Common use of Authorization of the Seller Representative Clause in Contracts

Authorization of the Seller Representative. (a) The Seller and each Seller Stockholder appoints Xxxxxx X. Xxxxx, Xx. as the Seller Representative, and Xxxxxx X. Xxxxx, Xx. accepts the appointment as the Seller Representative to serve as the Seller’s, each Seller Stockholder’s and Adaplis’ agent and attorney-in-fact for and on behalf of the Seller, each Seller Stockholder and Adaplis in connection with, and to facilitate the consummation of the transactions contemplated under, this Agreement, the Ancillary Agreements and any other related transaction documents, and in connection with the activities to be performed on behalf of the Seller, any Seller Stockholder and Adaplis under this Agreement, the Ancillary Agreements and any other related transaction documents for the purposes and with the powers and authority set forth in this Article X, which will include the full power and authority: (i) to take such actions and to execute and deliver such amendments, modifications, waivers, terminations and consents in connection with this Agreement, the Ancillary Agreements and the other transaction documents and the consummation of the transactions contemplated under this Agreement, the Ancillary Agreements and any other related transaction documents as the Seller Representative, in his reasonable discretion, deems necessary or desirable to give effect to the intentions of this Agreement, the Ancillary Agreements and the other transaction documents; (ii) as the agent of the Seller, each Seller Stockholder and Adaplis, to enforce and protect the rights and interests of the Seller, each Seller Stockholder and Adaplis and to enforce and protect the rights and interests of the Seller Representative arising out of or under or in any manner relating to this Agreement, the Ancillary Agreements and each other transaction document and, in connection therewith, to: (A) resolve all questions, disputes, conflicts and controversies concerning (1) the payment of any Escrow Amounts under this Agreement or the Lenexa Purchase Agreement, (2) indemnification claims pursuant to Article VIII and Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement, and (3) the Estimated Closing Schedule, the Actual Closing Schedule and Post-Closing Purchase Price Adjustment (or similar documents or adjustments) in this Agreement and the Lenexa Purchase Agreement; (B) employ such agents, consultants and professionals, to delegate authority to his agents, to take such actions and to execute such documents on behalf of the Seller, each Seller Stockholder or Adaplis in connection with Article VIII and Article IX of this Agreement and Article VIII of the Lenexa Purchase Agreement as the Seller Representative, in his reasonable discretion, deems to be in the best interest of the Seller, each Seller Stockholder or Adaplis, as applicable; (C) investigate, defend, contest or litigate any action initiated by an Indemnified Party or Tax Indemnitee, or any other Person, against the Seller, each Seller Stockholder or Adaplis, as applicable, and receive process on behalf of the Seller, each Seller Stockholder or Adaplis, as applicable, in any such claim, action or investigation and compromise or settle on such terms as the Seller Representative determines to be appropriate, give receipts, releases and discharges on behalf of the Seller, each Seller Stockholder or Adaplis, as applicable, with respect to any such claim, action or investigation; (D) file any proofs, debts, claims and petitions as the Seller Representative may deem advisable or necessary; (E) settle or compromise any Contest or Third Party Claims (pursuant to the terms of this Agreement) asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; (F) assume, on behalf of the Seller, Adaplis or any Seller Stockholder, the defense of any Contest or Third Party Claim (pursuant to the terms of this Agreement or the Lenexa Purchase Agreement, as applicable) that is the basis of any claim asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; (G) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Contests or Third Party Claims, actions or investigations, it being understood that the Seller Representative will not have any obligation to take any such actions, and will not have liability for any failure to take such any action; and (H) execute any Joint Written Instruction; (iii) to enforce payment of any other amounts payable to the Seller, any Seller Stockholder or Adaplis, in each case on behalf of the Seller, any Seller Stockholder or Adaplis, as applicable, in the name of the Seller Representative; (iv) to waive or refrain from enforcing any right of the Seller, any Seller Stockholder, Adaplis and/or the Seller Representative arising out of or under or in any manner relating to this Agreement, the Ancillary Agreements or any other transaction document; and (v) 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 Seller Representative, in his