Escrow Agreement in the absolute discretion of the Representative in accordance with the terms of this Section 1.18. This power of attorney, attorney and all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be is irrevocable and shall not be terminated by any act of any Sellersuch holder, by operation of applicable Law, whether law or by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event, except as expressly set forth herein. All The Representative may resign and shall be discharged of his duties hereunder upon the appointment of a successor Representative as hereinafter provided. In case of such resignation, or in the event of death or inability to act of the Representative, a successor shall be named from among the holders of Company Common Stock or their designated representatives upon the affirmative vote of the holders of a majority of the Company Common Stock outstanding as of the Closing. Any person or entity appointed to replace a former Representative shall execute a statement agreeing to perform the duties set forth in this Agreement. The appointment of a replacement Representative shall become effective upon delivery of such statement to Parent and the Surviving Corporation. Each successor Representative shall have all the power, authority, rights and privileges hereby conferred upon the original Representative, and the term “Representative” as used herein shall be deemed to include such successor Representative.
(b) From and after the Effective Time, the Representative shall be authorized to: (i) take all actions taken required by, and exercise all rights granted to, the Representative in this Agreement and in the Escrow Agreement; (ii) receive all notices or other documents given or to be given to the Representative by THC Parent pursuant to this Agreement and the Escrow Agreement; (iii) negotiate, undertake, compromise, defend, resolve and settle any suit, proceeding or dispute under this Agreement and the Escrow Agreement; (iv) execute and deliver all agreements, certificates and documents required by the Representative in connection with any of the Transaction Documents shall be binding upon each Seller Merger and each the transactions contemplated by this Agreement and the Escrow Agremeent; (v) engage special counsel, accountants and other advisors and incur such Seller’s successors as if expressly confirmed and ratified other expenses in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of THC taken in good faith under connection with any of the Transaction Documents are waived. Without limitation transactions contemplated by this Agreement and the Escrow Agreement; and (vi) take such other action as is necessary on behalf of the foregoingCompany Stockholders in connection with this Agreement, the Escrow Agreement and the Merger and the transactions contemplated hereby, including, without limitation, all such other matters as the Representative may deem necessary or appropriate to carry out the intents and purposes of this Agreement and the Escrow Agreement. Representative shall be entitled to rely upon any notice provided order, judgment, certificate, demand, notice, instrument or other writing delivered to THC it hereunder without being required to investigate the validity, accuracy or content thereof, nor shall Representative be responsible for the validity or sufficiency of this Agreement or the Escrow Agreement.
(c) By virtue of the adoption of this Agreement, the Escrow Agreement and the approval of the Merger and the transactions contemplated hereby by the Company Stockholders, each Company Stockholder shall be deemed to have been provided to each Seller. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret released the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendmentsRepresentative from, and other documents required or permitted agreed to be given in connection with indemnify the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunderRepresentative against, (iii) receive service of process in connection with liability for any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser Representative in its capacity as such Representative, except for the liability of the Representative to THC shall be deemed a Company Stockholder for loss which such holder may suffer from fraud committed by the Representative in carrying out its duties hereunder, and (ii) appointed, as of such approval, the Representative as such Company Stockholder’s true and lawful agent and attorney-in-fact to have been delivered to all Sellers. The Purchaser shall be entitled to disregard enter into any decisions, communications or writings made, given or executed by any Seller agreement in connection with the Merger and the transactions by this Agreement and the transactions Escrow Agreement, to exercise all or any of the powers, authority and discretion conferred on such Company Stockholder under any such agreement, to give and receive notices on such Company Stockholder’s behalf and to be such Company Stockholder’s exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated hereby unless by such agreement, including, without limitation, the same is madedefense, given settlement or executed by THCcompromise of any claim, action or proceeding for which Parent or the Surviving Corporation may be entitled to indemnification. All actions, decisions and instructions of the Representative shall be conclusive and binding upon all of the Company Stockholders.
Appears in 1 contract
The Representative. (a) Each Seller other than THC Party hereby irrevocably appoints THC the Representative as the sole and exclusive representative of such Seller Party regarding any matter relating to or arising under this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC Party hereby appoints THC the Representative as such SellerSeller Party’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC the Representative hereunder are granted and shall be irrevocable and shall not be terminated by any act of any SellerSeller Party, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC the Representative under any of the Transaction Documents shall be binding upon each Seller Party and each such SellerSeller Party’s successors as if expressly confirmed and ratified in writing by such SellerSeller Party, and all defenses which may be available to any Seller Party to contest, negate or disaffirm the action of THC the Representative taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC the Representative shall be deemed to have been provided to each SellerSeller Party. THC The Representative shall promptly deliver to each Seller Party any notice received by THC the Representative concerning this Agreement. Without limiting the generality of the foregoing, THC the Representative has full power and authority, on behalf of each Seller Party and each SellerSeller Party’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller Party in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC the Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC the Representative on behalf of the Sellers Seller Parties in connection with the Transaction Documents. THC The Representative shall be entitled to: (i) rely upon any signature of a Seller Party believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable SellerSeller Party.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC the Representative in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC the Representative on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THCthe Representative, for or on behalf of any SellerSeller Party, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such SellerSeller Party. Any notice or communication delivered by the Purchaser to THC the Representative shall be deemed to have been delivered to all SellersSeller Parties. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller Party in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THCthe Representative.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Selling Securityholders hereby irrevocably appoints THC authorize, direct and appoint Robe▇▇ ▇▇▇▇▇▇▇ ▇▇ act as the sole and exclusive agent, attorney-in-fact and representative of the Selling Securityholders (the "REPRESENTATIVE"), and hereby further authorize and direct the Representative (i) to take any and all actions (including, without limitation, executing and delivering any and all agreements, instruments, certificates and other documents, defending any and all Third Party Claims on behalf of the Selling Securityholders as provided in Section 6.7 hereof, incurring any and all costs and expenses for the account of the Selling Securityholders in connection with the foregoing or otherwise (which costs and expenses shall constitute Damages incurred or suffered by Purchaser within the meaning of this Article VI) and making any and all determinations) which may be required or permitted by this Agreement or any of the Related Agreements to be taken by the Selling Securityholders or the Representative, (ii) to exercise such Seller regarding any matter relating other rights, power and authority as are authorized, delegated and granted to or arising the Representative hereunder and under this Agreement, the other Transaction Documents and terms of the Escrow Agreement in connection with the transactions contemplated hereby and thereby, and (iii) to exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Selling Securityholder as if such Selling Securityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Selling Securityholder's individual capacity. Notwithstanding anything to the contrary contained in this Agreement, with respect to the specific matters set forth in this Article VI, (i) each of the Selling Securityholders hereby irrevocably relinquishes such Selling Securityholder's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 6.8(b) hereof, and (ii) no Selling Securityholders shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, the Purchaser or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with the terms of this Agreement and the Escrow Agreement.
