Common use of Appointment of Member Representative Clause in Contracts

Appointment of Member Representative. By executing and delivering this Agreement, each Seller irrevocably appoints Xxxxxxx Xxxxxx to serve as the Member Representative with power of designation and assignment as his or its true and lawful attorney-in-fact and agent with full power of substitution, to act for and on behalf of, and in the name of, such Seller with the full power, without the consent of such Seller, to exercise as the Member Representative in his sole discretion deems appropriate, the powers such Seller could exercise under this Agreement and to take all actions necessary or appropriate in the judgment of the Member Representative in connection with this Agreement and the transactions contemplated in this Agreement. Without limiting the generality of the foregoing, each Seller irrevocably grants the Member Representative full power and authority: (1) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement; (2) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by such Seller pursuant to this Agreement; and (h) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Member Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement, including the exercise of all rights granted to Sellers under this Agreement. Buyer may rely exclusively on any notices and other acts of the Member Representative as being legally binding acts of each Seller individually and Sellers collectively. For purposes of clarity, any decision or action by the Member Representative constitutes a decision or action of all Sellers is final and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller to the Member Representative is deemed coupled with an interest and all authority conferred is irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or events.

Appointment of Member Representative. By executing (a) Each of the Members and delivering this Agreement, each Seller Merit hereby irrevocably appoints Xxxxxxx Xxxxxx the person designated from time to serve time as the Member Representative with power of designation and assignment as his or its true and lawful attorney-in-fact fact, to act as its representative (each, a “Member Representative”) under this Agreement and, as such, to act as such Member’s and Merit’s agent (with full power of substitution, ) to act for take any action on such Member’s and on Merit’s behalf of, and in the name of, such Seller with the full power, without the consent of such Seller, respect to exercise as the Member Representative in his sole discretion deems appropriateall matters relating to this Agreement, the powers such Seller could exercise under this Agreement and to take all actions necessary or appropriate in the judgment of the Member Representative in connection with this Escrow Agreement and the transactions contemplated in this Agreementhereby. Without limiting Xxxxxx Xxxxxxx is hereby appointed and hereby accepts his appointment as the generality initial Member Representative (the “Initial Member Representative”). Each Member and Merit acknowledges that the appointment of the foregoing, each Seller irrevocably grants Initial Member Representative as Member Representative herein is coupled with an interest and may not be revoked. The Initial Member Representative accepts his appointment and authorization to act as attorney-in-fact and agent of Members and Merit. (b) The Initial Member Representative will serve as the Member Representative full power until the earlier of his resignation or removal (with or without cause) by Members and authorityMerit holding an aggregate Pro Rata Share of 50% or more (which may include the Pro Rata Share of the then-current Member Representative) (a “Majority of the Members”). Upon the resignation or removal of the Initial Member Representative, a Majority of the Members will select a new Member Representative who may resign or be removed or replaced (with or without cause) by a Majority of the Members. Each time a new Member Representative is appointed pursuant to this Agreement, such representative must accept such position in writing. (c) A Majority of the Members will notify Buyer promptly in writing of each change of the Member Representative. Until Buyer receives the foregoing written notice, Buyer will be entitled to assume that the person last acting as the Member Representative is still the duly authorized Member Representative. Buyer will be entitled to rely upon as being binding upon each Member and Merit any agreement, document, certificate or other instrument reasonably believed by Buyer to have been executed by the Member Representative, and Buyer will not be liable to any Member or Merit for any action taken or omitted to be taken in such reliance, or otherwise in reliance upon the instructions or directions given, or actions taken, by the Member Representative that are contemplated or permitted to be given or taken thereby by the terms of this Agreement. (d) In furtherance of the appointment of