Common use of Appointment of Stockholder Representative Clause in Contracts

Appointment of Stockholder Representative. Solely for purposes of any dispute that survives the Closing pursuant to Section 4.01(b)(ii) and Section 4.09 hereof, the Stockholder Representative is hereby appointed, authorized and empowered to be the exclusive proxy, representative, agent and attorney-in-fact of the Company Stockholders, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for such Company Stockholder at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated thereby, and in connection with the activities to be performed by or on behalf of such Company Stockholder under Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholder Representative shall have the power to take any of the following actions on behalf of the Company Stockholders: to execute, deliver and perform the Escrow Agreement; to give and receive notices, communications and consents hereunder and under the Escrow Agreement; to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other third-party intermediaries with respect to any disputes arising under this Agreement or the Escrow Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 11.01 and the transactions contemplated hereby or by the Escrow Agreement.

Appointment of Stockholder Representative. Solely for purposes of any an dispute that survives the Closing pursuant to Section 4.01(b)(ii) and Section 4.09 2.11 hereof, the Stockholder Representative is hereby appointed, authorized and empowered to be the exclusive proxy, representative, agent and attorney-in-fact of the Company Stockholdersstockholders, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for such Company Stockholder stockholder at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, Sections 4.01(b)(ii) and 4.09 Section 2.11 of this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated thereby, and in connection with the activities to be performed by or on behalf of such Company Stockholder stockholder under Sections 4.01(b)(ii) and 4.09 Section 2.11 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholder Representative shall have the power to take any of the following actions on behalf of the Company Stockholdersstockholders: to execute, deliver and perform the Escrow Agreement; to give and receive notices, communications and consents hereunder and under the Escrow Agreement; to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other third-party intermediaries with respect to any disputes arising under this Agreement or the Escrow Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 11.01 9.1 and the transactions contemplated hereby or by the Escrow Agreement.

Appointment of Stockholder Representative. Solely for purposes (a) As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any dispute that survives the Closing pursuant to Section 4.01(b)(ii) and Section 4.09 hereofPerson, the Company Securityholders shall be deemed to have approved the designation of M/C Venture Partners V, L.P. (in such capacity, the “Stockholder Representative is hereby appointed, authorized and empowered to be Representative”) as the exclusive proxy, representative, agent and attorney-in-fact and agent for and on behalf of each Company Securityholder and their respective heirs, successors and assigns with respect to the post-Closing adjustments contemplated by Section 3.9 and post-Closing issues and disputes and the taking by the Stockholder Representative of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Representative under this Agreement and the Escrow Agreement, including the exercise of the power to: (i) authorize the release or delivery to Purchaser of all or any portion of the Escrow Amount whether with respect to the payment (if any) to Purchaser or the Company Securityholders resulting from the post-Closing adjustments contemplated by Section 3.9 (and in connection therewith calculating the portion of any adjustment in the Company Securityholders’ favor that is payable to any Securityholder) or with respect to any Specified Matter; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any post-Closing issues and disputes, including any Specified Matter; (iii) litigate, arbitrate, resolve, settle or compromise any post-Closing issues and disputes, including any Specified Matter; (iv) establish the Reserve Account and pay such amounts therefrom as the Stockholder Representative deems necessary or appropriate in its good faith judgment; (v) waive any breach or default of Purchaser or Merger Sub under this Agreement or the Escrow Agreement; and (v) take all actions necessary in the judgment of the Stockholder Representative for the accomplishment of the foregoing and any other post-Closing matters. As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Stockholder Representative shall have authority and power to act on behalf of the Company StockholdersSecurityholders with respect to the disposition, settlement or other handling of the adjustments contemplated by Section 3.9 and all rights or obligations arising under Section 3.9, and the Company Securityholders shall be bound by all actions taken and documents executed by the Stockholder Representative in connection with full power Section 3.9, and Purchaser shall be entitled to rely on any action, decision, consent or instruction of substitutionthe Stockholder Representative, including as being an act, decision, consent or instruction of any Company Securityholder. In performing the functions specified in this Agreement, the Stockholder Representative may act upon any instrument or other writing believed by the Stockholder Representative to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement or the Escrow Agreement in the absence of gross negligence or willful misconduct on the part of the Stockholder Representative. As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders shall be deemed to have agreed that the Stockholder Representative shall be indemnified and held harmless (out of funds that otherwise are to be distributed from the Escrow Amount to the Company Securityholders, if any, as described in the following sentence) from and