sole and absolute direction, considers necessary or proper or convenient in connection with or to carry out the activities described above in paragraphs (i) through (iv) and the transactions contemplated under this Agreement, the Ancillary Agreements or any other related transaction documents. (b) Notwithstanding anything to the contrary contained in this Agreement, each of the Buyer and the Lenexa Buyer Sub is entitled to rely exclusively upon any and all communications of the Seller Representative under this Agreement or the Lenexa Purchase Agreement as the communications of the Seller, each Seller Stockholder or Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub (i) need not be concerned with the authority of the Seller Representative to act on behalf of the Seller, each Seller Stockholder or Adaplis and (ii) will not be held liable or accountable by the Seller, any Seller Stockholder, or Adaplis or any other Person in any manner for any act or omission of, or any act or omission of the Buyer and/or the Lenexa Buyer Sub in accordance with or in reliance upon any act or omission of the Seller Representative. Any decision, act, consent or instruction of the Seller Representative shall constitute a decision, act, consent or instruction of the Seller, each Seller Stockholder or Adaplis, as applicable, and shall be final, binding and conclusive upon each of the Seller, each Seller Stockholder and Adaplis, and each of the Buyer and the Lenexa Buyer Sub and their respective Representatives may fully rely upon any decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of the Seller, each Seller Stockholder and Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub are relieved from any Claim of the Seller, any Seller Stockholder, Adaplis and any Affiliate or Related Party of the Seller, Adaplis or any Seller Stockholder, which the Seller, each Seller Stockholder and Adaplis hereby waives, or any other Person, for any acts taken in accordance with such decision, act, consent or instruction of the Seller Representative. (c) Notwithstanding anything to the contrary contained in this Agreement, the Seller, each Seller Stockholder, and the Sellers Representative acknowledge and agree that (i) except as and to the extent expressly provided in this Agreement, the Seller Representative may not enter into or grant any amendments, modifications, waivers or consents unless such amendments, modifications, waivers or consents affect each Seller Stockholder consistently and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that affects any Seller Stockholder in a manner that is adverse in relation to the other Seller Stockholders must be executed by such adversely-affected Seller Stockholder to be binding on such Seller Stockholder. (d) Each of the Seller, each Seller Stockholder and Adaplis makes, constitutes and appoints the Seller Representative such Person’s true and lawful attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Seller Representative provided for in this Section 10.1. The grant of authority provided for in this Section 10.1(d) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and is irrevocable and will survive the death, incompetency, bankruptcy or liquidation of the Seller, any Seller Stockholder or Adaplis and will be binding on any successor thereto, and will survive the payment of all or any portion of the Escrow Amounts. All decisions by the Seller Representative will constitute a decision the Seller, each Seller Stockholder or Adaplis, as applicable, and shall be final, binding and conclusive upon the Seller, each Seller Stockholder or Adaplis, as applicable, and none of the Seller, any Seller Stockholder nor Adaplis will have any right to object, dissent, protest, or otherwise contest the Seller Representative’s decisions. (e) If Xxxxxx X. Xxxxx, Xx. becomes unable to perform his responsibilities as the Seller Representative under this Agreement or resigns from such position, Xxxxxx Xxxxx will automatically be appointed to replace Xxxxxx X. Xxxxx, Xx. as the Seller Representative. Anything heretofore notwithstanding, so long as Xxxxxx X. Xxxxx, Xx. remains employed as Chief Executive Officer of the Buyer Sub, Xxxxxx X. Xxxxx, Xx. shall not resign from such position without the Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any former Seller Representative will be entitled to the same indemnification rights and protection from liability provided to a then-serving Seller Representative with regard to any actions taken while serving as the Seller Representative. (f) For purposes of obtaining consent from any individual appointed as the Seller Representative, the Buyer may rely on documents executed in multiple counterparts, the signatures of each individual appointed as the Seller Representative need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile or portable document format (.pdf) is as effective as executing and delivering such signature page in the presence of the other Parties to this Agreement.