(b) Each Seller other than THC hereby appoints THC The Representative shall serve as Representative until his resignation, removal from such Seller’s true position of responsibility, incapacity or death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Selling Securityholders, and lawful attorney-in-fact (ii) selecting a successor representative, acceptable to a majority in interest of the Selling Securityholders and agentreasonably satisfactory to the Purchaser, with full powers who shall serve until a successor thereto is elected by the Selling Securityholders. The Representative may be removed at any time, and a successor representative reasonably satisfactory to the Purchaser may be appointed pursuant to a written instrument signed by the Selling Securityholders holding a majority in interest of substitution and resubstitutionthe Company Shares (calculated on a fully diluted basis) immediately prior to the consummation of the transactions contemplated by this Agreement. This power Any successor to the Representative shall, for purposes of attorney, all authority hereby conferred this Agreement and the powersEscrow Agreement, immunities and rights be deemed to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Sellerbe, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any from the time of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified appointment thereof in writing by such Selleraccordance with the terms hereof, the Representative, and all defenses which may be available to any Seller to contestfrom and after such time, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless and until such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents this Agreement and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusivelyRepresentative shall be permitted to independently retain counsel, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement consultants and the transactions contemplated hereby. other advisors and shall promptly notify the Purchaser is entitled to deal exclusively with THC after retaining any such person.
(d) The provisions of this Section 6.8 shall in no way impose any obligations on all matters relating to this Agreement the Purchaser, and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of notwithstanding any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered received by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The the contrary (except any notice of the appointment of a successor Representative approved by the Purchaser in accordance with Section 6.7(b) hereof), the Purchaser (i) shall be entitled to disregard rely upon and shall be fully protected in relying upon and, shall have no liability to the Selling Securityholders with respect to, and shall be indemnified by the Selling Securityholders for, from and against any decisionsand all liability arising out of actions, communications decisions and determinations of the Representative, which liabilities shall constitute Damages within the meaning of this Article VI, and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Selling Securityholders for all purposes under this Agreement.
(e) The Representative shall not be liable to the Selling Securityholders for the performance of any act, or writings madethe failure to act, given provided the Representative acted or executed by any Seller failed to act in connection with good faith and in a manner such Representative reasonably believed to be in the scope of such Representative's authority under this Agreement and under the transactions contemplated hereby unless Escrow Agreement and for a purpose which such Representative reasonably believed to be in the same is madebest interests of the Selling Securityholders, given or executed by THCconsidered together as a group.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Company and the Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇ ▇▇▇▇▇▇▇ to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerShareholders (the "Representative"), and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of Section 6.1(a) hereof) and making any and all determinations) which may be available required or permitted by this Agreement or the Escrow Agreement to be taken by the Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Indemnitor as if such Indemnitor personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnitor's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article VI, (i) each of the Shareholders irrevocably relinquishes such Shareholders' right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 6.7(b) below, and (ii) no Shareholders shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, Parent or the Escrow Agent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement and the Escrow Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (A) prior written notice to the Shareholders and (B) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Shareholders who, immediately prior to the Effective Time, held shares of THC taken in good faith under any Company Common Stock constituting 66 2/3% or more of all such shares then outstanding. Any successor to the Representative shall, for purposes of this Agreement and the Escrow Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "Representative" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements the Registration Rights and compromises of, assume Stock Restriction Agreement and the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable SellerEscrow Agreement.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Parent after retaining any such person.
(d) The provisions of this Section 6.7 shall in no way impose any obligations on Parent (other than those set forth in paragraph (c) above). In particular, given or executed notwithstanding any notice received by such Seller. Any Parent to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC Parent in accordance with paragraph (b) of this Section 6.7), Parent (i) shall be deemed to have been delivered to all Sellers. The Purchaser fully protected in relying upon and shall be entitled to disregard rely upon, shall have no liability to the Shareholders with respect to, and shall be indemnified by the Shareholders from and against all liability arising out of (any decisionssuch indemnifiable amounts constituting Damages within the meaning of Section 6.1(a) hereof) actions, communications decisions and determinations of the Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Shareholders.
(e) The Representative shall not be liable to the Shareholders for the performance of any act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCShareholders.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (American Business Information Inc /De)
The Representative. (a) Each Seller other than THC With respect solely to the Escrow Agreement and the provisions of this Article XI and the negotiations of the Technical Milestones pursuant to Section 2.02, the Shareholders hereby irrevocably appoints THC authorize, direct and appoint Neer▇▇ ▇▇▇▇▇▇ ▇▇ act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerShareholders (the "Representative"), and hereby further authorize and direct the Representative (i) to take any and all defenses actions (including, without limitation, executing and delivering any and all agreements, instruments, certificates and other documents, incurring any and all costs and expenses for the account of the Shareholders (which costs and expenses shall constitute Damages incurred or suffered by Buyer within the meaning of this Article XI) and making any and all determinations which may be available required or permitted under this Article XI, Section 2.02 or the Escrow Agreement to be taken by the Shareholders or the Representative, (ii) to exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection with this Article XI, Section 2.02 and the Escrow Agreement, and (iii) to exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, or authority or made such decision or determination in such Shareholder's individual capacity. Notwithstanding anything to the contrary contained in this Agreement, with respect to the specific matters set forth in this Article XI and Section 2.02, (i) each Shareholder hereby irrevocably relinquishes such Shareholder's right to act independently and other than through the representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 11.08(b) hereof, and (ii) no Shareholder shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company or the Buyer, with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with the terms of this Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from such position of responsibility, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Shareholders, and (ii) selecting a successor representative reasonably satisfactory to the Buyer who shall serve until a successor thereto is elected by the Shareholders. The Representative may be removed at any time, and a successor representative reasonably satisfactory to Buyer may be appointed pursuant to written action by the Shareholders who, immediately prior to the Closing Date, held shares of THC taken in good faith under any Common Stock constituting at least a majority of all such shares then outstanding. Any successor to the Representative shall, for purposes of this Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "Representative" as used herein and therein shall be deemed to have been provided to each Seller. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect refer to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documentssuccessor. THC shall be entitled to: (i) rely upon any signature No appointment of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, successor shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THC.be
Appears in 1 contract
