Common use of Appointment of the Representative Clause in Contracts

Appointment of the Representative. (a) Representative hereby agrees to serve as the representative of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to this Agreement and the other Transaction Documents, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of the Equityholders, and no Equityholder shall have the right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Representative hereby agrees In order to serve as administer efficiently the representative determination of the Equityholders pursuant to this Section 8.8 Estimated Purchase Price and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power Final Purchase Price and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim Losses, the Sellers, by their execution of this Agreement, irrevocably appoint the Representative as their agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b) The Representative is hereby authorized (1) to be entitled to indemnity pursuant to this Article VIII or Section 5.11take all action necessary in connection with the acceptance, all decisions rejection and actions relating to the adjustment determination of the Total Merger Consideration pursuant Estimated Purchase Price and the Final Purchase Price and the defense and/or settlement of any claims for Losses (including the power to Section 2.13pursue claims against Buyer, all decisions as to disbursements from the General Escrow Account and otherwise to act compromise any claim on behalf of the Equityholders Sellers and to transact matters of litigation, in each case pursuant to Article X), (2) to give and receive all respects notices required to be given under this Agreement, the Deposit Escrow Agreement, the Indemnification, Remediation and Adjustment Escrow Agreement and any other agreements contemplated hereby to which all of the Sellers are subject, and (3) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power: (i) to execute and deliver the Deposit Escrow Agreement and the Indemnification, Remediation and Adjustment Escrow Agreement and any amendments or waivers thereto as the representative of the Sellers; to execute any instructions or directions to the Escrow Agent with respect to this disbursements or other matters thereunder; to pay any expenses of the Sellers or the Representative from the Escrow Amount; and to take such further actions under the Indemnification, Remediation and Adjustment Escrow Agreement and the other Transaction DocumentsDeposit Escrow as the Representative deems to be necessary or appropriate; (ii) to execute and deliver all consents, waivers, ancillary agreements, share powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iv) to receive funds, make payments of funds, and give receipts for funds; (v) to receive funds for the payment of expenses of the Sellers (including the amendment Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses; and (vi) to receive service of process in connection with any claims under this Agreement. (c) In the event that the Representative becomes unable to perform its responsibilities hereunder or termination resigns from such position, the Sellers (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held, directly or indirectly, a majority of the voting power represented by the Units issued and outstanding immediately prior to Closing, will select another representative to fill such agreements. All vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement. (d) Subject to the Representative complying in all material respects with the terms of this Agreement, all instructions, decisions and actions by the Representative shall Representative, including the defense or settlement of any claims for Losses, and including the distribution of amounts held in the Escrow Account, will be binding upon all of the EquityholdersSellers, and no Equityholder shall Seller will have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In the event same or otherwise have any cause of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement. (be) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related The Representative will promptly provide written notice to the procedures Sellers upon receiving service of process in connection with any claims under this Agreement, and upon any settlement of such claims by the Representative. (f) Buyer will be able to rely conclusively on the instructions and decisions of the Representative as to the determination of the Estimated Purchase Price and the Final Purchase Price and the settlement of any claims for action being Losses and the distribution of any amounts held in the Escrow Account and any other actions required to be taken by the Representative as between the Representative hereunder, and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive no party hereunder will have any claims they may have or assert, including those that may arise in the future, cause of action against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims Buyer for any action taken by Buyer in reliance upon the instructions or inaction decisions of the Representative. (g) The Representative shall be indemnified and held harmless by the Sellers against all Losses paid or incurred in connection with any action, suit, proceeding or claim to which the Representative is made a party by reason of the fact that the Representative was acting as the Representative pursuant to this Agreement; provided, however, that the Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by such the Representative in connection herewithconstitute fraud, gross negligence, bad faith or willful misconduct. (ch) Each Equityholder that accepts payment of The Representative may use the Representative Holdback Amount in its sole discretion to pay the expenses incurred by the Representative under the authorization granted in this Agreement, including, without limitation, any consideration out-of-pocket expenses incurred by the Representative whether in respect of indemnification claims, the Merger as defense thereof or otherwise. (i) The provisions of this Section 12.23 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated herein shall by this Agreement. (j) The provisions of this Section 12.23 will be deemedbinding upon the heirs, by such acceptance legal representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers will mean and include the successors to the rights of the Sellers hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (k) Notwithstanding anything to the contrary contained in this Section 12.23, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification or a principal defense will be ineffective by reason only of it having been made or given to or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreementa Seller, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, directly if each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemedRepresentative, Buyer and such Seller consent by virtue of not objecting to such acceptance of payment, or by his, her or its execution dealings without the intermediary of the Letter of TransmittalRepresentative, or by the approval of this Agreement, as the case may be, such consent not to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insuranceunreasonably withheld. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Representative hereby agrees In order to serve as administer efficiently the representative of determination of, amongst other items, the Equityholders pursuant to this Section 8.8 Closing Residual Cash Consideration and a Representative Agreement substantially Final Residual Cash Consideration in accordance with the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power terms hereof and authority to make all decisions relating to the defense and/or settlement of any claims for which claim or Liability in connection with this Agreement or the transactions contemplated hereby, the Stockholders and Optionholders, by their adoption and approval of this Agreement, through the acceptance of any Kenexa Indemnified Party may Merger Consideration payable hereunder as well as, in certain cases, through separate instruments (including the Requisite Stockholder Approval and the Letters of Transmittal), irrevocably appoint the Representative as their agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection and determination of the Closing Residual Cash Consideration and the Final Residual Cash Consideration and/or the defense and/or settlement of any claim or Liability in connection with this Agreement or the transactions contemplated hereby, (ii) to give and receive all notices required to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to given under this Agreement and the other Transaction Documentsagreements contemplated hereby to which all of the Stockholders and Optionholders are subject and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (A) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (B) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (C) to receive funds, make payments of funds (including from the Representative Reserve Fund), and give receipts for funds; (D) to receive funds for the payment of expenses of the Stockholders and Optionholders (including the amendment Representative Reserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses; (E) to do or termination refrain from doing any further act or deed on behalf of the Stockholders and Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Stockholders and Optionholders could do if personally present; and (F) to receive service of process in connection with any claims under this Agreement. (c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such agreements. position, the Stockholders and Optionholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Company Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement. (d) All decisions and actions by the Representative shall Representative, including the defense or settlement of any claim or Liability in connection with this Agreement or the