Authorization of the Seller Representative. (a) The Seller Representative is hereby appointed, authorized and each Seller Stockholder appoints Xxxxxx X. Xxxxx, Xx. empowered to act as the Seller Representative, and Xxxxxx X. Xxxxxfor the benefit of each Seller Party, Xx. accepts the appointment as the Seller Representative to serve as the Seller’s, each Seller Stockholder’s and Adaplis’ exclusive agent and attorney-in-fact for and to act on behalf of the Seller, each Seller Stockholder and Adaplis Party, in connection with, with and to facilitate the consummation of the transactions contemplated under, this AgreementTransactions. In furtherance (and not in limitation) of the foregoing, the Ancillary Agreements Seller Representative has the power and any other related transaction documents, authority to: (i) waive one or more conditions set forth in Section 7.1 and in connection with Section 7.3 that is for the activities to be performed on behalf benefit of the Seller, Seller Parties or the Acquired Companies; (ii) give and receive any Seller Stockholder and Adaplis written notice or instruction permitted or required under this Agreement, the Escrow Agreement or any other Ancillary Agreements Document by the Seller Representative or any Acquired Company, including providing payment instructions to the Paying Agent and/or Escrow Agent under Section 2.3(c), Section 2.4 or Section 8.2(c), as applicable, and accounting for all fees, expenses, distributions and payments in connection therewith; (iii) take any actions required or otherwise contemplated to be taken by the Seller Representative, any Seller Party or any Acquired Company under this Agreement; (iv) execute and deliver the Escrow Agreement and any other related transaction documents for the purposes and with the powers and authority set forth in this Article X, which will include the full power and authority:Ancillary Document; (iv) agree to take such actions and amendments or modifications to execute and deliver such amendments, modifications, waivers, terminations and consents in connection with this Agreement, the Ancillary Agreements and the other transaction documents and the consummation of the transactions contemplated under this Agreement, the Ancillary Agreements and Escrow Agreement or any other related transaction documents Ancillary Document as the Seller Representative, in his reasonable its sole discretion, deems necessary determines to be desirable; provided, that, in the event the express terms of such amendments or desirable modification (A) adversely and disproportionately affect the rights or obligations of any Seller Party as compared to give effect any other Seller Parties or (B) modify any payment reasonably expected to the intentions of this Agreementbe made to or from any Seller Party, the Ancillary Agreements and the other transaction documentsthen such Seller Party shall provide its prior written consent for any such action to be taken; (iivi) as enforce and protect the agent rights and interests of the Seller, each Seller Stockholder Party (including Seller Representative, in its capacity as a Seller) and Adaplis, to enforce and protect the rights and interests of the Seller Representative, in each case, arising out of or under or in any manner relating to this Agreement, the Escrow Agreement, any other Ancillary Document or the Transactions, and to take any and all actions which the Seller Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement or any other Ancillary Document for and on behalf of each Seller Party, including asserting or pursuing any claim, action, proceeding or investigation arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Ancillary Document (a “Claim”) against Buyer or its Affiliates, consenting to, compromising or settling any such Claims, conducting negotiations with Buyer or its Affiliates or their respective representatives regarding such Claims, and, in connection therewith, to: (A) assert or institute any Claim; (B) receive and accept services of legal process in connection with any Claim; (C) investigate, defend, contest or litigate any Claim initiated by Buyer or its Affiliates or any other Person, or by any federal, state or local Governmental Entity against any Seller, each and receive process on behalf of any or all of Sellers in any such Claim and compromise or settle any such Claim on such terms as the Seller Stockholder Representative determines to be appropriate, and Adaplis give receipts, releases and discharges with respect to enforce any such Claim; (D) file any proofs of debt, claims and protect petitions in connection with any such Claim as the rights Seller Representative may deem advisable or necessary; and interests (E) file and prosecute appeals from any decision, judgment or award rendered with respect to any such Claims, it being understood that the Seller Representative (in its capacity as such) will not have any obligation to take any such actions, and, subject to Section 9.2, will not have any liability to any Seller Party for any failure to take any such actions; (vii) refrain from enforcing any right of any Seller Party or the Seller Representative arising out of or under or in any manner relating to this Agreement, the Ancillary Agreements and each other transaction document and, in connection therewith, to: (A) resolve all questions, disputes, conflicts and controversies concerning (1) the payment of any Escrow Amounts under this Agreement or any other Ancillary Document; provided, however, that no such failure