Member Representative herein made, each Member and Merit, fully and without restriction: (1i) agrees to give be bound by all notices received and receive notices agreements and communications relating determinations made by and documents executed and delivered by Member Representative under this Agreement and the Escrow Agreement, and (ii) authorizes Member Representative to (A) deliver to Buyer all certificates and documents to be delivered to Buyer by the Members and Merit pursuant to this Agreement and the Escrow Agreement, together with any certificates and documents executed by the Members and Merit and deposited with the Member Representative for such purpose, (B) dispute or refrain from disputing any claim made by Buyer under this Agreement and the Escrow Agreement, (C) negotiate and compromise any dispute which may arise under this Agreement and the Escrow Agreement, (D) pay any amounts due Buyer under this Agreement and the Escrow Agreement, (E) exercise or refrain from exercising any remedies available to the transactions Members and Merit under this Agreement and the Escrow Agreement, (F) sign any releases or other matters contemplated by documents with respect to any such dispute or remedy, (G) waive any condition contained in this Agreement and the Escrow Agreement; , (2H) to execute give such instructions and deliver, on behalf of do such Seller, other things and to accept delivery of, on behalf of refrain from doing such Seller, such documents other things as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by such Seller pursuant to this Agreement; and (h) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Member Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement and the Escrow Agreement, including (I) receive all amounts payable by Buyer to Members and Merit hereunder and under the exercise Escrow Agreement on behalf of all rights granted the Members and Merit and, subject to Sellers under this Agreement. Buyer may rely exclusively on any notices clauses J, K and other acts L below, pay to each Member and Merit such party’s Pro Rata Share of such amounts, (J) pay out of funds coming into the hands of the Member Representative from Buyer, all fees and expenses of the Members and Merit incurred in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the fees and expenses of counsel, accountants, brokers and other professional advisors retained by or on behalf of the Members and Merit, or any of them, in connection with such transactions, (K) retain such counsel, accountants and other professional advisors as being legally binding acts the Member Representative reasonably deems necessary to assist him in the performance of each Seller individually his duties hereunder or under the Escrow Agreement and Sellers collectivelypay the fees, costs and expenses thereof out of the funds coming into the hands of the Member Representative, and (L) retain out of funds coming into the hands of the Member Representative from Buyer such amounts as the Member Representative, in his sole discretion, deems appropriate to be held as reserves for expected or potential future expenses or liabilities of the Members and Merit hereunder and under the Escrow Agreement and pay such amounts to such parties as he deems appropriate. For purposes of clarity, any decision or action Payments made by the Member Representative constitutes a decision or action of all Sellers is final under clauses D, J and binding K above shall be considered to be paid by the Members and Merit based on all Sellers. No Seller may object totheir respective Pro Rata Shares. (e) The Members and Merit, dissent fromjointly and severally, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller agree to indemnify the Member Representative is deemed coupled with an interest and to hold him harmless against any and all authority conferred is irrevocable whether loss, liability or expense incurred without bad faith on the part of the Member Representative and arising out of or in connection with his duties as the Member Representative, including the reasonable costs and expenses incurred by death the Member Representative in defending against any claim or incapacity liability in connection herewith. (f) The Members and Merit consent to the execution of any such Seller or this Agreement and the occurrence consummation of any other event or eventsthe transactions contemplated hereby.

