The Representative. 4.1. Each of the Sellers hereby irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇, Adv, of Sabban Law Offices (together with any successor appointed pursuant to this Section, the “Representative”) as its sole representative, attorney-in-fact and agent with full power of substitution to act in the name, place and stead of the Sellers with respect to this Agreement and the Paying Agent & Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Representative under this Agreement or the Paying Agent & Escrow Agreement, including (a) receiving and giving notices and communications, (b) authorizing delivery of payments (including from the Adjustment Escrow Account) to the Sellers or to the Investor as appropriate, (c) agreeing to, negotiating, entering into settlements and compromises of, and otherwise administering and resolving disputes relating to the Adjustment Escrow Amount or the determination of the Exercise Price, and (d) engaging attorneys, accountants or other advisors as the Representative determines necessary or desirable. The Sellers acknowledge that the Representative is legal counsel to KT Squared, LLC, and nothing in his role as Representative, shall preclude him from continuing to advise KT Squared, LLC in that capacity. 4.2. The Sellers acknowledge and agree that the Investor shall be entitled to rely on any action or decision of the Representative as being binding on all of the Sellers, and shall have no responsibility to determine whether the Representative is acting in accordance with the instructions of the Sellers. All decisions and actions by the Representative, including any agreement between the Representative and the Investor relating to the determination of the Exercise Price or the disbursement of the Adjustment Escrow Amount, shall be binding upon all Sellers as if expressly confirmed and ratified in writing by each of them. 4.3. Each Seller hereby irrevocably constitutes and appoints the Representative, with full power of substitution, as its true and lawful proxy and attorney-in-fact (the “Voting Proxy”), to vote all of such Seller’s Shares and to exercise all rights, powers and privileges of such Seller with respect to such Shares (including the right to act by written consent) in accordance with the provisions of this Agreement and the transactions contemplated hereby, including without limitation in connection with any Company Acquisition (as defined below) or other resolution or action required to be approved by the Sellers or shareholders of the Company in order to effectuate the Option Closing. Each Seller agrees to take such further actions and to execute such further instruments as may be reasonably necessary to effectuate the foregoing. The grant of the Voting Proxy is coupled with an interest, shall be irrevocable and shall survive the death, incapacity, bankruptcy or liquidation of the Seller. 4.4. The Representative (through deposit with the Paying Agent) shall be the sole party entitled to receive payment of the Exercise Price on behalf of the Sellers. The Investor shall have no responsibility or liability whatsoever for the allocation, apportionment, or delivery of any amount received by the Representative to any Seller, and no Seller shall have any claim against the Investor in connection with any such distribution. 4.5. The Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest (the "Majority Sellers") of the Sellers according to each Sellers' pro rata share of all Shares held by the Sellers (“Seller’s Pro-rata Share”) ; provided, however, in no event shall Representative be removed without the Majority Sellers having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. In the event of the death, incapacity, resignation, or removal of Representative, a new Representative shall be appointed by the vote or written consent of the Majority Sellers, and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor Representative is appointed. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇; provided, that until such notice is received, Buyer shall be entitled to rely on the decisions and actions of the prior Representative as described above. If the Representative is dissolved, liquidated, ceases to exist, is declared bankrupt, enters into receivership or administration, resigns, or is otherwise unable or unwilling to act then the Majority Sellers may, by written notice to the Investor, appoint a successor Representative and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor Representative is appointed. Any such appointment shall be effective upon the delivery to the Investor of written notice of the appointment, together with a written acceptance of such appointment by the successor Representative. The removal of a Representative shall not be effective until such a successor has been duly appointed and accepted the role in writing. 4.6. The Representative may rely upon any document or communication believed to be genuine and may assume any Person purporting to act on behalf of a Seller has been duly authorized. The Representative shall not be liable to the Sellers for actions taken pursuant to this Agreement or the Paying Agent & Escrow Agreement/any Transaction Document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)), indemnify and hold harmless Representative from and against, compensate it for, reimburse it for, and pay any and all losses, liabilities, claims, actions, damages, and expenses, including attorneys' fees and disbursements, arising out of and in connection with its activities as Representative under this Agreement and the Paying Agent & Escrow Agreement/any Transaction Document (the "Representative Losses"), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Representative, Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct, or bad faith. The Representative Losses shall be satisfied: (i) first from the Representative Expense Amount; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to Representative from the Representative Expense Amount, from the Sellers, severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)). As soon as practicable after the date on which the final obligation of Representative under this Agreement and the Paying Agent & Escrow Agreement/any Transaction Document have been discharged or such other date as Representative deems appropriate, any remaining Representative Expense shall be released to the Consideration Recipients on a pro-rata basis between them (based on the portion of the Consideration each such Consideration Recipient is entitled to receive). 