to act on the Lenexa Purchase Agreement, (2) indemnification claims pursuant to Article VIII and Article IX part of this Agreement or Article VIII of the Lenexa Purchase Agreement, and (3) the Estimated Closing Schedule, the Actual Closing Schedule and Post-Closing Purchase Price Adjustment (or similar documents or adjustments) in this Agreement and the Lenexa Purchase Agreement; (B) employ such agents, consultants and professionals, to delegate authority to his agents, to take such actions and to execute such documents on behalf of the Seller, each Seller Stockholder or Adaplis in connection with Article VIII and Article IX of this Agreement and Article VIII of the Lenexa Purchase Agreement as the Seller Representative, except as otherwise provided in his reasonable discretionthis Agreement, deems to be in the best interest of the Seller, each Seller Stockholder or Adaplis, as applicable; (C) investigate, defend, contest or litigate any action initiated by an Indemnified Party or Tax Indemnitee, Escrow Agreement or any other Person, against the Seller, each Seller Stockholder or Adaplis, as applicable, and receive process on behalf Ancillary Document shall be deemed a waiver of the Seller, each Seller Stockholder or Adaplis, as applicable, in any such claim, action right or investigation and compromise or settle on such terms as interest by the Seller Representative determines to be appropriate, give receipts, releases and discharges on behalf of the Seller, each or by such Seller Stockholder or Adaplis, as applicable, with respect to any Party unless such claim, action or investigation; (D) file any proofs, debts, claims and petitions as the Seller Representative may deem advisable or necessary; (E) settle or compromise any Contest or Third Party Claims (pursuant to the terms of this Agreement) asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; (F) assume, on behalf of the Seller, Adaplis or any Seller Stockholder, the defense of any Contest or Third Party Claim (pursuant to the terms of this Agreement or the Lenexa Purchase Agreement, as applicable) that waiver is the basis of any claim asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; (G) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Contests or Third Party Claims, actions or investigations, it being understood that the Seller Representative will not have any obligation to take any such actions, and will not have liability for any failure to take such any action; and (H) execute any Joint Written Instruction; (iii) to enforce payment of any other amounts payable to the Seller, any Seller Stockholder or Adaplis, in each case on behalf of the Seller, any Seller Stockholder or Adaplis, as applicable, in the name of writing signed by the Seller Representative; (ivviii) to waive or refrain from enforcing any right of the Sellerengage counsel, any Seller Stockholder, Adaplis and/or accountants and other representatives in connection with carrying out its duties as the Seller Representative arising out of or under or in any manner relating to this Agreement, the Ancillary Agreements or any other transaction documentRepresentative; and (vix) 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 Seller Representative, in his its sole and absolute directiondiscretion, considers necessary or proper or convenient may consider desirable in connection with or to carry out the activities described above in paragraphs (i) through (iv) and the transactions contemplated under this Agreement, the Ancillary Agreements or any other related transaction documentsTransactions. (b) Notwithstanding anything Except as expressly set forth herein, the Seller Representative will not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the contrary contained payment of all its out-of-pocket expenses reasonably incurred as Seller Representative. Each Seller Party shall pay on a pro rata basis all expenses and other charges and liabilities (including taxes) incurred by the Seller Representative or its Affiliates, including the fees and expenses of outside legal counsel, accountants and other advisors, in this Agreement, each connection with the Transactions. (c) All of the Buyer indemnities, immunities and the Lenexa Buyer Sub is entitled powers granted to rely exclusively upon any and all communications of the Seller Representative under this Agreement or will survive the Lenexa Purchase Agreement as the communications of the Seller, each Seller Stockholder or Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub (i) need not be concerned with the authority of the Seller Representative to act on behalf of the Seller, each Seller Stockholder or Adaplis and (ii) will not be held liable or accountable by the Seller, any Seller Stockholder, or Adaplis Closing Date or any other Person in any manner for any act or omission of, or any act or omission termination of the Buyer and/or the Lenexa Buyer Sub in accordance with or in reliance upon any act or omission of the Seller Representative. Any decision, act, consent or instruction of the Seller Representative shall constitute a decision, act, consent or instruction of the Seller, each Seller Stockholder or Adaplis, as applicable, and shall be final, binding and conclusive upon each of the Seller, each Seller Stockholder and Adaplis, and each of the Buyer and the Lenexa Buyer Sub and their respective Representatives may fully rely upon any decision, act, consent or instruction of the Seller Representative as being the decision, act, consent or instruction of the Seller, each