The Representative. Each of the Seller and each Shareholder hereby appoints ▇▇▇▇▇▇▇ ▇▇▇ its legal representative (a) Each such Person and any successor or successors being the "REPRESENTATIVE"), as each such Seller other than THC hereby irrevocably appoints THC as the sole or Shareholder's Attorney-in-Fact and exclusive representative representative, to act on behalf of such Seller regarding or Shareholder (i) with respect to any matter relating claims (including the settlement thereof) made by such party for indemnification pursuant to Article VI and (ii) with respect to any actions to be taken in connection with the Post-Closing Adjustment to the Purchase Price pursuant to Section 2.08. In the event that the Representative becomes unable or arising unwilling to continue in his capacity as Representative under this Agreement, the other Transaction Documents Seller and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agentShareholders shall promptly appoint a successor Representative, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and who shall be irrevocable and shall not be terminated by reasonably acceptable to the Purchaser (it being agreed that any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC Shareholder shall be deemed reasonably acceptable), by written notice to have been provided the Purchaser. All references herein to each Sellerthe "Representative" shall include any such successor Representative. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each The Seller and each Seller’s successors the Shareholders hereby consent to the taking by the Representative of any and assigns, to: (i) interpret the terms and provisions of the Transaction Documents all actions and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries making of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents any decisions required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims taken by him under this Agreement, (iv) agree to, negotiate, enter into settlements . The Seller and compromises of, assume each of the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take Shareholders shall be bound by all actions necessary or appropriate taken by the Representative in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documentshis capacity thereof. THC The Purchaser shall be entitled to: (i) rely to rely, as being binding upon such party, upon any signature of a Seller document or other paper believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization correct and to sign on behalf have been signed or sent by the Representative, and the Purchaser shall not be liable to any of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification Seller or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any any Shareholders for any action taken or not omitted to be taken or decisions, communications or writings made, given or executed by THC, for or on behalf it in such reliance. Copies of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, notice given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC the Representative shall be deemed provided to have been delivered to all Sellers. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller each of those persons specified in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THCSection 7.02.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Company and the ICL Principals hereby irrevocably appoints THC authorize, direct and appoint any two of the three of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ to act as the sole and exclusive representative agents, attorneys-in-fact and representatives of the ICL Principals (COLLECTIVELY, THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all actions (including without limitation executing and delivering any documents, subject to the limitations contained in the last sentence of Section 9.1(a), -------------- incurring any costs and expenses for the account of the ICL Principals (which will constitute Damages incurred or suffered by Parent within the meaning of Section 9.1(a) hereof) and making any and all -------------- determinations) which may be required or permitted by this Agreement to be taken by the ICL Principals or the Representative, (ii) exercise such Seller regarding any matter relating other rights, power and authority as are authorized, delegated and granted to or arising under this Agreement, the other Transaction Documents and Representative hereunder in connection with the transactions contemplated hereby and thereby(iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Indemnitor as if such Indemnitor personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnitor's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article IX, (i) each of the ICL Principals ---------- irrevocably relinquishes such ICL Principal's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 9.6(b) below, and (ii) no ICL -------------- Principals shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company or Parent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement.
(b) Each Seller other than THC hereby appoints THC The Representative shall serve as such Seller’s true and lawful attorney-in-fact and agentRepresentative until his resignation, with full powers of substitution and resubstitution. This power of attorneyremoval from office, all authority hereby conferred and incapacity or death; provided, however, that the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and Representative shall not have the right to resign (A) without prior written notice to the ICL Principals and (B) until a successor thereto is elected by the ICL Principals and notification is given to Parent. The Representative may be terminated removed at any time, and a successor representative may be appointed, pursuant to written action by any act ICL Principals. Any successor to the Representative shall, for purposes of any Sellerthis Agreement, by operation of applicable Lawbe deemed to be, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any from the time of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified appointment thereof in writing by such Selleraccordance with the terms hereof, the Representative, and all defenses which may be available to any Seller to contestfrom and after such time, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning the terms of this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors.
(d) The provisions of this Section 9.6 shall in no way ----------- impose any obligations on Parent. In particular, given or executed notwithstanding any notice received by such Seller. Any Parent to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC Parent in accordance with paragraph (b) of this Section 9.6), Parent (i) shall ----------- be deemed to have been delivered to all Sellers. The Purchaser fully protected in relying upon and shall be entitled to disregard rely upon, shall have no liability to the ICL Principals with respect to, and shall be indemnified by the ICL Principals subject to the limitations contained in the last sentence of Section 9.1(a) from and against all -------------- liability arising out of (any decisionssuch indemnifiable amounts constituting Damages within the meaning of Section 9.1(a) hereof) actions, communications -------------- decisions and determinations of the Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the ICL Principals.
(e) The Representative shall not be liable to the ICL Principals for the performance of any act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCICL Principals.
Appears in 1 contract
Sources: Yptel Agreement (Advanced Communications Group Inc/De/)
The Representative. (a) Each Seller other than THC The Company, on behalf of each Indemnitor, hereby irrevocably authorizes, directs and appoints THC ▇▇. ▇▇▇▇-▇▇▇▇ S. Day, Ph.D., to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agentrepresentative of the Indemnitors for purposes of this Agreement, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred the Aries Merger Agreement and the powersEscrow Agreement (the "Representative"), immunities and rights authorizes and directs the Representative to indemnification granted to THC hereunder are granted (i) take any and shall be irrevocable all actions (including without limitation executing and shall not be terminated by delivering any act of documents, incurring any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any costs and expenses for the account of the Transaction Documents shall be binding upon each Seller Indemnitors (which will constitute Damages incurred or suffered by the Parent within the meaning of Section 8.1(a) hereof) and each such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, making any and all defenses determinations) which may be available required or permitted by this Agreement, the Aries Merger Agreement or the Escrow Agreement to be taken by the Indemnitors or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder and under the Aries Merger Agreement and the Escrow Agreement in connection with the transactions contemplated hereby and thereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Indemnitor as if such Indemnitor personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnitor's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article 8, (x) each of the Indemnitors irrevocably relinquishes such Indemnitor's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 8.5(b) below, and (y) no Indemnitor shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, the Parent or the Escrow Agent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement, negate the Aries Merger Agreement and the Escrow Agreement.
(b) The Representative shall serve as Representative until his resignation, removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (A) prior written notice to the Indemnitors and (B) picking a successor reasonably satisfactory to the Parent to serve until a successor thereto is elected by the Indemnitors. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to the Parent, may be appointed, pursuant to written action by Indemnitors who, immediately prior to the Effective Time, held shares of THC taken in good faith under any Company Stock constituting 66 2/3% or more of all such shares then outstanding. Any successor to the Representative shall, for purposes of this Agreement, the Aries Merger Agreement and the Escrow Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "Representative" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements the Aries Merger Agreement and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable SellerEscrow Agreement.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings made, given or executed by consultants and other advisors and shall promptly notify the Parent after retaining any such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellersperson. The Purchaser Representative shall be entitled to disregard any decisions, communications or writings made, given or executed reimbursement by any Seller the Parent of the reasonable out-of-pocket expenses incurred by the Representative in connection with the retention of such counsel, consultants or other advisors, not to exceed $250,000 in the aggregate, incurred in the performance of his duties under this Agreement, the Aries Merger Agreement and the transactions contemplated hereby unless Escrow Agreement, respectively. All expense reimbursements provided to the same Representative by the Parent shall constitute Damages incurred or suffered by the Parent within the meaning of Section 8.1(a) hereof, provided that such out-of-pocket expenses are incurred by the Representative in connection with a matter for which the Parent is madecompensated from the Escrowed Materials for other Damages.