Appointment of Member Representative. By executing and delivering this Agreement, each (a) Each Seller Group Member hereby irrevocably appoints Xxxxxxx Xxxxxx the person or persons designated herein from time to serve as the Member Representative with power of designation and assignment time to act as his or her or its true representative (the “Member Representative”) under this Agreement and, as such, to act as his or her or its attorney-in-fact (with full power of substitution) to take any action on his or her or its behalf with respect to all matters relating to this Agreement and lawful the transactions contemplated hereby. Xxxxx Arminak is hereby appointed and hereby accepts appointment as the initial Member Representative (the “Initial Representative”). Each Seller Group Member acknowledges that the appointment of the Initial Representative as Member Representative in this Agreement is coupled with an interest and may not be revoked. The Initial Representative accepts her appointment and authorization to act as attorney-in-fact and agent of Seller Group Members. (b) The Initial Representative will serve as Member Representative until the earlier of her resignation or removal (with full power or without cause) by the unanimous vote of substitutionSeller Group Members. Upon the resignation or removal of the Initial Representative, Seller Group Members will select a new Member Representative who may resign or be removed or replaced (with or without cause) by the unanimous vote of Seller Group Members. Each time a new Member Representative is appointed pursuant to act for and on behalf ofthis Agreement, such representative will accept such position in writing. (c) Seller Group Members will notify Buyer promptly in writing of each change of Member Representative. Until Buyer receives the foregoing written notice, Buyer will be entitled to assume that each person acting as Member Representative is still a duly authorized Member Representative. Buyer will be entitled to rely upon as being binding upon each Seller Group Member any agreement, document, certificate or other instrument reasonably believed by Buyer to have been executed by any Member Representative, and Buyer will not be liable to any Seller Group Member for any action taken or omitted to be taken in such reliance, or otherwise in reliance upon the name ofinstructions or directions given, such Seller with the full poweror actions taken, without the consent of such Seller, to exercise as the by any Member Representative that are contemplated or permitted to be given or taken thereby by the terms of this Agreement and the agreements to be entered into in his sole discretion deems appropriateconnection with this Agreement. (d) In furtherance of the appointment of Member Representative made in this Agreement, the powers such each Seller could exercise Group Member, fully and without restriction: (i) agrees to be bound by all notices received and agreements and determinations made by and documents executed and delivered by any Member Representative under this Agreement and the agreements to take all actions necessary or appropriate in the judgment of the Member Representative be entered into in connection with this Agreement and the transactions contemplated in this Agreement. Without limiting the generality of the foregoing, each Seller irrevocably grants the (ii) authorizes Member Representative full power to (A) deliver to Buyer all certificates and authority: (1) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement; (2) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by such Seller Group Members pursuant to this Agreement; , together with any certificates and documents executed by a Seller Group Member and deposited with Member Representative for such purpose, (hB) dispute or refrain from disputing any claim made by Buyer under this Agreement and the agreements to be entered into in connection with this Agreement, (C) negotiate and compromise any dispute that may arise under this Agreement and the agreements to be entered into in connection with this Agreement, (D) pay any amounts due Buyer under this Agreement, (E) exercise or refrain from exercising any remedies available to Seller Group Members under this Agreement and the agreements to be entered into in connection with this Agreement, (F) sign any releases or other documents with respect to any such dispute or remedy, (G) waive any condition contained in this Agreement and the agreements to be entered into in connection with this Agreement, (H) give such instructions and to take do such action or other things and refrain from taking doing such action, on behalf of such Seller, other things as the any Member Representative deemsRepresentative, in his her sole discretion, deems necessary or appropriate to carry out the provisions of this Agreement, including Agreement and the exercise of agreements to be entered into in connection with this Agreement and (I) receive all rights granted amounts payable by Buyer to Sellers Seller Group Members under this Agreement. Buyer may rely exclusively Agreement on any notices and other acts behalf of the Member Representative as being legally binding acts of each Seller individually and Sellers collectively. For purposes of clarity, any decision or action by the Member Representative constitutes a decision or action of all Sellers is final and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller to the Member Representative is deemed coupled with an interest and all authority conferred is irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or eventsGroup Members.