Seller Stockholder and Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub are relieved from any Claim of the Seller, any Seller Stockholder, Adaplis and any Affiliate or Related Party of the Seller, Adaplis or any Seller Stockholder, which the Seller, each Seller Stockholder and Adaplis hereby waives, or any other Person, for any acts taken in accordance with such decision, act, consent or instruction of the Seller Representative. (c) Notwithstanding anything to the contrary contained in this Agreement, the Seller, each Seller Stockholder, and the Sellers Representative acknowledge and agree that (i) except as and to the extent expressly provided in this Agreement, the Seller Representative may not enter into Escrow Agreement or grant any amendments, modifications, waivers or consents unless such amendments, modifications, waivers or consents affect each Seller Stockholder consistently and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that affects any Seller Stockholder in a manner that is adverse in relation to the other Seller Stockholders must be executed by such adversely-affected Seller Stockholder to be binding on such Seller StockholderAncillary Document. (d) Each of the Seller, each Seller Stockholder and Adaplis makes, constitutes and appoints the Seller Representative such Person’s true and lawful attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Seller Representative provided for in this Section 10.1. The grant of authority provided for in this Section 10.1(dherein (i) is coupled with an interest and is being granted, in part, as an inducement to the Parties to enter into this Agreement and is irrevocable and will survive survives the death, incompetency, bankruptcy or liquidation of the Seller, any Seller Stockholder or Adaplis Party, (ii) will survive the consummation of the Transactions, and will (iii) shall be binding on any successor thereto, and will survive the payment of all or any portion of the Escrow Amounts. All decisions by the Seller Representative will constitute a decision the Seller, each Seller Stockholder or AdaplisParty’s successors, as applicable, heirs and shall be final, binding and conclusive upon the Seller, each Seller Stockholder or Adaplis, as applicable, and none of the Seller, any Seller Stockholder nor Adaplis will have any right to object, dissent, protest, or otherwise contest the Seller Representative’s decisionsassigns. (e) If Xxxxxx X. Xxxxx, Xx. becomes unable Each Buyer Party shall have the right to perform his responsibilities as conclusively rely (without further inquiry or investigation) upon all actions taken (including any documents delivered) or omitted to be taken by the Seller Representative under this Agreement or resigns from such position, Xxxxxx Xxxxx will automatically be appointed to replace Xxxxxx X. Xxxxx, Xx. in its capacity as the Seller Representative. Anything heretofore notwithstanding, so long as Xxxxxx X. Xxxxx, Xx. remains employed as Chief Executive Officer of the Buyer Sub, Xxxxxx X. Xxxxx, Xx. shall not resign from such position without the Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any former Seller Representative will be entitled to the same indemnification rights and protection from liability provided to a then-serving Seller Representative with regard to any actions taken while serving as the Seller Representative. (f) For purposes of obtaining consent from any individual appointed as the Seller Representative, the Buyer may rely on documents executed in multiple counterparts, the signatures representative of each individual appointed as the Seller Representative need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile or portable document format (.pdf) is as effective as executing and delivering such signature page in the presence of the other Parties Party pursuant to this Agreement, the Escrow Agreement or any other Ancillary Document, all of which actions and omissions shall be legally binding upon each Seller Party.

Authorization of the Seller Representative. (a) The Seller Each Seller, by his, her or its acceptance of the Purchase Price, hereby appoints, authorizes and each Seller Stockholder appoints Xxxxxx X. Xxxxx, Xx. as the Seller Representative, and Xxxxxx X. Xxxxx, Xx. accepts the appointment as empowers the Seller Representative to serve act as the Seller’s, each Seller Stockholder’s and Adaplis’ agent and attorney-in-fact for and on behalf of the Seller, each Seller Stockholder and Adaplis in connection with, and to facilitate the consummation of the transactions contemplated under, this Agreement, the Ancillary Agreements and any other related transaction documents, and in connection with the activities to be performed on behalf of the Seller, any Seller Stockholder and Adaplis under this Agreement, the Ancillary Agreements and any other related transaction documents Sellers for the purposes and with the powers and authority hereinafter set forth in this Article XXI and in the Escrow Agreement, which will shall include the full power and authority: (ia) to take such actions and to execute and deliver the Escrow Agreement (with such amendments, modifications, waivers, terminations and consents in connection with this Agreement, the Ancillary Agreements and the other transaction documents and the consummation of the transactions contemplated under this Agreement, the Ancillary Agreements and any other related transaction documents modifications or changes thereto as to which the Seller Representative, in his its reasonable