Common use of Authorization of the Stockholders’ Representative Clause in Contracts

Authorization of the Stockholders’ Representative. (a) Xxxx Xxxxx (the “Stockholders’ Representative”) (and each successor appointed in accordance with Section 7.3) hereby is appointed, authorized, and empowered to act, on behalf of each Stockholder, in connection with, and to facilitate the consummation of, the Transactions and in connection with the activities to be performed on the Stockholders’ behalf under this Agreement, for the purposes and with the powers and authority set forth in this Article VII, which will include the power and authority: (i) to execute and deliver the Promissory Note (with such modifications or changes therein as to which the Stockholders’ Representative, in its reasonable discretion, will have consented to) and to agree to such amendments or modifications thereto as the Stockholders’ Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in this Article VII; (ii) to execute and deliver any documents in connection with the refinancing or modification to Parent’s existing Senior Debt Documents in compliance with Sellers’ obligations under this Agreement and the Promissory Note; (iii) to direct Parent to distribute amounts payable under the Promissory Note as necessary to satisfy obligations of the Sellers; (iv) to execute and deliver such amendments, waivers and consents in connection with this Agreement and the Transactions as the Stockholders’ Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement; (v) as the Stockholder’s Representative, to enforce and protect the Stockholders’ rights and interests and to enforce and protect the Stockholders’ rights and interests arising out of or under or in any manner relating to this Agreement and the Promissory Note (including in connection with any claims related to the Transactions) and, in connection therewith, to (A) assert any claim or institute any Action, (B) investigate, defend, contest or litigate any Action, initiated by any Indemnified Party, or any other Person, against the Stockholders, and receive process on behalf of each Stockholder in any such Action and compromise or settle on such terms as the Stockholders’ Representative will determine to be appropriate, give receipts, releases and discharges on behalf of all or any Stockholders with respect to any such Action, (C) file any proofs, debts, claims and petitions as the Stockholders’ Representative may deem advisable or necessary, (D) settle or compromise any claims related to the Transactions, (E) assume, on each Stockholder’s behalf, the defense of any claims related to the Transactions, and (F) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Actions, it being understood that the Stockholders’ Representative will not have any obligation to take any such actions, and will not have Liability for any failure to take any such action; (vi) to make, execute, acknowledge and deliver all such other Contracts, 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 Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in Section 7.1(a)(i) through (vi) and the Transactions. (b) The grant of authority provided for in this Section 7.1: (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquired Entities and Parent to enter into this Agreement and to the Stockholders to vote in favor of the Merger, and will be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Stockholder and will be binding on any successor thereto; (ii) subject to Section 7.3, may be exercised by the Stockholders’ Representative acting by signing as Stockholders’ Representative of any Stockholder. (c) Each Seller, receiving a Note Participation, acknowledges and agrees that the Stockholders’ Representative is hereby appointed to serve as such Seller’s Nominee pursuant to the terms of the Promissory Note and acknowledges and agrees that Parent will report all interest amounts attributable to Seller’s respective interest in the Promissory Note to the Internal Revenue Service (“IRS”) on Form 1099. Each Seller shall be solely responsible for (i) paying all Taxes required to be paid in connection with any amounts allocated and paid to such Seller under the Promissory Note and (ii) reporting such interest to the IRS in accordance with the Form 1099 provided by Parent. Each Seller, receiving a Note Participation, shall provide Parent with such Seller’s tax identification number and such other information as Parent may request for the purpose of completing and reporting interest income under the Promissory Note.