Appointment of Member Representative. By executing (a) Xxxxx Xxxxxxxx is hereby appointed as the sole and delivering exclusive representative for and on behalf of the Company Members (the “Member Representative”). The Member Representative shall enter into the Escrow Agreement and the Member Representative Escrow Agreement and take all actions required or permitted under the terms of, or otherwise deemed necessary or appropriate in connection with the transactions contemplated by, this Agreement, the Escrow Agreement with respect to the interests and rights of the Company Members with respect to the indemnity under Article VII hereof, and the Member Representative Escrow Agreement and by executing this Agreement the Member Representative accepts such appointment. No bond shall be required of the Member Representative and the Member Representative shall receive no compensation for its services. Notices of communications to or from the Member Representative pursuant to the notice requirements set forth in Section 9.1 of this Agreement shall constitute notice to or from each Seller irrevocably appoints Xxxxxxx Xxxxxx of the Company Members. Notwithstanding the foregoing, the Member Representative may deliver notice of communications to any Company Member via email to an address specified by such Company Member. If the Member Representative is no longer able or willing to serve in such capacity (or if otherwise desired by the former holders of Company Membership Units that became entitled to receive, as of the Effective Time, at least a majority of the Initial Merger Consideration paid to all holders of Company Membership Units) such former holders may select a replacement for the Member Representative. The newly appointed representative shall deliver notice of his or her or its appointment to Parent as soon as practicable. (b) The Member Representative shall not be liable for any act done or omitted in such capacity while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Members shall severally (and not jointly) indemnify the Member Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Member Representative and arising out of or in connection with the acceptance or administration of his duties under any Transaction Document, which may be paid from, but shall not be limited by, the Member Representative Escrow Fund. Parent, Merger Sub, the Surviving Company and the Company (after the Closing) shall have no liability whatsoever for any action or failure to act by the Member Representative. (c) Any decision, act, consent or instruction of the Member Representative made in accordance with this Agreement, the Escrow Agreement or the Member Representative Escrow Agreement shall constitute a decision of all Company Members and shall be final, binding and conclusive upon every Company Member, and the Escrow Agent, Parent and the Surviving Company may rely, without inquiry, upon any decision, act, consent or instruction of the Member Representative as being the decision, act, consent, or instruction of every such Company Member. (d) The Member Representative is authorized to incur reasonable costs and expenses in connection with the administration of this Agreement, the representation of the Company Members in connection with any claims of any type for which the Company Members, directors, officers, employees or agents may be liable under this Agreement or otherwise, in each case including, without limitation, reasonable attorneys’ and accountants’ fees. The Member Representative may consult with its own counsel and utilize such other advisors in carrying out its duties under any Transaction Document as the Member Representative deems appropriate and, without limiting the foregoing, the Member Representative shall have full and complete authorization and protection for any action taken in accordance with power the opinion of designation such counsel, except in the case of fraud or willful misconduct by the Member Representative. Such costs and assignment expenses shall be paid out of the Member Representative Escrow Fund. The Member Representative shall not be entitled to any compensation for its time or any other payment, except payment from the Member Representative Escrow Fund for the reasonable costs and expenses incurred in accordance with this Section 7.10. (e) Pursuant to the terms of the Member Representative Escrow Agreement, the Member Representative may (i) make withdrawals from the Member Representative Fund for its own account in accordance with an invoice for expenses and (ii) direct payments to be made from the Member Representative Escrow Fund as his appropriate. At any time after all matters for which the Member Representative is responsible under any Transaction Document have been finally concluded, all amounts payable from the Member Representative Escrow Fund in connection therewith have been paid and no further action by the Member Representative is required, and after all indemnity obligations owed to the Member Representative if any, have been paid or its otherwise resolved, any and all amounts remaining in the Member Representative Escrow Fund, including any income thereon, shall be distributed by the Member Representative to the Paying Agent to be distributed to the Company Members in accordance with Section 2.9 if the Paying Agent is still serving in that capacity and, otherwise, such amounts shall be distributed by the Escrow Agent to the Company Members or their designees in accordance with the provisions of the Member Representative Escrow Agreement. (f) The adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby by the requisite Company Members shall constitute: (i) approval by all Company Members of this Agreement, the Escrow Agreement and the Member Representative Escrow Agreement and of all of the arrangements relating thereto; (ii) approval