4.7. The Sellers shall jointly bear the Representative’s costs and expenses (including professional advisor fees) incurred in connection with the performance of its duties under this Agreement, which may be paid directly from any amounts otherwise payable to Sellers, including from the Adjustment Escrow Account, and to the extent such amounts or not available or are insufficient, shall be paid by the Consideration Recipients on a pro-rata basis between them (based on the portion of the Consideration each such Consideration Recipient is entitled to receive). The Representative may withhold from, or cause to be deducted from, any amounts payable to the Sellers any amounts required to fund such expenses on a pro rata basis. 4.8. The Representative may act through one or more individuals or officers as it may designate from time to time in writing to the Investor. The Investor shall be entitled to rely upon the actions or signatures of any such designated individual as though they were taken or given by the Representative itself. Without limiting the foregoing, ▇▇▇▇▇ ▇▇▇▇▇▇, Adv., and such other Persons as may be designated in writing by the Representative, are hereby authorized to act on behalf of the Representative, and the Investor may rely on any such act or deed as the valid act or deed of the Representative.
Appears in 1 contract
The Representative. 4.1. Each of (a) Big Stuff and the Sellers Big Stuff Shareholders hereby irrevocably appoints ▇authorize, direct and appoint ▇▇▇▇ ▇▇▇▇▇▇, Adv, of Sabban Law Offices (together with any successor appointed pursuant to this Section, the “Representative”) act as its sole representativeand exclusive agent, attorney-in-fact and agent with full power of substitution to act in the name, place and stead representative of the Sellers with respect Big Stuff Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to this Agreement and the Paying Agent & Escrow Agreement and to (i) take any and all actions (including without limitation executing and make delivering any decisions 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 required or permitted by this 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 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 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 Agreement or otherwise to institute any suit, action or proceeding against Big Stuff or Parent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Paying Agent & Escrow Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this Agreement, including (a) receiving and giving notices and communications, .
(b) authorizing delivery of payments 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 (including from the Adjustment Escrow Accounti) prior written notice to the Sellers or to the Investor as appropriate, (c) agreeing to, negotiating, entering into settlements and compromises of, and otherwise administering and resolving disputes relating to the Adjustment Escrow Amount or the determination of the Exercise PriceBig Stuff Shareholders, and (dii) engaging attorneys, accountants or other advisors as the Representative determines necessary or desirable. The Sellers acknowledge that the Representative picking a successor reasonably satisfactory to Parent to serve until a successor thereto is legal counsel to KT Squared, LLC, and nothing in his role as Representative, shall preclude him from continuing to advise KT Squared, LLC in that capacity.
4.2. The Sellers acknowledge and agree that the Investor shall be entitled to rely on any action or decision of the Representative as being binding on all of the Sellers, and shall have no responsibility to determine whether the Representative is acting in accordance with the instructions of the Sellers. All decisions and actions elected by the Representative, including any agreement between the Representative and the Investor relating to the determination of the Exercise Price or the disbursement of the Adjustment Escrow Amount, shall be binding upon all Sellers as if expressly confirmed and ratified in writing by each of them.
4.3. Each Seller hereby irrevocably constitutes and appoints the Representative, with full power of substitution, as its true and lawful proxy and attorney-in-fact (the “Voting Proxy”), to vote all of such Seller’s Shares and to exercise all rights, powers and privileges of such Seller with respect to such Shares (including the right to act by written consent) in accordance with the provisions of this Agreement and the transactions contemplated hereby, including without limitation in connection with any Company Acquisition (as defined below) or other resolution or action required to be approved by the Sellers or shareholders of the Company in order to effectuate the Option Closing. Each Seller agrees to take such further actions and to execute such further instruments as may be reasonably necessary to effectuate the foregoing. The grant of the Voting Proxy is coupled with an interest, shall be irrevocable and shall survive the death, incapacity, bankruptcy or liquidation of the Seller.