transactions contemplated hereby, will be binding upon all of the EquityholdersStockholders and Optionholders, and no Equityholder shall Stockholder or Optionholder will have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technologythe Paying Agent and the Escrow Agent will be able to rely conclusively on the instructions and decisions of the Representative and treat the Representative as the duty appointed representative of the Stockholders and Optionholders and any decision, Acquisition Sub act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as applicable, including as to the settlement or compromise of any claim or Liability in connection with this Agreement or the Surviving Corporation transactions contemplated hereby and any other actions required to be taken by the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub hereunder. Parent and the Surviving Corporation, on the one handCompany may, and the EquityholdersEscrow Agent and the Paying Agent shall, on disregard any notice or instruction received directly from any Stockholder or Optionholder, other than the other hand, be deemed to have been delivered to all EquityholdersRepresentative. Parent, Kenexa TechnologyMerger Sub, Acquisition Sub the Paying Agent and the Surviving Corporation shall be entitled Escrow Agent are hereby relieved from any Liability to rely exclusively any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative, and no party hereunder or Stockholder or Optionholder will have any cause of action against Parent, Merger Sub, the Paying Agent or the Escrow Agent for any action taken by such Person in reliance upon any communication the instructions or writings given or executed by decisions of the Representative. (f) All actions, decisions and instructions of the Representative in connection with will be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder will have any claims for indemnity and shall not be liable in any manner whatsoever cause of action against the Representative for any action taken or not taken in reliance upon taken, decision made or instruction given by the actions taken Representative under this Agreement, except for fraud or not taken or communications or writings given or executed willful misconduct by the Representative. Parent; (g) The provisions of this Section 11.20 are independent and severable, Kenexa Technology, Acquisition Sub are irrevocable and the Surviving Corporation shall coupled with an interest and will be entitled to disregard enforceable notwithstanding any notices rights or communications given remedies that any Stockholder or made by the Equityholders Optionholder may have in connection with the transactions contemplated by this Agreement; and (h) The provisions of this Section 11.20 will be binding upon the heirs, legal representatives, successors and assigns of each Stockholder and Optionholder, and any claims for indemnity unless given references in this Agreement to a Stockholder or made through an Optionholder or the RepresentativeStockholders or Optionholders will mean and include the successors to the rights of the Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.

Appointment of the Representative. (a) Representative hereby agrees In order to serve as administer efficiently the representative determination and payment of the Equityholders pursuant to this Section 8.8 Closing Residual Cash Consideration and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power Final Residual Cash Consideration and authority to make all decisions relating to the defense and/or settlement of any claims for Losses for which any Kenexa the Unitholders may be required to indemnify the Purchaser Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration Parties pursuant to Section 2.138 .02 or Section 10.01(l) hereof, each Unitholder, by his, her or its acceptance of any portion of the Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b) The Representative is hereby authorized (i) to take all decisions as action necessary in connection with the acceptance, rejection, determination and payment of the Closing Residual Cash Consideration and the Final Residual Cash Consideration and the defense and/or settlement of any claims for Losses (including the power to disbursements from the General Escrow Account and otherwise to act compromise any indemnity claim on behalf of the Equityholders in Unitholders and to transact matters of litigation) for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 or Section 10.01(l) hereof, (ii) to give and receive all respects with respect notices required to be given under this Agreement, the Escrow Agreement and the other Transaction Documentsagreements contemplated hereby to which all of the Unitholders are subject, including and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the amendment Representative shall deem necessary or termination appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Unitholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Unitholders or the Representative from the Escrow Amount; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate; (ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iv) to receive funds, make payments of funds, and give receipts for funds; (v) to receive funds for the payment of expenses of the Unitholders (including, without limitation, the Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses; (vi) to take or refrain from taking all actions necessary in direction and support of the Unitholders rights and obligations in respect of the matters set forth on the Special Disputes Schedule; (vii) to do or refrain from doing any further act or deed on behalf of the Unitholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Unitholders could do if personally present; and (viii) to receive service of process in connection with any claims under this Agreement. (c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Unitholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Class A Common Units issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement upon written notice of such agreements. substitution to the Purchaser. (d) All decisions and actions by the Representative Representative, including the defense or settlement of any claims for Losses for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 hereof, shall be binding upon all of the EquityholdersUnitholders, and no Equityholder Unitholder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In . (e) The Purchaser and the event of the death, incapacity or resignation of the Representative, a successor Representative Merger Sub shall be appointed in accordance with able to rely conclusively (without further evidence of any kind whatsoever, and without any duty of further inquiry) on the provisions instructions and decisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related as to the procedures for action being taken by determination and payment of the Representative as between the Representative Closing Residual Cash Consideration and the Equityholders. ParentFinal Residual Cash Consideration, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any settlement of its Affiliates that relate to the Representative’s role as such, including any claims for Losses for which the Unitholders may be required to indemnify the Purchaser Indemnified Parties pursuant to Section 8.02 or Section 10.01(l) hereof and any action or inaction other actions taken or not taken by such the Representative hereunder, and none of the parties hereto, the Unitholders or any other Person shall have any cause of action against the Purchaser or the Merger Sub for or in connection herewithrespect of (i) any action taken or not taken, decision made or instruction given by the Representative or (ii) any action taken or not taken by the Purchaser or the Merger Sub in reliance upon the instructions or decisions of the Representative. (cf) Each Equityholder that accepts payment of any consideration in respect All actions, decisions and instructions of the Merger as contemplated herein Representative shall be deemed, by such acceptance of payment, or by his, her or its execution conclusive and binding upon all of the Letter Unitholders, and no party hereunder or Unitholder shall have any cause of Transmittalaction against the Representative for any action taken or not taken, decision made or instruction given by the approval of Representative under this Agreement, as except for fraud or willful misconduct by the case may beRepresentative. Any action, decision or instruction hereunder or in connection herewith that is binding on the parties to have agreed that this Agreement (including the provisions determination, if any, of this Article VIII the Dispute Resolution Auditor) shall be binding upon such Equityholder all of the Unitholders. (g) The provisions of this Section 12.18 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Unitholder may have against the Representative in connection with the transactions contemplated by this Agreement. (h) The provisions of this Section 12.18 shall be binding upon the heirs, legal representatives, successors and assigns of such Equityholdereach Unitholder, and any references in this Agreement to a Unitholder shall mean and include the successors to the rights of the Unitholders hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (di) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged All reasonable fees and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed expenses incurred by the Representative in connection with this Agreement and/or in controlling any claims for indemnity and Tax contests with respect to the Company or any Subsidiary shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed paid by the Representative. Parent, Kenexa Technology, Acquisition Sub Unitholders on a pro rata basis based on their respective Common Percentages; provided that the Representative shall first make payment of such fees and expenses from the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the RepresentativeHoldback Amount.