by all Company Members of the appointment of the Member Representative pursuant to this Agreement, the Escrow Agreement and the Member Representative Escrow Agreement and the acknowledgement and agreement by all Company Members that all decisions and rights of the Company Members under any of the Transaction Documents shall thereafter be made or exercised solely by the Member Representative; (iii) the approval by all Company Members of the establishment of the Member Representative Escrow Fund and the administration of the same in accordance with this Section 7.10, and (iv) the approval by all Company Members of the Member Representative as their agent and true and lawful attorney-in-fact with the power and agent with full power of substitution, authority to act for in the name, place and on behalf ofstead of the Company Members in connection with the transactions contemplated by this Agreement or the other Transaction Documents, and in the name ofto do or refrain from doing all such further acts and things, and to execute all such Seller with the full power, without the consent of such Seller, to exercise agreements and documents as the Member Representative deems necessary or appropriate in his sole discretion deems appropriate, connection with the powers such Seller could exercise under transactions contemplated by this Agreement or the other Transaction Documents, subject to the limitations set forth in this Section 7.10. (g) The Member Representative shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees to the extent necessary for purposes of performing its duties and exercising its rights hereunder, provided that the Member Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to individuals who agree to keep such information confidential). (h) The Member Representative shall (subject to applicable Law) have the power to: (i) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Parties) relating to the Transaction Documents or any of the transactions and other matters contemplated hereby or thereby (except to the extent that the Transaction Documents expressly contemplate that any such notice or communication shall be given or received by a Company Member individually); (ii) execute the Escrow Agreement as the representative of the Company Members, and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate; (iii) act for the Company Members with regard to negotiating, defending, investigating, settling or taking other actions with respect to any indemnification or other claims and executing instructions to the Escrow Agent with respect to disbursement of funds from the Escrow Fund; (iv) execute and deliver all ancillary agreements, certificates and documents that the Member Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by the Transaction Documents; (v) do or refrain from doing any further act or deed on behalf of the Company Members that the Member Representative deems necessary or appropriate in its sole discretion relating to the subject matter of the Transaction Documents as fully and completely as the Company Members could do if personally present; (vi) agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand arbitration or litigation of, and comply with orders of arbitrators or courts with respect to, (A) indemnification claims by Parent or any other Indemnified Party pursuant to this Article VII or (B) any dispute between any Indemnified Party and any Company Member, in each case relating to this Agreement or the other Transaction Documents; (vii) receive and distribute, pursuant to the Escrow Agreement or the Member Representative Escrow Agreement, as applicable, any portion of the Escrowed Consideration, if any, or the Member Representative Escrowed Consideration, if any, payable to any of the Company Members or their designees; (viii) perform all duties of the Member Representative described in this Agreement or any other Transaction Document; and (ix) take all other actions necessary or appropriate in the judgment of the Member Representative in connection with this Agreement and for the transactions contemplated in this Agreement. Without limiting the generality accomplishment of the foregoing, each Seller irrevocably grants the Member Representative full power and authority: (1) to give and receive notices and communications relating to the transactions and other matters contemplated by this Agreement; (2) to execute and deliver, on behalf of such Seller, and to accept delivery of, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) or any of the instruments to be delivered to Buyer by such Seller pursuant to this Agreement; and (h) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Member Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement, including the exercise of all rights granted to Sellers under this Agreement. Buyer may rely exclusively on any notices and other acts of the Member Representative as being legally binding acts of each Seller individually and Sellers collectively. For purposes of clarity, any decision or action by the Member Representative constitutes a decision or action of all Sellers is final and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller to the Member Representative is deemed coupled with an interest and all authority conferred is irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or events.