against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders shall be deemed to have agreed that any out-of-pocket costs and expenses incurred by the Stockholder Representative in connection with actions taken by the Stockholder Representative pursuant to the terms of Section 3.9 (including the hiring of legal counsel and the incurring of legal fees and costs) (“Representative Expenses”) shall be the responsibility of the Company Securityholders based on their Escrow Pro Rata Shares. Notwithstanding anything to the contrary contained in this Agreement, as, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders agree that if (i) the Stockholder Representative determines that the Reserve Amount and earnings thereon is not sufficient to pay actual or anticipated Representative Expenses, and (ii) such Company Securityholders representing Escrow Pro Rata Shares of at least 64% in the aggregate have agreed in writing to contribute an additional aggregate amount to the Reserve Account as proposed by the Stockholder Representative in writing to all Persons listed on Exhibit C hereto, then each such Company Securityholder shall be obligated, within ten (10) days after written notice from the Stockholder Representative, to make all decisions and determinations and contribute to act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for the Reserve Account such Company Stockholder at any time in connection withSecurityholder’s Escrow Pro Rata Share of the additional aggregate amount of such additional Reserve Amount. As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders shall be deemed to have agreed that may upon final distribution of the Escrow Amount, the Escrow Agent shall pay to the Stockholder Representative, out of the aggregate Escrow Amount that otherwise are to be necessary or appropriate distributed to accomplish the intent and implement Company Securityholders, if any, pursuant to the provisions of, Sections 4.01(b)(ii) and 4.09 terms of this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated therebyany unpaid Representative Expenses, and in connection with the activities to be performed by or on behalf of such Company Stockholder under Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointmentmay withhold a disproportionate amount from any Company Securityholder(s) that were the cause of any Representative Expenses, authority and power. Without without limiting the generality of the foregoing, the Stockholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement, and to consent to any amendment hereof or thereof, on behalf of all the Company Securityholders and their respective heirs, successors and assigns. (b) As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders shall be deemed to have appointed and constituted the Stockholder Representative the true and lawful attorney-in-fact of the Company Securityholders, with full power in their name and on their behalf to act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Stockholder Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering the Escrow Agreement and any other agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with the Escrow Agreement. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Company Securityholder, by operation of law, whether by such person’s death, disability, protective supervision or any other event. Without limiting the foregoing, this power of attorney is to ensure the performance of a special obligation and, accordingly, by approval of the Merger, each Company Securityholder shall be deemed to have waived and renounced its, his or her right to renounce this power of attorney unilaterally any time before the day following the Release Date. As, and by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger and without any further action on the part of any Person, the Company Securityholders shall be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the action of the Stockholder Representative taken under the Escrow Agreement. Notwithstanding the power to take any of attorney granted in this Article V, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Company Securityholder (instead of the following actions on behalf Stockholder Representative) having signed or given the same directly. (c) Company Stockholders who in the aggregate hold at least seventy-five percent (75%) of the Company Stockholders: to execute, deliver and perform ’ interest in the Escrow Agreement; Amount shall have the right at any time prior to give and receive notices, communications and consents hereunder and under the date that the funds deposited with the Escrow AgreementAgent are distributed in accordance with Section 3.9(d) to remove the then-acting Stockholder Representative and to appoint a successor Stockholder Representative; provided, however, that neither such removal of a then acting Stockholder Representative nor such appointment of a successor Stockholder Representative shall be effective until (x) notice of such act has been provided to negotiatePurchaser, enter into settlements and compromises of, resolve and comply with orders (y) the delivery to the Escrow Agent of courts and awards executed counterparts of arbitrators or other third-party intermediaries a writing signed by each such Company Stockholder constituting a majority of interests with respect to any disputes arising under such removal and (z) appointment, together with an acknowledgment signed by the successor Stockholder Representative appointed in such writing that it, he or she accepts the responsibility of successor Stockholder Representative and agrees to perform and be bound by all of the provisions of this Agreement or the Escrow Agreement; and applicable to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholder Representative, with a copy of such acknowledgment being promptly provided to Purchaser. Each successor Stockholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Stockholder Representative, and the term “Stockholder Representative” as used herein and in the Agency Agreement shall be deemed to include any interim or successor Stockholder Representative. (d) It is understood and agreed by each of the