Appointment of the Representative. Each Equityholder other than JMI hereby irrevocably appoints the Representative as such Equityholder’s true and lawful attorney-in-fact, proxy and agent, with full powers of substitution and resubstitution, in such Equityholder’s name, place and stead, in any and all capacities, in connection with this Agreement and the transactions contemplated by this Agreement, granting unto said attorney-in-fact, proxy and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with this Agreement and the transactions contemplated by this Agreement as fully to all intents and purposes as such Equityholder might or could do in person, including for the purposes of: (ai) taking any action on behalf of the Equityholders or any individual Equityholder other than JMI that may be necessary or desirable, as determined by the Representative hereby agrees in its sole discretion, in connection with the indemnification provisions set forth in Article X and the amendment of this Agreement in accordance with Section 11.2; (ii) taking any action on behalf of the Equityholders or any individual Equityholder other than JMI that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to serve as the adjustments or consideration payable under this Agreement; (iii) accepting notices on behalf of the Equityholders or any individual Equityholder other than JMI in accordance with Section 11.4; (iv) executing and delivering, on behalf of the Equityholders or any individual Equityholder other than JMI, any notices, documents or certificates to be executed by the Equityholders or any individual Equityholder other than JMI in connection with this Agreement and the transactions contemplated by this Agreement; and (v) granting any consent or approval on behalf of the Equityholders or any individual Equityholder other than JMI under this Agreement. As the representative of the Equityholders pursuant to or any individual Equityholder other than JMI under this Section 8.8 and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to this Agreement and the other Transaction Documents, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of act as the Equityholdersrepresentative, agent and proxy for each Equityholder other than JMI and shall have authority to bind each Equityholder other than JMI in accordance with this Agreement, and no such Equityholder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor The Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest no duties or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as suchobligations hereunder, including any claims for any action or inaction taken or not taken by fiduciary duties, except those set forth herein, and such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein duties and obligations shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or determined solely by the approval express provisions of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Representative hereby agrees The undersigned acknowledges, agrees, and accepts that pursuant to the Merger Agreement and on behalf of the undersigned and all of his, hers or its affiliates, heirs, personal representatives, assigns, and successors, TH Xxx Xxxxxx Advisors, L.P. is authorized, appointed and empowered to serve as the representative of each Seller Party with respect to the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially matters expressly set forth in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the Merger Agreement to be performed by Seller Representative, with full power and authority to make all decisions relating of substitution, to the defense and/or settlement extent, and subject to the limitations, set forth in the Merger Agreement. This appointment is not as an agent but as a term of the Merger contemplated by the Merger Agreement and accordingly such appointment is irrevocable by action of any claims Seller Party. Further, this appointment is deemed coupled with an interest and may not be revoked for which any Kenexa Indemnified Party may claim reason, except as expressly otherwise provided in the Merger Agreement. The undersigned hereby agrees to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to bound by (a) the adjustment appointment of Seller Representative as the undersigned’s representative for the purposes of the Total Merger Consideration pursuant Agreement and (b) the taking by Seller Representative, in its capacity as such, of any and all actions and the making of any decisions required or permitted to Section 2.13, all decisions as to disbursements from be taken by it under the General Merger Agreement and the Ancillary Documents (including the Escrow Account Agreement) for and otherwise to act on behalf of the Equityholders in all respects with respect to this Agreement and the other Transaction DocumentsSeller Parties. The undersigned agrees, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of the Equityholdersseverally, and no Equityholder shall have the right to object tobut not jointly, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of based on his, her or its respective Affiliates will have percentage of the Merger Consideration paid to the undersigned in accordance with the terms of the Merger Agreement (as determined in good faith by Seller Representative), to indemnify and hold harmless Seller Representative from any claims and all reasonable losses, liabilities and expenses (including the reasonable fees and expenses of counsel) arising out of or rights in connection with Seller Representative’s execution and performance (solely in its capacity as Seller Representative and not in its capacity as a Seller Party) of the Merger Agreement and the Ancillary Documents, except for fraud or willful misconduct by Seller Representative. The undersigned agrees and consents to contribution or indemnity from Parent, Kenexa Technology, Acquisition Subthe payment to Seller Representative of the Holdback Amount in accordance with the terms of the Merger Agreement. The undersigned agrees to otherwise abide by and be bound by the terms of the Merger Agreement relevant to Seller Representative. Buyer, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one handother Buyer Indemnitees, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation Escrow Agent shall be entitled to conclusively rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken and any agreements or not taken amendments entered into by Seller Representative in reliance upon its capacity as such and shall have no liability or obligation to any Seller Party of the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders Company in connection with any claims for indemnity unless given or made through the Representativerespect thereof.