(d) The provisions of this Section 8.5 shall in no way impose any obligations on the Parent (other than those set forth in paragraph (c) above). In particular, given notwithstanding any notice received by the Parent to the contrary (except any notice of the appointment of a successor Representative approved by the Parent in accordance with paragraph (b) of this Section 8.5), the Parent (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to the Indemnitors with respect to, and shall be indemnified by the Indemnitors from and against all liability arising out of (any such indemnifiable amounts constituting Damages within the meaning of Section 8.1(a) hereof) actions, decisions and determinations of the Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Indemnitors.
(e) The Representative shall not be liable to the Indemnitors for the performance of any act or executed by THCthe failure to act so long as he acted or failed to act in good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the best interests of the Indemnitors.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Selling Shareholders and the Indemnifying Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇▇ ▇▇▇▇ to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any Representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerSelling Shareholders, and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Selling Shareholders and making any and all determinations) which may be available required or permitted by this Agreement or the Escrow Agreement to be taken by the Indemnifying Shareholders, Selling Shareholders (or any of them) or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on the Selling Shareholders and Indemnifying Shareholders as if theSelling Shareholders and/or Indemnifying Shareholders personally had taken such action, exercised such rights, power or authority or made such decision or determination in the Indemnifying Shareholders’ or the Selling Shareholders’ individual capacity. Notwithstanding any other provision of this Agreement, with respect to the matters covered by Article VI, (i) the Selling Shareholders irrevocably relinquish the Selling Shareholders’ right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 7.8(b) below, and (ii) the Selling Shareholders shall not have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, the Purchaser or the Escrow Agent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement and the Escrow Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (A) prior written notice to the Selling Shareholders and (B) picking a successor reasonably satisfactory to the Purchaser to serve until a successor thereto is elected by the Selling Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to the Purchaser, may be appointed, pursuant to written action by the Selling Shareholders. Any successor to the Representative shall, for purposes of THC taken in good faith under any this Agreement and the Escrow Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term “Representative” as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents this Agreement and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Representative shall be permitted to retain counsel, consultants and other advisors and shall promptly notify the Purchaser after retaining any such person.
(d) The Purchaser may rely exclusivelyupon the actions, without independent verification or investigationdecisions and determinations of the Representative and may assume that all actions, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement decisions and determinations of the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered Representative are fully authorized by the Purchaser to THC shall be deemed to have been delivered to all SellersIndemnifying Shareholders. The Purchaser is hereby relieved from any liability to any person for any acts done by the Representative in his capacity as the Representative.
(e) The Representative shall not be entitled liable to disregard the Indemnifying Shareholders for the performance of any decisions, communications act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best Shares of the same is made, given or executed by THCSelling Shareholder.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Company and the Indemnifying Shareholders hereby irrevocably appoints THC authorize, direct and appoint Coppel to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any Representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerSelling Shareholders, and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Selling Shareholder (which will constitute Damages incurred or suffered by Purchaser within the meaning of Section 8.1(a) hereof) and making any and all determinations) which may be available required or permitted by this Agreement or any Related Agreement to be taken by the Indemnifying Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on the Indemnifying Shareholders as if the Indemnifying Shareholders personally had taken such action, exercised such rights, power or authority or made such decision or determination in the Indemnifying Shareholders' individual capacity. Notwithstanding any other provision of this Agreement, with respect to the matters covered by Article VIII, (i) the Selling Shareholder irrevocably relinquishes the Indemnifying Shareholders' right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 8.8(b) below, and (ii) the Indemnifying Shareholders shall not have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, Purchaser or the Escrow Agent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement and the Securities Escrow Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (A) prior written notice to the Selling Shareholder and (B) picking a successor reasonably satisfactory to Purchaser to serve until a successor thereto is elected by the Selling Shareholder. The parties hereby agree that, if Coppel shall cease to be Representative for any reason, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be his successor. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Purchaser, may be appointed, pursuant to written action by Indemnifying Shareholders. Any successor to the Representative shall, for purposes of THC taken in good faith under any this Agreement and the Escrow Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents this Agreement and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Purchaser after retaining any such person.
(d) The provisions of this Section 8.8 shall in no way impose any obligations on Purchaser (other than those set forth in paragraph (c) above). In particular, given or executed notwithstanding any notice received by such Seller. Any notice or communication delivered by the Purchaser to THC the contrary (except any notice of the appointment of a successor Representative approved by Purchaser in accordance with paragraph (b) of this Section 8.8), Purchaser (i) shall be deemed to have been delivered to all Sellers. The Purchaser fully protected in relying upon and shall be entitled to disregard rely upon, shall have no liability to the Indemnifying Shareholders with respect to, and shall be indemnified by the Selling Shareholders from and against all liability arising out of (any decisionssuch Indemnifiable amounts constituting Damages within the meaning of Section 8.1(a) hereof) actions, communications decisions and determinations of the Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Indemnifying Shareholders.
(e) The Representative shall not be liable to the Indemnifying Shareholders for the performance of any act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCSelling Shareholder.
Appears in 1 contract
The Representative. (a) Each Seller other than THC Web and the Web Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇ to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerWeb Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Web Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of SECTION 9.1(a) hereof) and making any and all determinations) which may be available required or permitted by this Restated Agreement to be taken by the Web Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection with the transactions contemplated hereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each indemnifying party as if such indemnifying party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such indemnifying party's individual capacity. Notwithstanding any other provision of this Restated Agreement, if the Closing occurs, then with respect to the matters covered by ARTICLE IX, (i) each of the Web Shareholders irrevocably relinquishes such Web Shareholder's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in SECTION 9.6(b) below, and (ii) no Web Shareholders shall have any right under this Restated Agreement or otherwise to institute any suit, action or proceeding against Web or Parent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Restated Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Web Shareholders, and (ii) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Web Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Web Shareholders. Any successor to the Representative shall, for purposes of THC taken in good faith under any this Restated Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Restated Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Parent after retaining any such Person.
(d) The provisions of this SECTION 9.6 shall in no way impose any obligations on Parent (other than those set forth in paragraph (c) above). In particular, given or executed notwithstanding any notice received by such Seller. Any Parent to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser Parent in accordance with paragraph (b) of this SECTION 9.6), Parent shall be entitled to disregard assume that all actions, decisions and determinations of the Representative are fully authorized by the Web Shareholders.