discretion, deems necessary or desirable to give effect to the intentions of this Agreement, the Ancillary Agreements and the other transaction documentsshall have consented to); (iib) as the agent of the Seller, each Seller Stockholder and AdaplisRepresentative, to enforce and protect the rights and interests of the Seller, each Seller Stockholder and Adaplis and to enforce and protect the rights and interests of the Seller Representative Sellers arising out of or under or in any manner relating to this Agreement, Agreement and the Ancillary Escrow Agreements and each other transaction document and, in connection therewith, to: to (Ai) resolve all questions, disputes, conflicts and controversies concerning (1A) the payment determination of any Escrow Amounts under this Agreement or the Lenexa Purchase Agreement, (2) indemnification claims amounts pursuant to Article VIII and Article IX of this Agreement or Article VIII of the Lenexa Purchase AgreementII, (B) matters relating to Taxes pursuant to Section 6.03 and (3C) calculations pursuant to the Estimated Closing Schedule, the Actual Closing Schedule and Post-Closing Purchase Price Adjustment Waterfall; (or similar documents or adjustments) in this Agreement and the Lenexa Purchase Agreement; (Bii) employ such agents, consultants and professionals, to delegate authority to his its agents, to take such actions and to execute such documents on behalf of the Seller, each Seller Stockholder or Adaplis Sellers in connection with Article VIII and Article IX of this Agreement II and Article VIII of the Lenexa Purchase Agreement as the Seller Representative, in his its reasonable discretion, deems to be in the best interest of the SellerSellers; (iii) assert or institute any claim, each Seller Stockholder action, proceeding or Adaplis, as applicable; investigation pursuant to Article VIII; (Civ) investigate, defend, contest or litigate any action claim, action, proceeding or investigation initiated by an Indemnified Party or Tax IndemniteeBuyer, or any other Person, against the Seller, each Seller Stockholder or Adaplis, as applicableall Sellers, and receive process on behalf of the Seller, each Seller Stockholder or Adaplis, as applicable, all Sellers in any such claim, action action, proceeding or investigation and compromise or settle on such terms as the Seller Representative determines shall determine to be appropriate, give receipts, releases and discharges on behalf of the Seller, each Seller Stockholder or Adaplis, as applicable, all Sellers with respect to any such claim, action action, proceeding or investigation; investigation pursuant to Article VIII (Dv) file any proofs, debts, claims and petitions as the Seller Representative may deem advisable or necessary; ; (Evi) prepare and file any Tax Returns; (vii) settle or compromise any Contest or Third Party Claims (pursuant to the terms of this Agreement) claims asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; VIII; and (F) assume, on behalf of the Seller, Adaplis or any Seller Stockholder, the defense of any Contest or Third Party Claim (pursuant to the terms of this Agreement or the Lenexa Purchase Agreement, as applicable) that is the basis of any claim asserted under Article VIII or Article IX of this Agreement or Article VIII of the Lenexa Purchase Agreement; (Gviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Contests claims, actions, proceedings or Third Party Claims, actions or investigationsinvestigations pursuant to Article VIII, it being understood that the Seller Representative will shall not have any obligation to take any such actions, and will shall not have liability for any failure to take such any action; (c) to authorize and cause to be paid out of the Escrow Amount the full amount of any Closing Working Capital Deficiency or any indemnification claims under Article VIII; and (H) execute any Joint Written Instruction; (iii) to enforce payment of any other amounts payable to the Seller, any Seller Stockholder or Adaplis, in each case on behalf of the Seller, any Seller Stockholder or Adaplis, as applicable, in the name of the Seller Representative; (iv) to waive or refrain from enforcing any right of the Seller, any Seller Stockholder, Adaplis and/or the Seller Representative arising out of or under or in any manner relating to this Agreement, the Ancillary Agreements or any other transaction document; and (vd) 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 Seller Representative, in his its sole and absolute direction, considers may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraph (a) above in paragraphs (i) through (iv) and the transactions contemplated under by this Agreement and the Escrow Agreement, the Ancillary Agreements or any other related transaction documents. (be) Notwithstanding anything to the contrary contained in this Agreement, each of the Buyer and the Lenexa Buyer Sub is Company after the Closing shall be entitled to rely exclusively upon any and all the communications of the Seller Representative under this Agreement or Representative, but only as it relates to the Lenexa Purchase Agreement foregoing, as the communications of Sellers. Neither Buyer nor the Seller, each Seller Stockholder or Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub Company (ia) need not be concerned with the authority of the Seller Representative to act on behalf of the Sellerall Sellers hereunder, each Seller Stockholder or Adaplis and (iib) will not shall be held liable or accountable by the Seller, any Seller