Appointment of the Representative. (a) Each Seller and Sosnoff hereby irrevocably appoints the Representative hereby agrees to serve as the representative sole agent of the Equityholders pursuant to this Section 8.8 Sellers and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise Sosnoff to act on behalf of the Equityholders in all respects with respect such Person regarding any matter relating to or arising under this Agreement and the other Transaction Documentstransactions contemplated by this Agreement, including for the amendment purposes of: (i) receiving any payments due from the Buyer that are required under the terms of this Agreement to be paid to the Sellers or termination Sosnoff and, where applicable, distributing such payments to the Sellers or Sosnoff, pro rata based on their respective Purchase Price Percentages; (ii) taking any action on behalf of such agreements. All decisions and actions the Sellers, any individual Seller or Sosnoff that may be necessary or desirable, as determined by the Representative shall be binding upon all in its sole discretion, in connection with the indemnification provisions set forth in Article IX or Article XIII and the amendment of this Agreement in accordance with Section 14.2; (iii) taking any action on behalf of the EquityholdersSellers, any individual Seller or Sosnoff that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and no Equityholder compromises with respect to the adjustments or payments contemplated by Sections 2.3 and 2.4; (iv) accepting notices on behalf of the Sellers, any individual Seller or Sosnoff in accordance with Section 14.4; (v) executing and delivering, on behalf of the Sellers, any individual Seller or Sosnoff, any notices, documents or certificates to be executed by the Sellers, any individual Seller or Sosnoff in connection with this Agreement and the transactions contemplated by this Agreement; and (vi) granting any consent or approval on behalf of the Sellers, any individual Seller or Sosnoff pursuant to this Agreement. As the representative of the Sellers, any individual Seller or Sosnoff under this Agreement and the transactions contemplated by this Agreement, the Representative shall act as the agent for each Seller and Sosnoff and shall have the right authority to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed bind each such Person in accordance with the provisions of the Representative Agreementterms hereof. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Representative In order to efficiently administer the defense and/or settlement of any claims for indemnity by a Buyer Indemnitee pursuant to Article IX hereof, Xxxx Xxxxxx is hereby agrees appointed to serve as the representative (the "REPRESENTATIVE") of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”)Shareholders. The Representative shall have the full power and authority to make make, on behalf of the Shareholders, all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party Buyer Indemnitee may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account IX hereof and otherwise to act on behalf of the Equityholders Shareholders in all respects with respect to this Agreement and the other Transaction DocumentsAgreement, including including, without limitation, the amendment or termination of such agreementsthereof. All decisions and actions by the Representative shall be binding upon all of the EquityholdersShareholders, and no Equityholder Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the EquityholdersShareholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or Representative, and any of its Affiliates Affiliates, that relate to the Representative’s 's role as such, including any claims for any action or inaction taken or not taken by such the Representative in connection herewith. (c) Each Equityholder Shareholder that accepts payment of any consideration in respect of the Merger Consideration as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its their respective execution of the Letter of Transmittal, or by the approval of this AgreementAgreement by the holders of a majority of the outstanding Common Stock of the Company, as the case may be, to have agreed that (i) the provisions of this Article VIII Section 9.05 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies any Shareholder may have in connection with the transactions contemplated by this Agreement, (ii) the remedy at law for any breach of the provisions of this Section 9.05 would be inadequate, (iii) any Shareholder shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if such Shareholder brings an action to enforce the provisions of this Section 9.05, and (iv) the provisions of this Section 9.05 shall be binding upon such Equityholder and the successors and assigns of such Equityholdereach Shareholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the their approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) Shareholders shall be deemed to constitute a waiver have waived any claims they may have or release assert, including those that may arise in the future, against the Representative and any of its Affiliates, for any action or inaction taken or not taken by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insuranceRepresentative in connection herewith. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the EquityholdersShareholders, on the other handother, be deemed to have been delivered to all EquityholdersShareholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication communications or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders Shareholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Each Stockholder hereby irrevocably appoints the Representative hereby agrees to serve as such Stockholder’s true and lawful attorney-in-fact, proxy and agent, with full powers of substitution and resubstitution, in such Stockholder’s name, place and stead, in any and all capacities, in connection with this Agreement and the representative of the Equityholders pursuant to transactions contemplated by this Section 8.8 Agreement, granting unto said attorney-in-fact, proxy and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the agent, full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim do and perform each and every act and thing requisite and necessary to be entitled done in connection with this Agreement and the transactions contemplated by this Agreement as fully to indemnity pursuant to this Article VIII all intents and purposes as such Stockholder might or Section 5.11could do in person, all decisions and actions relating to including for the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act purposes of: (i) taking any action on behalf of the Equityholders Stockholders or any individual Stockholder that may be necessary or desirable, as determined by the Representative in all respects its sole discretion, in connection with the indemnification provisions set forth in Article VII or Article XI and the amendment of this Agreement in accordance with Section 12.2; (ii) taking any action on behalf of the Stockholders or any individual Stockholder that may be necessary or desirable, as determined by the Representative in its sole discretion, in connection with negotiating or entering into settlements, resolutions and compromises with respect to the adjustments or consideration payable under this Agreement; (iii) accepting notices on behalf of the Stockholders or any individual Stockholder in accordance with Section 12.4; (iv) executing and delivering, on behalf of the Stockholders or any individual Stockholder, any notices, documents or certificates to be executed by the Stockholders or any individual Stockholder in connection with this Agreement and the other Transaction Documentstransactions contemplated by this Agreement; and (v) granting any consent or approval on behalf of the Stockholders or any individual Stockholder under this Agreement. As the representative of the Stockholders or any individual Stockholder under this Agreement, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of act as the Equityholdersrepresentative, agent and proxy for each Stockholder and shall have authority to bind each Stockholder in accordance with this Agreement, and no Equityholder Stockholder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor The Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest no duties or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as suchobligations hereunder, including any claims for any action or inaction taken or not taken by fiduciary duties, except those set forth herein, and such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein duties and obligations shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or determined solely by the approval express provisions of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative in connection with any claims for indemnity and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representative.

Appointment of the Representative. (a) Representative The Selling Members and the Accel Parties hereby agrees to serve as the representative of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially appoint and, in the form attached hereto event that the Merger is approved by the Requisite BRINC Vote, effective upon the Requisite BRINC Vote and without the further act of any Person, the other Stockholders and Optionholders shall be deemed to have appointed, the Representative as Exhibit E (each Equityholder’s true and lawful attorney-in-fact and agent to execute in the “Representative Agreement”). Representative shall have name and on behalf of such Equityholder the full power Escrow Agreement and authority to make all decisions relating with respect to the defense and/or settlement of any claims for which any a Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to under Article IX or this Article VIII or Section 5.11, all decisions X and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as with respect to disbursements from the General Indemnity Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to this Agreement and the other Transaction Documents, including the amendment or termination of such agreementsAccount. All decisions and actions by the The Representative shall be binding upon all of the Equityholdersnot have any duties or responsibilities except those expressly set forth in this Agreement, and no Equityholder implied covenants, functions, responsibilities, duties, obligations or liabilities shall have the right to object to, dissent from, protest be read into this Agreement or shall otherwise contest the same. In the event of the death, incapacity or resignation of exist against the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger Transactions as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the a Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of Article IX or this Article VIII X shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (dc) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger Transactions as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the CompanyBRLLC, BRINC, the Surviving Corporation or any of its their respective Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to Article IX or this Article VIII or Section 5.11 X or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d10.8(c) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company BRLLC, BRINC or the Surviving Corporation pursuant to the DGCL DGCL, the Delaware Limited