Appointment of Member Representative. By executing and delivering this Agreement, each Seller irrevocably appoints (a) . (a) The Company Members have elected Xxxxxxx Xxxxxx to serve Xxxxx as the Member Representative with power of designation to act as the Company Members’, Indemnifying Members’ and assignment as his or its true and lawful attorney-in-fact IP Indemnifying Members’ representative and agent for all purposes under this Agreement and the Escrow Agreement. The Member Representative is authorized to execute on behalf of each Company Member, Indemnifying Member and IP Indemnifying Member any and all documents and agreements referred to herein and to act as representative for the benefit of, and to enforce and protect the rights and interests of, each such Company Member, Indemnifying Member and IP Indemnifying Member in connection with matters contemplated herein and in the Escrow Agreement. By way of example only, and without limitation, the Member Representative shall have full power and authority on behalf of substitutioneach Company Member, Indemnifying Member and IP Indemnifying Member in her sole discretion to act for (i) execute on behalf of each Company Member, Indemnifying Member and IP Indemnifying Member, as fully as if the Company Members, Indemnifying Members and IP Indemnifying Members, as applicable, were acting on their own behalf, any and all documents and agreements referred to herein, including executing this Agreement and the Escrow Agreement as the Member Representative and to agree to such amendments or modifications thereto as to which Member Representative in her sole discretion shall deem advisable, (ii) take any and all actions on behalf of, execute any and all instruments on behalf of, and in the name execute or waive any and all rights of, such Seller with the full power, without the consent of such Seller, to exercise as the Member Representative in his sole discretion deems appropriateCompany Members, the powers such Seller could exercise Indemnifying Members and the IP Indemnifying Members under this Agreement and to take all actions necessary or appropriate in the judgment of the Member Representative in connection with this Escrow Agreement and the transactions matters contemplated in this Agreement. Without limiting the generality of the foregoingherein and therein, each Seller irrevocably grants the Member Representative full power and authority: including pursuing, defending, settling, or appealing any claim, proceeding, action or investigation, (1iii) to give and receive notices and communications relating to or instructions permitted or required under this Agreement or the transactions and other matters contemplated by this Agreement; (2) to execute and deliver, Escrow Agreement on behalf of such Sellerthe Company Members, Indemnifying Members and IP Indemnifying Members, as applicable, (iv) authorize the release of the amounts held in the Escrow Fund to accept delivery ofpay any Claimed Amount, on behalf of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3v) to make decisions on behalf of such Seller undertake any actions with respect to the transactions contemplated by this Agreementresolution of a Dispute or any disagreement or otherwise with respect to Sections 1.6 or 1.7 or Article V, including regarding partaking in any dispute resolution process and determination related to the Closing Distributable Amount or A/R Schedule, and (avi) indemnification claims, refrain from taking any action that the Member Representative is otherwise authorized hereunder to take. (b) amendments The Member Representative may resign at any time upon giving five (5) days written notice to this Agreement Buyer and the Company Members. Each Company Member agrees that, should the Member Representative resign or any other document delivered be unable to serve, the Company Members having received a majority of the aggregate Merger Consideration shall appoint a single substitute agent to take on the responsibilities of such Member Representative under itthe provisions specified herein, and whose appointment shall be effective on the date of the appointment of the new Member Representative. (c) the defense of Third Party Claims that may be the subject of indemnification claimsExcept for gross negligence, and to negotiateintentional misrepresentation or willful misconduct, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate shall not be liable to any person (including any Company Member, Indemnifying Member or IP Indemnifying Member) or entity for any act, omission, loss, consequential damages, lost profits, damage, cost or expense arising from the performance of her duties hereunder. The Member Representative shall only have the duties expressly stated in this Agreement and apply such funds in payment for such expenses; (e) to enforceshall have no other duty, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to express or implied. The Member Representative may engage attorneys, accountants and other agents at professionals and experts. The Member Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Member Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in the exercise of reasonable judgment. The Member Representative is not responsible for determining and verifying the authority of any person acting or purporting to act on behalf of any party to this Agreement or the agreements contemplated herein. The Company Members shall indemnify, defend and hold the Member Representative harmless from and against any and all loss, damage, tax, liability, cost and expense incurred (absent final adjudication that any such loss, damage, tax, liability, cost or expense resulted from the gross negligence, intentional misrepresentation or willful misconduct of Sellers; the Member Representative) and arising out of or in connection with the acceptance or administration of her duties hereunder including the legal costs and expenses incurred in connection with fulfilling her duties hereunder or defending herself against any claim or liability in connection with her performance hereunder (gcollectively, “Member Representative Damages”), in accordance with their Pro Rata Shares. In the event of any indemnification or reimbursement under this Section 1.10(c), upon written notice from Member Representative to the