(e) The Representative shall not be liable to the Web Shareholders for the performance of any decisions, communications act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCWeb Shareholders.
Appears in 1 contract
Sources: Web Yp Acquisition Agreement (Advanced Communications Group Inc/De/)
The Representative. (a) Each Seller other than THC The Shareholders hereby irrevocably appoints THC authorize, direct and appoint, and the Shareholders represent and warrant to Buyer that the Unit Shareholders have prior to the Closing Date authorized, directed and appointed, Mr. John ▇▇▇▇ ▇▇ act as the sole and exclusive agent, attorney-in-fact and representative of such Seller regarding the Shareholders and the Unit Shareholders, and if Mr. ▇▇▇▇ ▇▇ no longer willing or able to serve hereunder, Mr. Paul ▇▇▇▇▇, ▇▇d, further, if neither Mr. ▇▇▇▇ ▇▇▇ Mr. ▇▇▇▇▇ ▇▇▇ no longer willing or able to serve hereunder, then Mr. ▇▇▇▇ ▇▇▇▇▇▇▇ (the "Representative"), and hereby further authorize and direct the Representative (i) to take any, and all actions (including, without limitation, executing and delivering any matter relating and all agreements, instruments, certificated and other documents, incurring any and all costs and expenses for the account of the Shareholders and the Unit Shareholders (which costs and expenses shall constitute Losses incurred or suffered by Buyer within the meaning of this Article XI) and making any and all determinations which may be required or permitted by this Agreement or any of the Transaction Documents to or arising under this Agreementbe taken by the Shareholders, the Unit Shareholders or the Representative, (ii) to exercise such other Transaction Documents rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection -,with the transactions contemplated hereby and thereby, and (iii) to exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder or Unit Shareholder personally had taken such action, exercised such rights, or authority or made such decision or determination in such Shareholder's individual capacity. Notwithstanding anything to the contrary contained in this Agreement, with respect to the specific matters set forth in this Article XI, (i) each Shareholder and Unit Shareholder hereby irrevocably relinquishes such holder's right to act independently and other than through the representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 11.08(b) hereof, and (ii) no Shareholder or Unit Shareholder shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against any Group Company or the Buyer, with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with the terms of this Agreement.
(b) Each Seller other than THC hereby appoints THC The Representative shall serve as Representative until his resignation, removal from such Seller’s true and lawful attorney-in-fact and agentposition of responsibility, with full powers of substitution and resubstitution. This power of attorneyincapacity or death; provided, all authority hereby conferred however that the Representative shall not have the right to resign without (i) prior written notice to the Shareholders and the powersUnit Shareholders, immunities and rights (ii) selecting a successor representative reasonably satisfactory to indemnification granted the Buyer who shall serve until a successor thereto is elected by the Shareholders and the Unit Shareholders. The Representative may be removed at any time, and a successor representative reasonably satisfactory to THC hereunder are granted Buyer may be appointed pursuant to written action by the Shareholders and shall the Unit Shareholders who, immediately prior to the Closing Date, held Shares constituting at least 80% of all such shares then outstanding. Any successor to the Representative shall, for purposes of this Agreement, be irrevocable and shall not be terminated by any act of any Sellerdeemed to be, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any from the time of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified appointment thereof in writing by such Selleraccordance with the terms hereof, the Representative, and all defenses which may be available to any Seller to contestfrom and after such time, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC term "Representative" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless and until such successor agrees in writing to each Seller any notice received be bound by THC concerning the terms of this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to independently retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Buyer after retaining any such person.
(d) The provisions of this Section 11.08 shall in no way impose any obligations on the Buyer, given or executed and notwithstanding any notice received by such Seller. Any Buyer to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser Buyer in accordance with Section 11.08(b) hereof), Buyer (i) shall be entitled to disregard rely upon and shall be fully protected in relying upon, and shall have no liability to the Shareholders or the Unit Shareholders with respect to, and shall be indemnified by the Shareholders for, from and against any decisionsand all liability arising out of actions, communications decisions and determination of the Representative, which liabilities shall constitute Losses within the meaning of this Article XI, and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Shareholders for all purposes under this Agreement.
(e) The Representative shall not be liable to the Shareholders or writings madethe Unit Shareholders for the performance of any act, given or executed by any Seller the failure to act, provided the Representative acted or failed to act in connection with good faith and in a manner such Representative reasonably believed to be in the scope of such Representative's authority under this Agreement and for a purpose which such Representative reasonably believed to be in the transactions contemplated hereby unless best interests of the same is madeShareholders and the Unit Shareholders, given or executed by THCconsidered together as a group.
Appears in 1 contract
The Representative. (a) Each Seller other than THC Party hereby irrevocably appoints THC the Representative as the sole and exclusive representative of such Seller Party regarding any matter relating to or arising under this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC Party hereby appoints THC the Representative as such SellerSeller Party’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC the Representative hereunder are granted and shall be irrevocable and shall not be terminated by any act of any SellerSeller Party, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC the Representative under any of the Transaction Documents shall be binding upon each Seller Party and each such SellerSeller Party’s successors as if expressly confirmed and ratified in writing by such SellerSeller Party, and all defenses which may be available to any Seller Party to contest, negate or disaffirm the action of THC the Representative taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC the Representative shall be deemed to have been provided to each SellerSeller Party. THC The Representative shall promptly deliver to each Seller Party any notice received by THC the Representative concerning this Agreement. Without limiting the generality of the foregoing, THC the Representative has full power and authority, on behalf of each Seller Party and each SellerSeller Party’s successors and assigns, to: :
(i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller Party in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC the Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC the Representative on behalf of the Sellers Seller Parties in connection with the Transaction Documents. THC The Representative shall be entitled to: (i) rely upon any signature of a Seller Party believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable SellerSeller Party.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC the Representative in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC the Representative on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THCthe Representative, for or on behalf of any SellerSeller Party, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such SellerSeller Party. Any notice or communication delivered by the Purchaser to THC the Representative shall be deemed to have been delivered to all SellersSeller Parties. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller Party in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THCthe Representative.