Liability Company Act, the Operating Agreement or the Certificate of Incorporation or bylaws of the Company BRINC or any applicable policy of director and officer liability insurance. (d) The Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Equityholder, Parent, Kenexa Technology or Acquisition Sub, or any other evidence deemed by the Representative to be reliable. The Representative shall be fully justified in failing or refusing or take any action under this Agreement unless it shall have received such advice or concurrence of the Equityholders as it deems appropriate or unless it shall have been expressly indemnified to its satisfaction by the Equityholders severally against any and all liability and expense that it may incur by reason of taking or continuing to take any such action. The Representative shall in all cases be fully protected in acting, or refraining from acting, under this Agreement in accordance with a request of Equityholders who have a right to receive a majority of the Net Enterprise Value paid to the Equityholders, and such request, and any such action taken or failure to act pursuant thereto, shall be binding upon all of the Equityholders. (e) Any notice The Representative shall not be liable for any error of judgment, or communication delivered any action taken or omitted to be taken hereunder except in the case of its intentional wrongdoing for personal benefit. The Representative shall be entitled to consult with counsel of its choosing and shall be fully protected in any act taken, suffered, or permitted by it in good faith in accordance with the advice of counsel. (f) The Representative shall not be paid any fee for services to be rendered hereunder. The Representative shall be reimbursed from the Indemnity Escrow Account for up to $35,000 of all reasonable fees and expenses incurred by the Representative in performing its duties hereunder (including under Sections 2.14 and 2.17 and Articles IX and X) or under the Escrow Agreement and thereafter by the Equityholders for all such reasonable fees and expenses in excess of $35,000. (g) The Equityholders, jointly and severally, shall indemnify and hold the Representative harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs of investigation, attorneys’ fees, and disbursements that may be imposed on the Representative or incurred by the Representative in connection with the performance of its duties under this Agreement, including any litigation arising from this Agreement or the Escrow Agreement or involving their subject matter, unless such loss, liability, claim or expense shall have been determined by a court of competent jurisdiction to be a result of the Representative’s intentional wrongdoing or for personal benefit. Except in the case of fraud by an Equityholder, such Equityholder’s liability under Article IX or this Article X shall not exceed the portion of the Net Enterprise Value received by such Equityholder pursuant to this Agreement. Anything in this Agreement to the contrary notwithstanding, in no event shall the Representative be liable to the Equityholders for special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Representative has been advised of the likelihood of such damages and regardless of the form of action. (h) The Representative may resign at any time. The Representative may be removed at any time by a writing signed by Equityholders who have the right to receive a majority of the Net Enterprise Value paid or payable to the Equityholders. If the Representative or any successor shall resign, be so removed, or become unable to act as the Representative, a replacement shall promptly be appointed by a writing signed by Equityholders who have the right to receive a majority of the Net Enterprise Value paid or payable to the Equityholders. The Representative shall promptly notify Kenexa Technology and the Escrow Agent of any such resignation, removal or appointment. (i) Parent, Kenexa Technology, Acquisition Sub or Sub, the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation Escrow Agent shall be entitled to rely exclusively upon any communication or writings given or executed on the actions taken by the Representative, and that each action taken by the Representative in connection with shall be binding on each of the Equityholders as if such action had been performed by each such Equityholder. The Equityholders, jointly and severally, shall indemnify and hold harmless the Kenexa Indemnified Parties and the Escrow Agent from and against any claims for indemnity and shall not be liable in losses that any manner whatsoever for Kenexa Indemnified Party or the Escrow Agent may suffer, sustain or become subject to as the result of any claim by any of the Equityholders that an action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by Representative purportedly on behalf of the Equityholders pursuant to the authorization in connection with Article IX or this Article X is not binding on or enforceable against any claims for indemnity unless given or made through of the RepresentativeEquityholders.

Appointment of the Representative. (a) Representative hereby agrees In order to serve as administer efficiently the representative of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to determination of, amongst other items, the defense and/or settlement of any claims for which claim or liability in connection with this Agreement or the transactions contemplated hereby, the Stockholders and Optionholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments (including the Letters of Transmittal, Option Cancellation Agreements, Stockholder Consent and Support Agreement), irrevocably appoint the Representative as their agent, attorney in fact and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b) The Representative is hereby authorized (x) to take all action necessary in connection with the defense and/or settlement of any Kenexa Indemnified Party may claim or liability in connection with this Agreement or the transactions contemplated hereby, (y) to give and receive all notices required to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to given under this Agreement and the other Transaction Documentsagreements contemplated hereby to which all of the Stockholders and the Optionholders are subject, and (z) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative will deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (i) to execute and deliver all consents, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (ii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iii) to receive funds, make payments of funds (including from the Representative Reserve Fund), and give receipts for funds; (iv) to receive funds for the payment of expenses of the Stockholders and the Optionholders (including the amendment Representative Reserve Fund), to deposit such funds in such accounts as the Representative deems appropriate and apply such funds in payment for such expenses; (v) to do or termination refrain from doing any further act or deed on behalf of the Stockholders and the Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Stockholders and the Optionholders could do if personally present; and (vi) to receive service of process in connection with any claims under this Agreement. (c) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such agreements. position, the Stockholders and the Optionholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the voting power represented by the Common Shares issued and outstanding immediately prior to the Effective Time, will select another representative to fill such vacancy and such substituted representative will be deemed to be the Representative for all purposes of this Agreement. (d) All decisions and actions by the Representative shall Representative, including the defense or settlement of any claim or liability in connection with this Agreement or the transactions contemplated hereby, will be binding upon all of the EquityholdersStockholders and Optionholders, and no Equityholder shall Stockholder or Optionholder will have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Agreement. (b) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns of such Equityholder. (d) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technologythe Paying Agent, Acquisition Sub or the Surviving Corporation Escrow Agent and the other Parent Indemnified Parties will be able to rely conclusively on the instructions and decisions of the Representative shalland treat the Representative as the duty appointed representative of the Stockholders and Optionholders and any decision, act, consent or instruction of the Representative as being the decision, act, consent or instruction of each Stockholder or Optionholder, as between applicable. Parent, Kenexa Technology, Acquisition Sub the Company and the Surviving Corporation, on the one handother Parent Indemnified Parties may, and the EquityholdersEscrow Agent and the Paying Agent shall, on disregard any notice or instruction received directly from any Stockholder or Optionholder, other than the Representative. Parent and the other handParent Indemnified Parties are hereby relieved from any liability to any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Representative. Each Stockholder and Optionholder hereby agrees that for any Legal Proceeding arising under this Agreement or any other agreements ancillary hereto, such Stockholder or Optionholder, as applicable, may be deemed served legal process by registered mail to have been delivered the address set forth in Section 12.04 for the Representative (or any alternative address designated to all Equityholders. Parentthe parties in writing by the Representative), Kenexa Technology, Acquisition Sub and the Surviving Corporation that service in such manner shall be entitled to rely exclusively upon adequate and such Stockholder or Optionholder shall not assert any communication defense of claim that service in such manner was not adequate or writings given or executed by sufficient in any court in any jurisdiction. (f) All actions, decisions and instructions of the Representative in connection with will be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder will have any claims for indemnity and shall not be liable in any manner whatsoever cause of action against the Representative for any action taken or not taken in reliance upon taken, decision made or instruction given by the actions taken Representative under this Agreement, except for fraud or not taken or communications or writings given or executed willful misconduct by the Representative. Parent; (g) The provisions of this Section 12.19 are independent and severable, Kenexa Technology, Acquisition Sub are irrevocable and the Surviving Corporation shall coupled with an interest and will be entitled to disregard enforceable notwithstanding any notices rights or communications given remedies that any Stockholder or made by the Equityholders Optionholder may have in connection with the transactions contemplated by this Agreement; and (h) The provisions of this Section 12.19 will be binding upon the heirs, legal representatives, successors and assigns of each Stockholder and Optionholder, and any claims for indemnity unless given references in this Agreement to a Stockholder or made through an Optionholder or the RepresentativeStockholders or Optionholders will mean and include the successors to the rights of the Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.