Company Members as to the existence of a deficiency toward the payment of any such indemnification or reimbursement amount after exhausting the Aggregate Expense Fund Amount, each Company Member shall promptly deliver to the Member Representative full payment of his or her Pro Rata Share of such deficiency. In no event shall the Buyer, the Company or the Surviving LLC have any liability to any Company Member for any act or omission of the Member Representative, including as a result of the negligence, fraud, intentional misrepresentation or willful misconduct of the Member Representative. (d) The Member Representative will serve without compensation, but, per above, shall be entitled to the payment of all her expenses incurred as the Member Representative. At the Closing, the Member Representative shall receive from Buyer and retain, pursuant to the terms hereof, the Aggregate Expense Fund Amount (equal to $534,000) to amend be used by the Member Representative to pay costs, fees and expenses incurred by Member Representative in her capacity as the Member Representative, and, in the Member Representative’s sole discretion, to pay certain amounts due by the Company Members pursuant to this Agreement (other than this Section 6.25(Aincluding, without limitation, pursuant to Sections 1.6 and 1.7)) . Once the Member Representative determines, in her sole discretion, that the Member Representative will not incur any additional fees, costs or expenses in her capacity as the Member Representative, or pay any of further amounts due by the instruments to be delivered to Buyer by such Seller Company Members pursuant to this Agreement; and (h) , then the Member Representative will distribute to give such instructions and each Company Member its Pro Rata Share of the remaining unused portion of the Aggregate Expense Fund Amount, if any. The Member Representative shall also distribute to take such action or refrain from taking such action, the Company Members any amounts received by the Member Representative on behalf of such Sellerthe Company Members pursuant to the terms of this Agreement (including pursuant to Sections 1.6 or 1.7). Following the termination of the Escrow Agreement and the resolution and payout of all pending claims made by Indemnified Parties for Damages, as the Member Representative deemsshall have the right to recover any Member Representative Damages which have not yet been reimbursed pursuant to Section 1.10(c) above from the remaining portion, if any, of the Escrow Fund, prior to any distribution of the Escrow Fund to the Company Members. Prior to any such distribution, the Member Representative shall deliver to the Escrow Agent a certificate setting forth the Member Representative Damages actually incurred. In the event that the Escrow Fund is insufficient to reimburse the Member Representative Damages, the obligation of the Company Members pursuant to Section 1.10(c) to promptly reimburse the Member Representative for all Member Representative Damages shall remain in his sole discretion, necessary effect until satisfied. No Company Member shall have any claim or appropriate right of action against either the Buyer or the Surviving LLC as a result of the Member Representative’s failure to carry out make any payment of any amounts owing to such Company Member pursuant to the provisions terms of this Agreement to the extent that Buyer has properly distributed such amounts to the Member Representative in accordance with the terms of this Agreement. (e) Any notice, including direction or communication received by the exercise Buyer, Merger Sub or the Surviving LLC from the Member Representative, or delivered to the Member Representative by Buyer, Merger Sub or the Surviving LLC, shall be binding upon the Company Members, the Indemnifying Members and the IP Indemnifying Members, as applicable, and each of them, as if such notice, direction or communication has been received directly by, or delivered directly to, such Person. The Member Representative shall act in all rights granted to Sellers under this Agreementmatters on behalf of the Company Members, Indemnifying Members and IP Indemnifying Members. Buyer may and Merger Sub, and, after the Effective Time, the Surviving LLC, shall be entitled to rely exclusively on any notices and other acts the actions of the Member Representative hereunder as being legally binding acts the actions of each Seller individually the Company Members, Indemnifying Members and Sellers collectivelyIP Indemnifying Members. For purposes Buyer, Merger Sub and the Surviving LLC may deliver notices and communications to the Company Members hereunder through the Member Representative at the address set forth in this Agreement for notices, and such delivery shall be deemed to have been made to any or all of claritythe Company Members. None of Buyer, Merger Sub nor the Surviving LLC shall pay any decision costs or action expenses incurred by the Member Representative constitutes a decision or action in carrying out her obligations hereunder. All of all Sellers is final the indemnities, immunities and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney powers granted by each Seller to the Member Representative under this Agreement shall survive the Effective Date and any termination of this Agreement or the Escrow Agreement. (f) Each of Buyer, Merger Sub and the Surviving LLC consents to the appointment of the Member Representative to act as described hereunder. The grant of authority provided for in this Section 1.10: (i) is deemed coupled with an interest and all authority conferred is shall be irrevocable whether by death and survive the death, incompetency, bankruptcy or incapacity liquidation of any such Seller or Company Member; and (ii) shall survive the occurrence consummation of any other event or eventsthe Merger.