4.4. The Representative (through deposit with the Paying Agent) shall be the sole party entitled to receive payment of the Exercise Price on behalf of the Sellers. The Investor shall have no responsibility or liability whatsoever for the allocation, apportionment, or delivery of any amount received by the Representative to any Seller, and no Seller shall have any claim against the Investor in connection with any such distribution.
4.5Big Stuff Shareholders. The Representative may resign be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be removed appointed, pursuant to written action by Big Stuff Shareholders. Any successor to the Representative shall, for any reason or no reason purposes of this Agreement, be deemed to be, from the time of the appointment thereof in accordance with the terms hereof, the Representative, and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be deemed to refer to such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the vote or written consent terms of a majority in interest this Agreement.
(the "Majority Sellers"c) of the Sellers according to each Sellers' pro rata share of all Shares held by the Sellers (“Seller’s Pro-rata Share”) ; provided, however, in no event shall Representative be removed without the Majority Sellers having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. In the event of the death, incapacity, resignation, or removal of Representative, a new The Representative shall be appointed permitted to retain counsel, consultants 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, notwithstanding any notice received by Parent to the vote or written consent contrary (except any notice of the Majority Sellers, and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until of a successor Representative is appointed. Notice approved by Parent in accordance with paragraph (b) of such vote or a copy of the written consent appointing such new Representative shall be sent to Buyerthis Section 9.6), such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇▇; provided, that until such notice is received, Buyer Parent shall be entitled to rely on the assume that all ----------- actions, decisions and actions determinations of the prior Representative as described above. If the Representative is dissolved, liquidated, ceases to exist, is declared bankrupt, enters into receivership or administration, resigns, or is otherwise unable or unwilling to act then the Majority Sellers may, by written notice to the Investor, appoint a successor Representative and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor Representative is appointed. Any such appointment shall be effective upon the delivery to the Investor of written notice of the appointment, together with a written acceptance of such appointment are fully authorized by the successor Representative. The removal of a Representative shall not be effective until such a successor has been duly appointed and accepted the role in writingBig Stuff Shareholders.
4.6. The Representative may rely upon any document or communication believed to be genuine and may assume any Person purporting to act on behalf of a Seller has been duly authorized. (e) The Representative shall not be liable to the Sellers Big Stuff Shareholders for actions taken pursuant to this Agreement or the Paying Agent & Escrow Agreement/any Transaction Document, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)), indemnify and hold harmless Representative from and against, compensate it for, reimburse it for, and pay any and all losses, liabilities, claims, actions, damages, and expenses, including attorneys' fees and disbursements, arising out of and in connection with its activities as Representative under this Agreement and the Paying Agent & Escrow Agreement/any Transaction Document (the "Representative Losses"), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Representative, Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct, or bad faith. The Representative Losses shall be satisfied: (i) first from the Representative Expense Amount; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to Representative from the Representative Expense Amount, from the Sellers, severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)). As soon as practicable after the date on which the final obligation of Representative under this Agreement and the Paying Agent & Escrow Agreement/any Transaction Document have been discharged or such other date as Representative deems appropriate, any remaining Representative Expense shall be released to the Consideration Recipients on a pro-rata basis between them (based on the portion of the Consideration each such Consideration Recipient is entitled to receive).
4.7. The Sellers shall jointly bear the Representative’s costs and expenses (including professional advisor fees) incurred in connection with the performance of its duties under this Agreement, any act or the 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 may he reasonably believed to be paid directly from any amounts otherwise payable to Sellers, including from in the Adjustment Escrow Account, and to the extent such amounts or not available or are insufficient, shall be paid by the Consideration Recipients on a pro-rata basis between them (based on the portion best interests of the Consideration each such Consideration Recipient is entitled to receive). The Representative may withhold from, or cause to be deducted from, any amounts payable to the Sellers any amounts required to fund such expenses on a pro rata basisBig Stuff Shareholders.
4.8. The Representative may act through one or more individuals or officers as it may designate from time to time in writing to the Investor. The Investor shall be entitled to rely upon the actions or signatures of any such designated individual as though they were taken or given by the Representative itself. Without limiting the foregoing, ▇▇▇▇▇ ▇▇▇▇▇▇, Adv., and such other Persons as may be designated in writing by the Representative, are hereby authorized to act on behalf of the Representative, and the Investor may rely on any such act or deed as the valid act or deed of the Representative.
Appears in 1 contract
Sources: Acquisition Agreement (Advanced Communications Group Inc/De/)