Appointment of the Representative. (a) You hereby irrevocably appoint the Representative hereby agrees as your representative, attorney-in-fact and agent, with full power of substitution to serve as the representative of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially act in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power name, place and authority to make all decisions relating to the defense and/or settlement stead of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise to act on behalf of the Equityholders in all respects with respect to this Agreement and the other Transaction Documents, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of the Equityholders, and no Equityholder shall have the right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed you in accordance with the provisions terms of the Merger Agreement and to act on your behalf in any amendment of or action involving the Merger Agreement, including initiating, prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against you arising under or in connection with the Merger Agreement, the Paying Agent Agreement and Escrow Agreement or any transactions or matters related thereto, and to do or refrain from doing all such further acts and things, and to execute all such documents, as Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated hereby, including the power: (a) to execute and deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the Escrow Agreement.; and (b) Neither Parent, Kenexa Technology, Acquisition Sub nor to take all action necessary or desirable in connection with the Surviving Corporation shall have the right to object to, protest or otherwise contest waiver of any matter related condition to the procedures for action being taken obligations of HealthPocket to consummate the transactions contemplated by the Representative as between Merger Agreement, the Representative Paying Agent Agreement and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith.Escrow Agreement; and (c) Each Equityholder that accepts payment of any consideration to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in respect connection with the consummation of the Merger as transactions contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Merger Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder Paying Agent Agreement and the successors and assigns of such Equityholder.Escrow Agreement; and (d) In addition, each Equityholder that accepts payment of any consideration in respect of to give and receive all notices and communications to be given or received under the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub Paying Agent Agreement and the Surviving Corporation, on the one hand, Escrow Agreement and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative receive service of process in connection with any claims for indemnity under the Merger Agreement and shall not the transactions contemplated thereby; and (e) to take all actions that, under the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, may be liable in any manner whatsoever for any action taken by you (or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub ) and to do or refrain from doing any further act or deed on your behalf that the Representative deems necessary or appropriate in the Representative’s sole discretion relating to the subject matter of the Merger Agreement and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the Representativetransactions contemplated hereby as fully and completely as you could do if personally present.

Appointment of the Representative. (a) Representative hereby agrees In order to serve as administer efficiently the representative determination and payment of the Equityholders Merger Consideration (and any adjustment thereto pursuant to this Section 8.8 2.05 hereof) and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant or Actions related to this Article VIII Agreement, each Company Stockholder, by his, her or Section 5.11, all decisions and actions relating to the adjustment its acceptance of any portion of the Total Merger Consideration, as well as, in certain cases, through separate instruments, irrevocably appoints the Representative as his, her or its agent, attorney in fact, proxy and representative (with full power of substitution in the premises), and, by its execution hereof, the Representative xxxxxx accepts such appointment. (b) The Representative is hereby authorized (i) to take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.132.05 hereof) and the defense and/or settlement of any claims or Actions related to this Agreement, (ii) to give and receive all decisions notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Company Stockholders are subject, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (i) to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the Company Stockholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; to pay any expenses of the Company Stockholders or the Representative from the General Adjustment Escrow Account Amount (to the extent such amounts are released to the Company Stockholders) or the Representative Holdback Amount; and otherwise to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate; (ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iv) to receive funds, make payments of funds, and give receipts for funds; (v) to receive funds for the payment of expenses of the Company Stockholders (including, without limitation, the Representative Holdback Amount), to deposit such funds in such accounts as the Representative deems appropriate and to apply such funds in payment for such expenses; (vi) to do or refrain from doing any further act or deed on behalf of the Equityholders Company Stockholders that the Representative deems necessary or appropriate in all respects with respect its sole discretion relating to the subject matter of this Agreement as fully and completely as the other Transaction DocumentsCompany Stockholders could do if personally present; and (vii) to receive service of process in connection with, including the amendment and to defend and/or settle, any claims or termination Actions under this Agreement on behalf of such agreementsCompany Stockholder. (c) The Representative requires that a portion of the Merger Consideration in an amount equal to the Representative Holdback Amount be withheld by (and deposited with) the Representative, on behalf of the Company Stockholders, to satisfy potential future obligations of the Company Stockholders; provided that the portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each Company Stockholder shall be determined according to the aggregate Per Share Portions represented by such Company Stockholder’s Company Stock and Options. The Representative Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Representative Holdback Xxxxxx returned to the Company Stockholders shall be distributed to the Company Stockholders based upon the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder. (d) If the Representative needs to make any payments to Option Holders following the Closing, Parent agrees to use commercially reasonable efforts to cause the Company and its Subsidiaries to make such payments through the Company’s or such Subsidiaries’ payroll systems. (e) In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Stockholders (or, if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the voting power represented by the Common Stock issued and outstanding immediately prior to the Effective Time shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. (f) All decisions decisions, actions and actions instructions by the Representative shall be conclusive and binding upon all of the EquityholdersCompany Stockholders, and no Equityholder Company Stockholder shall have the right to object toobject, dissent fromdissent, protest or otherwise contest the same. In No Party or Company Stockholder shall have any cause of action against the event Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for Fraud by the Representative. (g) Xxxxxx and Xxxxxx Sub shall be able to rely conclusively on the instructions and decisions of the deathRepresentative as to the determination and payment of the Merger Consideration (and any adjustment thereto pursuant to Section 2.05 hereof) and any other actions required or permitted to be taken by the