Appointment of Member Representative. By executing (a) Each Member irrevocably constitutes and delivering appoints Xx Xxxxxxx as Member Representative and as such Member’s true and lawful attorney in fact and agent and authorizes Member Representative acting for such Member and in such Member’s name, place and stead, in any and all capacities to do and perform every act and thing required or permitted to be done in connection with this Agreement, each Seller irrevocably appoints Xxxxxxx Xxxxxx as fully to serve all intents and purposes as the such Member Representative with power might or could do in person, including taking any and all action on behalf of designation and assignment such Member from time to time as his or its true and lawful attorney-in-contemplated hereunder. Each Member grants unto said attorney in fact and agent with full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all act Member Representative may lawfully do or cause to be done by virtue hereof. Each Member acknowledges and agrees that upon execution of substitutionthis Agreement, to act for and on behalf ofupon any delivery by Member Representative of any Ancillary Agreement, and in the name ofwaiver, amendment, agreement, certificate or other document executed by Member Representative, such Seller with the full powerMember shall be bound by such documents or actions as fully as if such Member had executed and delivered such documents or taken such actions. Members shall pay all fees, without the consent of such Sellercosts and expenses, to exercise as the including legal, accounting and other advisor fees, incurred by Member Representative in his sole discretion deems appropriateperforming Member Representatives’ duties hereunder in accordance with their Pro Rata Shares. Each Member acknowledges and agrees that except as otherwise provided herein, the powers such Seller could exercise under all payments owed to Members pursuant to this Agreement or otherwise shall be paid by High Tide or their respective designees, as applicable, to Member Representative for subsequent distribution to Members. Each Member further acknowledges that any payment made to Member Representative on behalf of any Member shall be deemed to have been directly paid to such Member and agrees that High Tide’s respective payment obligations hereunder shall be satisfied in full upon receipt by Member Representative of such payment and Members and Member Representative hereby waive any and all claims against High Tide relating to take any such payment. 000-0000-0000/9/AMERICAS 69 (b) Member Representative shall be indemnified, held harmless and reimbursed by Members severally based on each Member’s Pro Rata Share, and not jointly, against all actions necessary costs, expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid or appropriate in the judgment of the incurred by Member Representative in connection with this Agreement and the transactions contemplated in this Agreement. Without limiting the generality any Action to which Member Representative is made a party by reason of the foregoing, each Seller irrevocably grants the fact that it is or was acting as Member Representative full power and authority: (1) to give and receive notices and communications relating pursuant to the transactions and other matters contemplated by terms of this Agreement; (2) to execute and deliverprovided, on behalf however, that the foregoing indemnification shall not apply in the event of such Seller, and to accept delivery of, on behalf any Action which finally adjudicates the liability of such Seller, such documents as may be deemed by the Member Representative, in his sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement; (3) to make decisions on behalf of such Seller with respect to the transactions contemplated by this Agreement, including regarding (a) indemnification claims, (b) amendments to this Agreement or any other document delivered under it, and (c) the defense of Third Party Claims that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such Third Party Claims for indemnification; (d) to receive funds, make payments of funds, and give receipts for funds or to receive funds for the payment of expenses of Sellers or to deposit such funds in such accounts as the Member Representative deems appropriate and apply such funds in payment hereunder for such expenses; (e) to enforce, on behalf of such Seller, any claim against Buyer arising under this Agreement; (f) to engage attorneys, accountants and other agents at the expense of Sellers; (g) to amend this Agreement (other than this Section 6.25(A)) its bad faith or any of the instruments to be delivered to Buyer by such Seller pursuant to this Agreement; and (h) to give such instructions and to take such action or refrain from taking such action, on behalf of such Seller, as the Member Representative deems, in his sole discretion, necessary or appropriate to carry out the provisions of this Agreement, including the exercise of all rights granted to Sellers under this Agreement. Buyer may rely exclusively on any notices and other acts of the Member Representative as being legally binding acts of each Seller individually and Sellers collectively. For purposes of clarity, any decision or action by the Member Representative constitutes a decision or action of all Sellers is final and binding on all Sellers. No Seller may object to, dissent from, protest or otherwise contest Member Representative’s decision or action under this Section 6.25. The appointment and power of attorney granted by each Seller to the Member Representative is deemed coupled with an interest and all authority conferred is irrevocable whether by death or incapacity of any such Seller or the occurrence of any other event or eventswillful misconduct.