Appears in 1 contract
Sources: Purchase Agreement
The Representative. (a) Each Seller other than THC hereby irrevocably appoints THC The Representative has been authorized, designated and appointed to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers representative of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any each of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerShareholders, and as such has been authorized and directed to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Shareholders (which will constitute Damages incurred or suffered by the Parent within the meaning of Sec-tion 6.1(a) of the Merger Agreement) and making any and all determinations) which may be available required or permitted by this Escrow Agreement or the Merger Agreement to any Seller be taken by the Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to contestthe Representative under this Escrow Agreement and the Merger Agreement in connection with the transactions contemplated hereby and thereby and (iii) exercise such rights, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents power and authority as are waived. Without limitation of incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any notice provided to THC decision or determination made by the Representative consistent therewith, shall be deemed to have been provided to absolutely and irrevocably binding on each SellerShareholder as if such Shareholder personally had taken such action; exercised such rights, power or authority or made such decision or determination in such Shareholder's individual capacity. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoing, THC The Representative hereby acknowledges that he has full power and authority to act in the premises (including, without limitation, the power and authority, on behalf of each Seller and each Seller’s successors and assignsthe Shareholders, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver any certificate, notice or instructions hereunder) and receive deliveries of all agreementsto designate and appoint a substitute or substitutes to act hereunder with the same power and authority as the Representative would have if personally acting.
(b) The Representative shall be permitted to retain counsel, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, consultants and other documents required or permitted to be given in connection with advisors and shall promptly notify the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with Parent after retaining any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Sellerperson.
(c) The Purchaser may rely exclusively, without independent verification Representative shall not be liable to the Shareholders for the performance of any act or investigation, upon all decisions, communications or writings made, given or executed by THC the failure to act under in connection with this Escrow Agreement so long as he acted or failed to act in good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby. best interests of the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THCShareholders.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (American Business Information Inc /De)
The Representative. (a) Each Seller other than THC ETS hereby irrevocably appoints THC authorizes and directs ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to take such action, and to exercise such rights, power and authority, as are authorized, delegated and granted to the sole Representative hereunder and exclusive representative of such Seller regarding any matter relating to or arising under this Agreement, the other Transaction Documents and Escrow Agreement in connection with the transactions contemplated hereby and thereby, and to exercise such rights, power and authority, as are incidental thereto. Approval of the Merger by the ETS stockholders shall constitute ratification by the ETS stockholders of the appointment of the Representative in accordance herewith and agreement to be bound by the actions of the Representative taken hereunder and under the Escrow Agreement.
(b) Each Seller other than THC hereby appoints THC Upon the resignation, death or inability of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to act as Representative, ▇▇▇▇ ▇▇▇▇▇▇ shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to act as successor Representative, the Surrendering Stockholders shall vote to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time). No appointment of a successor shall be effective unless such Seller’s true and lawful attorney-in-fact and agent, with full powers successor agrees in writing to be bound by the terms of substitution and resubstitution. This power ARTICLE 11 of attorney, all authority hereby conferred this Agreement and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC shall be deemed to have been provided to each Seller. THC shall promptly deliver to each Seller any notice received by THC concerning this Escrow Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC ETS agrees that the provisions set forth in connection with this SECTION 11.3 shall not limit in any respect the obligations of the Representative and shall in no way impose any obligations on Hach other than those explicitly set forth in this Agreement and or the transactions contemplated herebyEscrow Agreement. In particular, notwithstanding in any case any notice received by Hach to the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisionscontrary, communications or writings made, given or executed by THC, for or on behalf of any Seller, Hach shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser fully protected in relying upon and shall be entitled to disregard any decisions(A) rely upon actions, communications or writings madedecisions and determinations of the Representative and (B) assume that all actions, given or executed by any Seller in connection with this Agreement decisions and determinations of the Representative are fully authorized and binding upon the Representative and the transactions contemplated hereby unless Surrendering Stockholders.
(d) The Representative shall not be liable to the same is made, given Surrendering Stockholders for the performance of any act or executed by THCthe failure to act so long as he acted or failed to act in good faith and such action or inaction did not constitute willful misconduct or gross negligence.
Appears in 1 contract
The Representative. (a) Each Seller other than THC The Company, on behalf of each Indemnitor, hereby irrevocably authorizes, directs and appoints THC Donald K. Mitchell to act as the sole and exclusive representative agent, attorney-in-fa▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ive of the Indemnitors for purposes of this Agreement and the Escrow Agreement (the "Representative"), and authorizes and directs the Representative to (i) take any and all actions (including executing and delivering any documents and making any and all determinations) which may be required or permitted by this Agreement or the Escrow Agreement to be taken by the Indemnitors or the Representative, (ii) exercise such Seller regarding any matter relating other rights, power and authority as are authorized, delegated and granted to or arising the Representative hereunder and under this Agreement, the other Transaction Documents and Escrow Agreement in connection with the transactions contemplated hereby and therebythereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. By virtue of the approval and adoption of this Agreement by the requisite vote of the stockholders of the Company, each holder of Company Common Stock and each holder of an Option (other than such holders, if any, holding Dissenter's Shares) shall be deemed to have agreed to appoint Donald K. Mitchell as the Representative for and on behalf of Indemni▇▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent with this Section 6.5 shall be absolutely and irrevocably binding on each Indemnitor as if such Indemnitor personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnitor's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article VI (y) each of the Indemnitors irrevocably relinquishes such Indemnitor's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 7.5(b) below, and (z) no Indemnitor shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company, the Parent or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement and the Escrow Agreement.
(b) Each Seller other than THC hereby appoints THC The Representative shall serve as Representative until his resignation, removal from office, incapacity or death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Indemnitors and (ii) picking a successor reasonably satisfactory to the Parent to serve until a successor thereto is elected by the Indemnitors. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to the Parent, may be appointed, pursuant to written action by Indemnitors who, immediately prior to the Effective Time, held shares of Company Common Stock and/or Option convertible into Company Common Stock constituting sixty six and two-thirds percent (66 2/3%) or more of all such Seller’s true shares and lawful attorney-in-fact and agentshares underlying Options then outstanding. Any successor to the Representative shall, with full powers for purposes of substitution and resubstitution. This power of attorney, all authority hereby conferred this Agreement and the powersEscrow Agreement, immunities and rights be deemed to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Sellerbe, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any from the time of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified appointment thereof in writing by such Selleraccordance with the terms hereof, the Representative, and all defenses which may be available to any Seller to contestfrom and after such time, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC term "Representative" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents this Agreement and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusivelyRepresentative shall be permitted to retain counsel, without independent verification consultants and other advisors and shall promptly notify the Parent after retaining any such person. The Representative shall be entitled to reimbursement by the Parent of his or investigationher reasonable out-of-pocket expenses including the reasonable, upon all decisionsdocumented fees and expenses incurred by the Representative for payment to, communications or writings made, given or executed by THC in connection with with, the retention of such counsel, consultants or other advisors, not to exceed $200,000 in the aggregate, incurred in the performance of his duties under this Agreement and the transactions contemplated herebyEscrow Agreement, respectively. All expense reimbursements provided to the Purchaser is entitled Representative by the Parent shall constitute Damages incurred or suffered by the Parent within the meaning of Section 6.1(a) hereof.