Authorization of the Stockholders’ Representative. (a) Xxxx Xxxxx (the “The Stockholders’ Representative”) (and each successor appointed in accordance with Section 7.3) Representative hereby is appointed, authorized, authorized and empowered to act, on behalf act as the agent of each Stockholder, the Stockholders in connection with, and to facilitate the consummation of, of the Transactions and the other Transaction Documents, and in connection with the activities to be performed on behalf of the Stockholders’ behalf Stockholders under this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth in this Article VIISection 14.1 and in the Escrow Agreement, which will shall include the full power and authority: (ia) to execute and deliver the Promissory Note Escrow Agreement (with such modifications or changes therein thereto as to which the Stockholders’ Representative, in its reasonable discretion, will shall have consented to) and to agree to such amendments or modifications thereto as the Stockholders’ Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the matters set forth in Article XI and this Article VIIXIV; (iib) to execute take such actions, including the disbursement of each Stockholder’s portion of the Closing Cash Date Merger Consideration and deliver any documents other amounts payable by the Stockholders’ Representative to the Stockholders in connection accordance with the refinancing or modification to Parent’s existing Senior Debt Documents in compliance with Sellers’ obligations under this Agreement and the Promissory Note; (iii) to direct Parent to distribute amounts payable under the Promissory Note as necessary to satisfy obligations Direction Letter, for and on behalf of the Sellers; (iv) Stockholders and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other Transaction Documents and the consummation of the Transactions and thereby as the Stockholders’ Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this AgreementAgreement and the other Transaction Documents; (vc) as the Stockholder’s RepresentativeStockholders’ Representative of the Stockholders, to enforce and protect the Stockholders’ rights and interests of the Stockholders and to enforce and protect the Stockholders’ rights and interests of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement and the Promissory Note (including in connection with any claims related to the Transactions) each other Transaction Document and, in connection therewith, to (i) resolve all questions, disputes, conflicts and controversies concerning (A) the determination of any amounts pursuant to Article IV and (B) indemnification claims pursuant to Article XI; (ii) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Stockholders in connection with Article IV and Article XI and the Escrow Agreement as the Stockholders’ Representative, in its reasonable discretion, deems to be in the best interest of the Stockholders; (iii) assert any claim or institute any Actionclaim, action, proceeding or investigation; (Biv) investigate, defend, contest or litigate any Actionclaim, action, proceeding or investigation initiated by any Indemnified Partythe Parent, or any other Person, against the Stockholders’ Representative or any Stockholder, and following the Closing receive process on behalf of each Stockholder any or all Stockholders in any such Action claim, action, proceeding or investigation and compromise or settle on such terms as the Stockholders’ Representative will shall determine to be appropriate, appropriate and give receipts, releases and discharges on behalf of all or any of Stockholders with respect to any such Actionclaim, action, proceeding or investigation; (Cv) file any proofs, debts, claims and petitions as the Stockholders’ Representative may deem advisable or necessary, ; (Dvi) settle or compromise any claims related to asserted under Article IV or Article XI or under the Transactions, Escrow Agreement; (Evii) assume, on each Stockholder’s behalfbehalf of all of Stockholders, the defense of any claims related to claim that is the Transactions, basis of any claim asserted under Article IV or Article XI or under the Escrow Agreement; and (Fviii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Actionsclaims, actions, proceedings or investigations, it being understood that the Stockholders’ Representative will shall not have any obligation to take any such actions, and will shall not have Liability liability for any failure to take such any such action; (vii) to enforce payment from the Escrow Amount and of any other amounts payable to Stockholders, in each case on behalf of Stockholders; (ii) to authorize and cause to be paid out of the Escrow Amount the full amount of any indemnification claims by the Parent in favor of any Parent Indemnitee pursuant to Article XI and also any other amounts to be paid out of the Escrow Amount pursuant to this Agreement and the Escrow Agreement; (iii) to waive or refrain from enforcing any right of any Stockholder or of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement, the Escrow Agreement or any other Transaction Document; (iv) to make, execute, acknowledge and deliver all such other Contractsagreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, including the Direction Letter, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretiondirection, may consider necessary or proper or convenient in connection with or to carry out the activities described in Section 7.1(a)(iparagraphs (i) through (viiii) above and the Transactions, the Escrow Agreement and the other Transaction Documents; and (v) to establish a reserve in an amount not to exceed Three Million Dollars ($3,000,000) from the Closing Date Cash Merger Consideration to fund certain costs and expenses set forth in the Direction Letter (the “Stockholders’ Rep Reserve”). (bd) The Parent, the Company, the Surviving Corporation, LLC Sub and their respective Subsidiaries and Affiliates shall be entitled to rely exclusively and conclusively upon the communications, actions and omissions of the Stockholders’ Representative relating to the foregoing, as the communications, actions and omissions of the Stockholders. Neither the Parent nor the Company (i) are required to make any inquiry or investigation regarding the authority of the Stockholders’ Representative to act on behalf of all Stockholders hereunder, or (ii) shall be held liable or accountable in any manner for any communication, act or omission of the Stockholders’ Representative in such capacity, including any Losses arising out of or relating to the disbursement of each Stockholder’s portion of the Closing Date Cash Merger Consideration or any other amounts payable by the Stockholders’ Representative to the Stockholders in accordance with this Agreement and the Direction Letter. Each of the Stockholders (A) acknowledges and agrees that such Stockholder has reviewed and had reasonable opportunity to discuss in advance with the Stockholders’ Representative the portion of the Closing Date Cash Merger Consideration and other amounts payable by the Stockholders’ Representative to such Stockholder in accordance with this Agreement and the Direction Letter and (B) hereby waives, following payment by the Parent to the Stockholders’ Representative of the Closing Date Cash Merger Consideration or any other amount payable to the Stockholders’ Representative by the Parent for the account of and on behalf of the Stockholders, in each case, in accordance with this Agreement, any Claim or other method of recovery, in contract, in tort or under applicable Law, against the Parent, Merger Sub, the Surviving Corporation or LLC Sub relating to the portion of such amount (if any) payable to such Stockholder by the Stockholders’ Representative. (e) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that (i) the Stockholders’ Representative may not enter into or grant any amendments or modifications described in Section 14.1(a) or waivers or consents described in Section 14.1(b) unless such amendments, modifications, waivers or consents shall affect each Stockholder similarly and to the same relative extent, and (ii) any such amendment, modification, waiver or consent that does not affect any Stockholder similarly and to the same relative extent as it affects other Stockholders must be executed by such Stockholder to be binding on such Stockholder. The provisions of this paragraph shall not limit the ability of the Parent, the Company, the Surviving Corporation, LLC Sub and their respective Subsidiaries and Affiliates to rely exclusively and conclusively upon the communications, actions and omissions of the Stockholders’ Representative with respect to the matters provided herein. (f) The grant of authority provided for in this Section 7.1: 14.1 (i) is coupled with an interest and is being granted, in part, as an inducement to the Acquired Entities Company, Parent and Parent Merger Sub to enter into this Agreement and to the Stockholders to vote in favor of the Merger, and will shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Stockholder Stockholders and will shall be binding on any successor thereto; (ii) subject to Section 7.3, may be exercised by the Stockholders’ Representative acting by signing as Stockholders’ Representative of any Stockholder. (c) Each Seller, receiving a Note Participation, acknowledges and agrees that the Stockholders’ Representative is hereby appointed to serve as such Seller’s Nominee pursuant to the terms of the Promissory Note and acknowledges and agrees that Parent will report all interest amounts attributable to Seller’s respective interest in the Promissory Note to the Internal Revenue Service (“IRS”) on Form 1099. Each Seller shall be solely responsible for (i) paying all Taxes required to be paid in connection with any amounts allocated and paid to such Seller under the Promissory Note and (ii) reporting such interest shall survive any distribution from the Escrow Account. The Stockholders’ Representative may resign at any time, subject to the IRS in accordance with prior appointment of a successor Stockholders’ Representative reasonably acceptable to the Form 1099 provided by Parent. Each Seller, receiving a Note Participation, shall provide Parent with such Seller’s tax identification number and such other information as Parent may request for the purpose of completing and reporting interest income under the Promissory Note.