Representative hereunder, incapacity and no Party, Company Stockholder shall have any cause of action against Parent or resignation Merger Sub for any action taken by Parent or Merger Sub in reliance upon the written instructions or decisions of the Representative. (h) The provisions of this Section 9.17 are independent and severable, a successor Representative are irrevocable and coupled with an interest and shall be appointed enforceable notwithstanding any rights or remedies that any Company Stockholder may have in accordance connection with the provisions of the Representative transactions contemplated by this Agreement. (bi) Neither Parent, Kenexa Technology, Acquisition Sub nor the Surviving Corporation shall have the right to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith. (c) Each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the The provisions of this Article VIII Section 9.17 shall be binding upon such Equityholder the heirs, legal representatives, successors and permitted assigns of each Company Stockholder, and any references in this Agreement to a Company Stockholder shall mean and include the successors to the rights of the Company Stockholders hereunder, whether pursuant to testamentary disposition, the laws of descent and assigns of such Equityholderdistribution or otherwise. (dj) In addition, each Equityholder that accepts payment of any consideration in respect of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged All reasonable fees and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation, on the one hand, and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed expenses incurred by the Representative in connection with this Agreement shall be paid by the Company Stockholders on a pro rata basis based on the respective aggregate Per Share Portions represented by the Company Stock and Options held by each such Company Stockholder; provided that the Representative shall first make payment of such fees and expenses from the Representative Holdback Amount and the Representative shall be authorized to withhold from any claims distribution from the Adjustment Escrow Account made to the Company Stockholders any amounts reasonably anticipated to be necessary to pay for indemnity such reasonable fees and expenses in excess of the Representative Holdback Amount. (k) The Company Stockholders shall severally and not be liable jointly (in accordance with their Per Share Portions), indemnify and hold harmless the Representative from and against, compensate it for, reimburse it for and pay any manner whatsoever for any action taken and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as the Representative under this Agreement, the Escrow Agreement and the other agreements contemplated hereby (“Representative Losses”), in each case as such Representative Loss is suffered or not taken incurred; provided, that in reliance upon the actions taken or not taken or communications or writings given or executed event that it is finally adjudicated that a Representative Loss was caused by Fraud by the Representative, the Representative shall reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such Fraud. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation The Representative Losses shall be entitled satisfied first from the Representative Holdback Amount and then, to disregard any notices or communications given or made by the Equityholders extent the amount of the Representative Losses exceeds amount available to Representative Holdback Amount, from the Company Stockholders, severally and not jointly (in connection accordance with any claims for indemnity unless given or made through the Representativetheir Per Share Portions).

Appointment of the Representative. (a) The undersigned hereby irrevocably appoints the Representative hereby agrees to serve as the representative undersigned’s representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of the Equityholders pursuant to this Section 8.8 and a Representative Agreement substantially undersigned in accordance with the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment terms of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account Agreement and otherwise to act on behalf of the Equityholders undersigned in any amendment of or action involving the Merger Agreement, including initiating, prosecuting, defending, negotiating, settling or otherwise dealing with claims on behalf of or against the undersigned arising under or in connection with the Merger Agreement, the Paying Agent Agreement and Escrow Agreement or any transactions or matters related thereto, and to do or refrain from doing all respects such further acts and things, and to execute all such documents, as Representative shall deem necessary or appropriate in conjunction with respect any of the transactions contemplated hereby, including the power: (a) to this execute and deliver, and administer all matters pertaining to performance under, the Paying Agent Agreement and the other Transaction Documents, including the amendment or termination of such agreements. All decisions and actions by the Representative shall be binding upon all of the Equityholders, and no Equityholder shall have the right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation of the Representative, a successor Representative shall be appointed in accordance with the provisions of the Representative Escrow Agreement.; and (b) Neither Parent, Kenexa Technology, Acquisition Sub nor to take all action necessary or desirable in connection with the Surviving Corporation shall have the right to object to, protest or otherwise contest waiver of any matter related condition to the procedures for action being taken obligations of the Company to consummate the transactions contemplated by the Representative as between Merger Agreement, the Representative Paying Agent Agreement and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative or any of its Affiliates that relate to the Representative’s role as such, including any claims for any action or inaction taken or not taken by such Representative in connection herewith.Escrow Agreement; and (c) Each Equityholder that accepts payment of any consideration to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in respect connection with the consummation of the Merger as transactions contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Merger Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder Paying Agent Agreement and the successors and assigns of such Equityholder.Escrow Agreement; and (d) In addition, each Equityholder that accepts payment of any consideration in respect of to give and receive all notices and communications to be given or received under the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any of the respective Affiliates of the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation pursuant to the DGCL or the Certificate of Incorporation or bylaws of the Company or any applicable policy of director and officer liability insurance. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub Paying Agent Agreement and the Surviving Corporation, on the one hand, Escrow Agreement and the Equityholders, on the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled to rely exclusively upon any communication or writings given or executed by the Representative receive service of process in connection with any claims for indemnity under the Merger Agreement and shall not the transactions contemplated thereby; and (e) to take all actions that, under the Merger Agreement, the Paying Agent Agreement and the Escrow Agreement and pursuant to the transactions contemplated thereby, may be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the undersigned (or the Representative. Parent, Kenexa Technology, Acquisition Sub ) and to do or refrain from doing any further act or deed on behalf of the undersigned that the Representative deems necessary or appropriate in the Representative’s sole discretion relating to the subject matter of the Merger Agreement and the Surviving Corporation shall be entitled to disregard any notices or communications given or made by transactions contemplated hereby as fully and completely as the Equityholders in connection with any claims for indemnity unless given or made through the Representativeundersigned could do if personally present.