parties hereto that nothing in this Agreement shall be construed or deemed to expand or create any right on the part of a Company Securityholder, with respect to Purchaser or any of its sole affiliates, or any obligation on the part of Purchaser, or any of its Affiliates, to any Company Securityholder not otherwise expressly set forth in clear and absolute discretionunambiguous terms in this Agreement (to the extent that there may be any such provisions herein). (e) Each Company Securityholder, may consider necessary as and by the approval of the Merger by the Company Stockholders (as evidenced by the Written Consent) and/or by virtue of the Merger and without any further action on the part of any Person, is deemed to have agreed to release and discharge Purchaser, the Surviving Corporation and each of their respective Affiliates from and against any liability arising out of or proper or convenient in connection with the Stockholder Representative’s failure to distribute any amounts received by the Stockholder Representative on behalf of such Company Securityholders and each of Purchaser, the Surviving Corporation, each of their respective Affiliates and the Escrow Agent are hereby relieved from any liability to any Person for acts or omissions done or taken by them in accordance with such decision, act, consent or instruction of the Stockholder Representative. (f) The Stockholder Representative hereby represents and warrants to carry out Purchaser that (i) the activities described it has all requisite power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder, (ii) this Agreement has been duly authorized, executed and delivered by the Stockholder Representative and (iii) this Agreement constitutes a valid and binding agreement enforceable against such Stockholder Representative in accordance with its terms. (g) Notwithstanding anything to the contrary contained herein, the Company shall act on its own behalf at all times prior to the Effective Time, shall sign on its own behalf and shall not appoint any Person as its lawful attorney-in-fact. (h) Notwithstanding anything in this Section 11.01 Agreement to the contrary (i) the Stockholder Representative shall not make any elections or decisions or take any other actions that would reasonably be expected to have a disproportionately adverse effect on any individual Company Securityholder as compared to other Company Securityholders holding the same class or series of capital stock of the Company, except to the extent such disproportionate treatment results directly from a post-Closing matter involving such Company Securityholder and (ii) without the written consent of any Company Securityholder, the Stockholder Representative shall not have any authority to increase the post-Closing liability of such Company Securityholder with respect to the transactions contemplated hereby or by the Merger Agreement beyond its Escrow AgreementPro Rata of the Escrow Amount and the Reserve Amount (as increased, if at all, in accordance with Article V).

Appointment of Stockholder Representative. Solely for purposes The Company and the Stockholders hereby designate Kennxxx X. Xxxxx, Xx. (xx in the event of any dispute that survives his death, incapacity or inability to serve as Stockholder Representative, then Davix Xxxxx), xo be the Closing pursuant "Stockholder Representative" referred to Section 4.01(b)(ii) elsewhere in this Agreement and Section 4.09 hereof, in the Escrow Agreement. The Stockholder Representative shall have the authority to take all such action and to exercise such discretion as is required of the Stockholder Representative is hereby appointedpursuant to the terms of this Agreement, authorized and empowered to all of which actions shall be the exclusive proxy, representative, agent and attorney-in-fact binding on each of the Company Stockholders, with full power of substitutionincluding, without limitation, the following: (a) to make all decisions receive, hold and determinations deliver to the Company for cancellation the share certificates representing the Class A Common Stock, the Conversion Shares, the Restricted Shares, the Options and Warrants and any other documents relating thereto; (b) to act and execute, deliver acknowledge, deliver, record and receive file all documentsancillary agreements, instruments certificates and consents on behalf of and as agent for such Company Stockholder at any time in connection with, and that may be documents which Purchaser deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (c) to accomplish receive any payments due and to cause such payments to be delivered to the intent and implement the provisions of, Sections 4.01(b)(ii) and 4.09 of Stockholders under this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated thereby, and in connection with the activities to be performed by or on behalf acknowledge receipt of such Company Stockholder under Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholder Representative shall have the power to take any of the following actions payments on behalf of the Company Stockholders: ; (d) to executeconvert the Subordinated Debentures; (e) to waive any breach or default under this Agreement, deliver and perform or to waive any condition precedent to the Escrow Closing under Article VII hereof; (f) to terminate, extend, amend or modify this Agreement; ; (g) to give and receive notices, communications and consents hereunder and under the Escrow Agreement; to negotiate, enter into settlements and compromises of, resolve and comply service of process in connection with orders of courts and awards of arbitrators or other third-party intermediaries with respect to any disputes arising claims under this Agreement or the Escrow Agreement; and (h) to perform the obligations and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that exercise the rights of the Stockholder RepresentativeRepresentative on behalf of the Stockholders, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 11.01 and the transactions contemplated hereby or by under the Escrow Agreement, including the settlement of any claims and disputes with Purchaser arising thereunder.