(d) The provisions of this Section 6.5 shall in no way impose any obligations on the Parent (other than those set forth in paragraph (c) above). In particular, notwithstanding any notice received by the Parent to deal exclusively the contrary (except any notice of the appointment of a successor Representative approved by the Parent in accordance with THC on all matters relating to paragraph (b) of this Agreement and Section 6.5), the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Parent (i) shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser fully protected in relying upon and shall be entitled to disregard rely upon, shall have no liability to the Indemnitors with respect to, and shall be indemnified by the Indemnitors from and against all liability arising out of (any decisionssuch indemnifiable amounts constituting Damages within the meaning of Section 6.1(a)) actions, communications decisions and determinations of the Representative and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Indemnitors.
(e) The Representative shall not be liable to the Indemnitors for the performance of any act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCIndemnitors.
Appears in 1 contract
Sources: Merger Agreement (Gsi Lumonics Inc)
The Representative. (a) Each Seller other than THC Big Stuff and the Big Stuff Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇ to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerBig Stuff Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Big Stuff Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of SECTION 9.1(a) hereof) and making any and all determinations) which may be available required or permitted by this Restated Agreement to be taken by the Big Stuff Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection C-35 with the transactions contemplated hereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each indemnifying party as if such indemnifying party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such indemnifying party's individual capacity. Notwithstanding any other provision of this Restated Agreement, if the Closing occurs, then with respect to the matters covered by ARTICLE IX, (i) each of the Big Stuff Shareholders irrevocably relinquishes such Big Stuff Shareholder's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in SECTION 9.6(b) below, and (ii) no Big Stuff Shareholders shall have any right under this Restated Agreement or otherwise to institute any suit, action or proceeding against Big Stuff or Parent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Restated Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Big Stuff Shareholders, and (ii) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Big Stuff Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Big Stuff Shareholders. Any successor to the Representative shall, for purposes of THC taken in good faith under any this Restated Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Restated Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Parent after retaining any such Person.
(d) The provisions of this SECTION 9.6 shall in no way impose any obligations on Parent (other than those set forth in paragraph (c) above). In particular, given or executed notwithstanding any notice received by such Seller. Any Parent to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser Parent in accordance with paragraph (b) of this SECTION 9.6), Parent shall be entitled to disregard assume that all actions, decisions and determinations of the Representative are fully authorized by the Big Stuff Shareholders.
(e) The Representative shall not be liable to the Big Stuff Shareholders for the performance of any decisions, communications act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCBig Stuff Shareholders.
Appears in 1 contract
Sources: Big Stuff Acquisition Agreement (Advanced Communications Group Inc/De/)
The Representative. (a) Each Seller other than THC Summit Partners shall act as the “Representative” under this Agreement and, in such capacity, the Representative is hereby irrevocably appoints THC and exclusively appointed, authorized and empowered as the sole Sellers’ attorney-in-fact, with full power of substitution, to take all actions and exclusive representative make all decisions and determinations on behalf of such Seller regarding any matter relating to or arising under the Sellers in respect of this Agreement, the other Transaction Documents Escrow Agreement and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC shall be deemed to have been provided to each Seller. THC shall promptly deliver to each Seller any notice received by THC concerning this Agreement. Without limiting the generality of the foregoingprior sentence, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: the Representative shall be exclusively authorized to (i) interpret negotiate, execute and deliver all amendments, modifications and waivers to this Agreement and/or the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewithEscrow Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with any claims or disputes with respect to this Agreement, the Transaction DocumentsEscrow Agreement and/or the transactions contemplated hereby or thereby, (iii) to initiate, prosecute, defend and/or settle such claims and disputes, (iv) to authorize payments from the Escrow Fund and Representative Fund, and (v) to take all actions and sign all documents necessary, convenient or advisable to accomplish any of the foregoing. THC No Seller shall be permitted to take any such actions without the prior written approval of the Representative. This power of attorney is deemed coupled with an interest and shall survive the death, incapacity, disability, termination, liquidation, dissolution or any other event affecting any Seller.
(b) The Representative will not receive a fee for serving as the representative of the Sellers hereunder. The Representative shall be entitled to: (i) rely upon to engage counsel, accountants and other advisors, and the fees and expenses of such counsel and advisors and any signature of a Seller believed out-of-pocket expenses incurred by it to the Representative may be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of paid from the applicable SellerRepresentative Fund or from any other payment received hereunder by the Representative, in its capacity as such.
(c) The Purchaser may rely exclusivelyRepresentative shall not be liable to any Seller for any action taken by the Representative pursuant to this Agreement, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. Sellers shall severally, and not jointly, in proportion to their percentage ownership of the Purchaser is entitled to deal exclusively with THC on Company, indemnify and hold the Representative harmless from and against any and all matters Losses arising out of or relating to the Representative serving in this Agreement capacity, except in each case if and to the extent the Representative has engaged in willful misconduct.
(d) The Representative is serving in this capacity solely for purposes of administrative convenience. The Representative is not personally liable for any of the obligations of the Sellers hereunder, and the transactions contemplated hereby. Any action taken or Buyer Indemnified Parties agree that they will not taken or decisions, communications or writings made, given or executed by THC, look to the underlying assets of the Representative for or on behalf the satisfaction of any Sellerobligations of the Sellers.
(e) The Representative may resign from such role upon at least 10 business days’ prior written notice to the Sellers and the Buyer. The Sellers holding a majority of the Capital Stock (as of immediately prior to the Effective Time) shall appoint a replacement and from and after such appointment, such Person shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by the “Representative” for all purposes hereof. All rights of the Representative to indemnification and exculpation hereunder shall survive such Seller. Any notice or communication delivered by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller in connection with this Agreement and the transactions contemplated hereby unless the same is made, given or executed by THCresignation.
Appears in 1 contract
The Representative. (a) Each Seller other than THC Web and the Web Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇ to act as the sole and exclusive representative of such Seller regarding any matter relating to or arising under this Agreementagent, the other Transaction Documents and the transactions contemplated hereby and thereby.
(b) Each Seller other than THC hereby appoints THC as such Seller’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution. This power of attorney, all authority hereby conferred and the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and shall not be terminated by any act of any Seller, by operation of applicable Law, whether by death, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any representative of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified in writing by such SellerWeb Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all defenses actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Web Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of Section 9.1(a) hereof) and making any and -------------- all determinations) which may be available required or permitted by this Agreement to be taken by the Web Shareholders or the Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection with the transactions contemplated hereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each indemnifying party as if such indemnifying party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such indemnifying party's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article IX, (i) each of the Web ---------- Shareholders irrevocably relinquishes such Web Shareholder's right to act independently and other than through the Representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 9.6(b) below, and (ii) -------------- no Web Shareholders shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against Web or Parent with respect to any Seller such matter, any such right being irrevocably and exclusively delegated to contestthe Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement.