Appointment of the Representative. (a) Representative hereby agrees to serve Each of the TBO Shareholders irrevocably constitutes, appoints and empowers, effective from and after the date hereof, Xxxxx Xxxxxx as the representative Representative, for the benefit of the Equityholders pursuant to this Section 8.8 TBO Shareholders and a Representative Agreement substantially in the form attached hereto as Exhibit E (the “Representative Agreement”). Representative shall have the full power exclusive agent and authority to make all decisions relating to the defense and/or settlement of any claims for which any Kenexa Indemnified Party may claim to be entitled to indemnity pursuant to this Article VIII or Section 5.11, all decisions and actions relating to the adjustment of the Total Merger Consideration pursuant to Section 2.13, all decisions as to disbursements from the General Escrow Account and otherwise attorney-in-fact to act on behalf of each TBO Shareholder, with full power of substitution, and authorizes the Equityholders Representative acting for such TBO Shareholder and in such TBO Shareholder’s name, place and stead, in any and all respects capacities, to do and perform every act and thing required or permitted to be done in connection with respect and to facilitate the consummation of the transactions contemplated hereby, as fully to all intents and purposes as such TBO Shareholder might or could do in person, including, without limitation: (i) to negotiate, execute and deliver such waivers, consents and amendments (other than any written consent of the TBO Shareholders adopting this Agreement) under this Agreement and the consummation of the transactions contemplated hereby as the Representative, in its sole discretion, may deem necessary or desirable; (ii) to enforce and protect the rights and interests of the TBO Shareholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Representative believes are necessary or appropriate under this Agreement for and on behalf of the TBO Shareholders including, consenting to, compromising or settling any claims, conducting negotiations with Parent, the Surviving Company and their respective representatives regarding such claims, and, in connection therewith, to (i) assert any claim or institute any action, proceeding or investigation; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Surviving Company or any other Transaction DocumentsPerson, including or by any Governmental Authority against the amendment Representative and/or any of the TBO Shareholders, and receive process on behalf of any or termination of all TBO Shareholders in any such agreements. All decisions claim, action, proceeding or investigation and actions by compromise or settle on such terms as the Representative shall determine to be binding upon all appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (iii) file any proofs of debt, claims and petitions as the Representative may deem advisable or necessary; (iv) settle or compromise any claims asserted under this Agreement, including with respect to any Earn-Out Payment or indemnification claim; and (v) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Representative shall not have any obligation to take any such actions, and shall not have any Liability for any failure to take any such actions; (iii) to refrain from enforcing any right of the EquityholdersTBO Shareholders arising out of or under or in any manner relating to this Agreement; provided, and however, that no Equityholder shall have such failure to act on the right to object to, dissent from, protest or otherwise contest the same. In the event of the death, incapacity or resignation part of the Representative, a successor Representative except as otherwise provided in this Agreement, shall be appointed deemed a waiver of any such right or interest by the Representative or by the TBO Shareholders unless such waiver is in accordance writing signed by the waiving party or by the Representative; (iv) 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 Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the provisions transactions contemplated by this Agreement; and/or (v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Representative TBO Shareholders in connection with any matter arising under this Agreement. (b) Neither ParentThe Representative shall be entitled to receive reimbursement from, Kenexa Technologyand be indemnified by, Acquisition Sub nor the Surviving Corporation shall have the right TBO Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or failing to object to, protest or otherwise contest any matter related to the procedures for action being taken by the Representative as between the Representative and the Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation hereby waive any claims they may have or assert, including those that may arise in the future, against either the Representative exercise all or any of its Affiliates that relate the powers conferred upon the Representative hereunder, (i) the Representative shall incur no responsibility whatsoever to any TBO Shareholders by reason of any error in judgment or other act or omission performed or omitted hereunder, other than any act or failure to act which represents willful misconduct by the Representative’s role as such, including and (ii) the Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any claims for error in judgment or other act or omission of the Representative pursuant to such advice shall in no event subject the Representative to Liability to any action or inaction taken or not taken by such Representative in connection herewithTBO Shareholders. (c) Each Equityholder that accepts TBO Shareholder shall indemnify, severally and not jointly, based on such TBO Shareholder’s pro rata portion of the Parent Common Stock and Parent Preferred Stock (on an as-converted basis, without regard to any limitations on conversion set forth in the Certificate of Designations) received by it hereunder, the Representative against all Damages, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the Liability of the Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Representative to the TBO Shareholders as to the existence of a deficiency toward the payment of any consideration in respect such indemnification amount, each TBO Shareholder shall promptly deliver to the Representative full payment of his or her pro rata portion of the Merger as contemplated herein shall be deemed, by such acceptance of payment, or by his, her or its execution of the Letter of Transmittal, or by the approval of this Agreement, as the case may be, to have agreed that the provisions of this Article VIII shall be binding upon such Equityholder and the successors and assigns amount of such Equityholderdeficiency. (d) In addition, each Equityholder that accepts payment of any consideration in respect All of the Merger as contemplated herein indemnities, powers and immunities granted to the Representative under this Agreement shall be deemed, by such acceptance of payment, or by his, her or its execution of survive the Letter of Transmittal, or by the approval Effective Time and/or any termination of this Agreement. The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, as incompetency, bankruptcy or liquidation of any TBO Shareholder and (ii) shall survive the case may be, to have acknowledged and agreed that neither he, she or it nor any of his, her or its respective Affiliates will have any claims or rights to contribution or indemnity from Parent, Kenexa Technology, Acquisition Sub, the Company, the Surviving Corporation or any of its Subsidiaries or any consummation of the respective Affiliates of Merger, and any action taken by the foregoing Persons with respect to any amounts paid by any Equityholder pursuant to this Article VIII or Section 5.11 or any liabilities that such Equityholder may have for actual fraud, intentional misrepresentation or active concealment, provided, that nothing contained in this Section 8.8(d) shall be deemed to constitute a waiver or release by any Person of any rights to indemnification from the Company or the Surviving Corporation Representative pursuant to the DGCL authority granted in this Agreement shall be effective and absolutely binding on each TBO Shareholder notwithstanding any contrary action of or the Certificate of Incorporation direction from such TBO Shareholder, except for actions or bylaws omissions of the Company or any applicable policy of director and officer liability insuranceRepresentative constituting willful misconduct. (e) Any notice or communication delivered by Parent, Kenexa Technology, Acquisition Sub or the Surviving Corporation to the Representative shall, as between Parent, Kenexa Technology, Acquisition Sub Parent and the Surviving CorporationCompany shall have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement, on all of which actions or omissions shall be legally binding upon the one handTBO Shareholders. (f) Each of TBO, Merger Sub and Parent acknowledges and agrees that the Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of TBO, Merger Sub and Parent acknowledges and agrees that the Representative shall have no Liability to, and shall not be liable for any Damages of, any of TBO, Merger Sub or Parent in connection with any obligations of the EquityholdersRepresentative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, on except to the other hand, be deemed to have been delivered to all Equityholders. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation extent such Damages shall be entitled proven to rely exclusively upon any communication or writings given or executed be the direct result of willful misconduct by the Representative in connection with any claims for indemnity the performance of his obligations hereunder. (g) Each TBO Shareholder shall acknowledge and shall not be liable consent to the provisions of this Section 10.17 in any manner whatsoever for any action taken the Letter of Transmittal executed and delivered by him, her or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Representative. Parent, Kenexa Technology, Acquisition Sub and the Surviving Corporation shall be entitled it pursuant to disregard any notices or communications given or made by the Equityholders in connection with any claims for indemnity unless given or made through the RepresentativeArticle III.