Appointment of Stockholder Representative. Solely for purposes (a) Each Seller hereby irrevocably constitutes and appoints RT Partners as the representative of any dispute that survives Sellers (the Closing pursuant “Stockholder Representative”) to Section 4.01(b)(ii) act as such Seller’s true and Section 4.09 hereof, the Stockholder Representative is hereby appointed, authorized and empowered to be the exclusive proxy, representative, agent and lawful attorney-in-fact of and agent and authorizes the Company StockholdersStockholder Representative acting for such Seller and in such Seller’s name, with full power of substitutionplace and stead, in any and all capacities to make all decisions do and determinations and to perform every act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for such Company Stockholder at any time in connection with, and that may thing required or permitted to be necessary or appropriate to accomplish the intent and implement the provisions of, Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated thereby, and done in connection with the activities to be performed transactions contemplated by or on behalf of such Company Stockholder under Sections 4.01(b)(ii) and 4.09 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholder Representative shall have the power to take any of the following actions on behalf of the Company Stockholders: to execute, deliver and perform the Escrow Agreement; to give and receive notices, communications and consents hereunder and under the Escrow Agreement; to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or (other third-party intermediaries than with respect to any disputes arising under this Agreement Section 7.3), as fully to all intents and purposes as such Seller might or the Escrow Agreement; and to makecould do in person, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and including as follows: (i) to take any and all action on behalf of Sellers from time to time as the Stockholder Representative may deem necessary or desirable to fulfill the interests and purposes of this Section 9.1 and to engage agents and representatives (including accountants and legal counsel) to assist in connection therewith; (ii) to take any and all action on behalf of Sellers from time to time as the Stockholder Representative may deem necessary or desirable to make or enter into any waiver, amendment, agreement, certificate or other document contemplated hereunder; (iii) to deliver all notices required to be delivered by Sellers; (iv) to receive all notices required to be delivered to Sellers; (v) to seek indemnification from Buyer under Article VIII, including the right to prosecute, defend, settle, compromise or take any other action with respect to any claim related thereto; and (vi) to execute the Escrow Agreement and make all decisions required or allowed to be made by the Stockholder Representative pursuant to the provisions thereof (including the right to defend, settle, compromise or take any other action on behalf of Sellers with respect to any matter for which any Buyer Group Member seeks indemnification under Article VIII). (b) Each Seller grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the matters described above, as fully to effect all intents and purposes as such Seller might or could do in person, hereby ratifying and confirming all that the Stockholder RepresentativeRepresentative may lawfully do or cause to be done by virtue hereof. Each Seller further acknowledges and agrees that, in its sole and absolute discretionupon execution of this Agreement, may consider necessary or proper or convenient in connection with or respect to carry out the activities described in this Section 11.01 and the transactions contemplated hereby or any delivery by the Escrow Stockholder Representative of any waiver, amendment, agreement, certificate or other documents executed by the Stockholder Representative pursuant to this Agreement, such Seller shall be bound by such documents as fully as if such Seller had executed and delivered such documents itself.

Appointment of Stockholder Representative. Solely for purposes of any an dispute that survives the Closing pursuant to Section 4.01(b)(ii) and Section 4.09 2.11 hereof, the Stockholder Representative is hereby appointed, authorized and empowered to be the exclusive proxy, representative, agent and attorney-in-fact of the Company Stockholdersstockholders, with full power of substitution, to make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of and as agent for such Company Stockholder stockholder at any time in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, Sections 4.01(b)(ii) and 4.09 Section 2.11 of this Agreement and the Escrow Agreement, and to facilitate the consummation of the transactions contemplated thereby, and in connection with the activities to be performed by or on behalf of such Company Stockholder stockholder under Sections 4.01(b)(ii) and 4.09 Section 2.11 of this Agreement and the Escrow Agreement. By executing this Agreement, the Stockholder Representative accepts such appointment, authority and power. Without limiting the generality of the foregoing, the Stockholder Representative shall have the power to take any of the following actions on behalf of the Company Stockholdersstockholders: to execute, deliver and perform the Escrow Agreement; to give and receive notices, communications and consents hereunder and under the Escrow Agreement; to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other third-party intermediaries with respect to any disputes arising under this Agreement or the Escrow Agreement; and to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that 56 the Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Section 11.01 9.1 and the transactions contemplated hereby or by the Escrow Agreement.