Stockholder, or Adaplis or any other Person in any manner for any act or omission of, or any act or omission of the Buyer and/or the Lenexa Buyer Sub in accordance with or in reliance upon any act or omission of the Seller Representative. Any decision, act, consent or instruction of the Seller Representative in such capacity. In the event that any Seller commences any Action arising out of, relating to or in connection with the non-fulfillment or breach of any covenant, agreement or obligation required to be performed by the Seller Representative in its capacity as such and for the benefit of Sellers, then the Seller Representative shall constitute a decision, act, consent or instruction of the Seller, each Seller Stockholder or Adaplis, as applicableindemnify Buyer against, and shall be finalhold Buyer harmless from and against, binding any and conclusive upon each all Losses incurred or sustained by, or imposed upon, Buyer based upon, arising out of, with respect to or by reason of the Seller, each Seller Stockholder and Adaplis, and each of the such Action. Buyer and the Lenexa Buyer Sub and their respective Representatives may fully rely upon any decision, act, consent or instruction of agrees that the Seller Representative as being shall have the decision, act, right to control the defense of any Action described in the immediately preceding sentence. (f) The agency established hereby may be changed from time to time upon not less than five days’ prior written notice to Buyer by the written consent or instruction of Sellers that held a majority of the Seller, each Membership Interests prior to the Closing. The Seller Stockholder and Adaplis, as applicable. Each of the Buyer and the Lenexa Buyer Sub are relieved from any Claim of the Seller, any Seller Stockholder, Adaplis and any Affiliate or Related Party of the Seller, Adaplis or any Seller Stockholder, which the Seller, each Seller Stockholder and Adaplis hereby waivesRepresentative, or any other Personsuccessor hereafter appointed, for may resign at any acts taken in accordance time by written notice to the Sellers (with such decision, act, a copy to Buyer). A successor Seller Representative will be named by the written consent or instruction of Sellers holding a majority of the Membership Interests prior to the Closing. All power, authority, rights and privileges conferred in this Agreement to Highlander Partners L.P. will apply to any successor Seller Representative. (cg) Notwithstanding anything to the contrary contained in this Agreement, the Seller, each Seller Stockholder, and the Sellers Representative acknowledge and agree that (i) except as and to the extent expressly provided in this Agreement, the Seller Representative may not enter into or grant any amendments, modifications, waivers or consents unless such amendments, modifications, waivers or consents affect each Seller Stockholder consistently and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that affects any Seller Stockholder in a manner that is adverse in relation to the other Seller Stockholders must be executed by such adversely-affected Seller Stockholder to be binding on such Seller Stockholder. (d) Each of the Seller, each Seller Stockholder and Adaplis makes, constitutes and appoints the Seller Representative such Person’s true and lawful attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Seller Representative provided for in this Section 10.1. The grant of authority provided for in this Section 10.1(d) 11.01 is coupled with an interest and is being granted, in part, as an inducement to the Parties Company, Sellers and Buyer to enter into this Agreement and is shall be irrevocable and will survive the death, incompetency, bankruptcy or liquidation of the Seller, any Seller Stockholder or Adaplis and will shall be binding on any successor thereto, and will survive the payment of all or any portion of the Escrow Amounts. All decisions by the Seller Representative will constitute a decision the Seller, each Seller Stockholder or Adaplis, as applicable, and shall be final, binding and conclusive upon the Seller, each Seller Stockholder or Adaplis, as applicable, and none of the Seller, any Seller Stockholder nor Adaplis will have any right to object, dissent, protest, or otherwise contest the Seller Representative’s decisions. (e) If Xxxxxx X. Xxxxx, Xx. becomes unable to perform his responsibilities as the Seller Representative under this Agreement or resigns from such position, Xxxxxx Xxxxx will automatically be appointed to replace Xxxxxx X. Xxxxx, Xx. as the Seller Representative. Anything heretofore notwithstanding, so long as Xxxxxx X. Xxxxx, Xx. remains employed as Chief Executive Officer of the Buyer Sub, Xxxxxx X. Xxxxx, Xx. shall not resign from such position without the Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any former Seller Representative will be entitled to the same indemnification rights and protection from liability provided to a then-serving Seller Representative with regard to any actions taken while serving as the Seller Representative. (f) For purposes of obtaining consent from any individual appointed as the Seller Representative, the Buyer may rely on documents executed in multiple counterparts, the signatures of each individual appointed as the Seller Representative need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile or portable document format (.pdf) is as effective as executing and delivering such signature page in the presence of the other Parties to this Agreement.