(b) The Representative shall serve as Representative until his resignation, negate removal from office, incapacity or disaffirm death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Web Shareholders, and (ii) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Web Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Web Shareholders. Any successor to the Representative shall, for purposes of THC taken in good faith under any this Agreement, be deemed to be, from the time of the Transaction Documents are waived. Without limitation of appointment thereof in accordance with the foregoingterms hereof, any notice provided to THC the Representative, and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless such successor agrees in writing to each Seller any notice received be bound by THC concerning the terms of this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Parent after retaining any such Person.
(d) The provisions of this Section 9.6 shall in no way ----------- impose any obligations on Parent (other than those set forth in paragraph (c) above). In particular, given or executed notwithstanding any notice received by such Seller. Any Parent to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser Parent in accordance with paragraph (b) of this Section 9.6), Parent shall be entitled to disregard assume ----------- that all actions, decisions and determinations of the Representative are fully authorized by the Web Shareholders.
(e) The Representative shall not be liable to the Web Shareholders for the performance of any decisions, communications act or writings made, given the failure to act so long as he acted or executed by any Seller failed to act in connection with this Agreement good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the transactions contemplated hereby unless best interests of the same is made, given or executed by THCWeb Shareholders.
Appears in 1 contract
Sources: Acquisition Agreement (Advanced Communications Group Inc/De/)
The Representative. (a) Each Seller other than THC The Shareholders hereby irrevocably appoints THC authorize, direct and appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to act as the sole and exclusive agent, attorney-in-fact and representative of such Seller regarding the Shareholders (the "Representative"), and hereby further authorize and direct the Representative (i) to take any matter relating to and all actions (including, without limitation, executing and delivering any and all agreements, instruments, certificates and other documents, incurring any and all costs 50 and expenses for the account of the Shareholders (which costs and expenses shall constitute Damages incurred or arising under suffered by Buyer within the meaning of this Agreement, Article XI) and making any and all determinations which may be required or permitted by this Agreement or any of the other Transaction Documents to be taken by the Shareholders or the Representative, (ii) to exercise such other rights, power and authority as are authorized, delegated and granted to the Representative hereunder in connection with the transactions contemplated hereby and thereby, and (iii) to exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each Shareholder as if such Shareholder personally had taken such action, exercised such rights, or authority or made such decision or determination in such Shareholder's individual capacity. Notwithstanding anything to the contrary contained in this Agreement, with respect to the specific matters set forth in this Article XI, (i) each Shareholder hereby irrevocably relinquishes such Shareholder's right to act independently and other than through the representative, except with respect to the removal of the Representative or appointment of a successor Representative as provided in Section 11.08(b) hereof, and (ii) no Shareholder shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against the Company or the Buyer, with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with the terms of this Agreement.
(b) Each Seller other than THC hereby appoints THC The Representative shall serve as Representative until his resignation, removal from such Seller’s true and lawful attorney-in-fact and agentposition of responsibility, with full powers of substitution and resubstitution. This power of attorneyincapacity or death; provided, all authority hereby conferred and however, that the powers, immunities and rights to indemnification granted to THC hereunder are granted and shall be irrevocable and Representative shall not have the right to resign without (i) prior written notice to the Shareholders, and (ii) selecting a successor representative reasonably satisfactory to the Buyer who shall serve until a successor thereto is elected by the Shareholders. The Representative may be terminated removed at any time, and a successor representative reasonably satisfactory to Buyer may be appointed pursuant to written action by any act the Shareholders who, immediately prior to the Closing Date, held shares of any SellerCommon Stock constituting at least 66.66% of all such shares then outstanding. Any successor to the Representative shall, by operation for purposes of applicable Lawthis Agreement, whether by deathbe deemed to be, disability, protective supervision, bankruptcy, liquidation, incompetence or any other event. All actions taken by THC under any from the time of the Transaction Documents shall be binding upon each Seller and each such Seller’s successors as if expressly confirmed and ratified appointment thereof in writing by such Selleraccordance with the terms hereof, the Representative, and all defenses which may be available to any Seller to contestfrom and after such time, negate or disaffirm the action of THC taken in good faith under any of the Transaction Documents are waived. Without limitation of the foregoing, any notice provided to THC term "Representative" as used herein and therein shall be deemed to have been provided refer to each Sellersuch successor. THC No appointment of a successor shall promptly deliver be effective unless and until such successor agrees in writing to each Seller any notice received be bound by THC concerning the terms of this Agreement. Without limiting the generality of the foregoing, THC has full power and authority, on behalf of each Seller and each Seller’s successors and assigns, to: (i) interpret the terms and provisions of the Transaction Documents and the documents to be executed and delivered by such Seller in connection herewith and therewith, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transaction Documents and the transactions contemplated hereunder and thereunder, (iii) receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of THC for the accomplishment of the foregoing, (v) give and receive notices and communications, and (vi) take all actions necessary or appropriate in the judgment of THC on behalf of the Sellers in connection with the Transaction Documents. THC shall be entitled to: (i) rely upon any signature of a Seller believed by it to be genuine and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller.
(c) The Purchaser may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by THC in connection with this Agreement and the transactions contemplated hereby. the Purchaser is entitled to deal exclusively with THC on all matters relating to this Agreement and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by THC, for or on behalf of any Seller, Representative shall be deemed an action taken or not taken or decisionspermitted to independently retain counsel, communications or writings madeconsultants and other advisors and shall promptly notify Buyer after retaining any such person.
(d) The provisions of this Section 11.08 shall in no way impose any obligations on the Buyer, given or executed and notwithstanding any notice received by such Seller. Any Buyer to the contrary (except any notice or communication delivered of the appointment of a successor Representative approved by the Purchaser to THC shall be deemed to have been delivered to all Sellers. The Purchaser Buyer in accordance with Section 11.08(b) hereof), Buyer (i) shall be entitled to disregard rely upon and shall be fully protected in relying upon, and shall have no liability to the Shareholders with respect to, and shall be indemnified by the Shareholders for, from and against any decisionsand all liability arising out of actions, communications decisions and determination of the Representative, which liabilities shall constitute Damages within the meaning of this Article XI, and (ii) shall be entitled to assume that all actions, decisions and determinations of the Representative are fully authorized by the Shareholders for all purposes under this Agreement.
(e) The Representative shall not be liable to the Shareholders for the performance of any act, or writings madethe failure to act, given provided the Representative acted or executed by any Seller failed to act in connection with good faith and in a manner such Representative reasonably believed to be in the scope of such Representative's authority under this Agreement and for a purpose which such Representative reasonably believed to be in the transactions contemplated hereby unless best interests of the same is madeShareholders, given or executed by THCconsidered together as a group.
Appears in 1 contract