Common use of Stockholder Agent Clause in Contracts

Stockholder Agent. For purposes of this Agreement, the Company stockholders hereby consent to the appointment of the Stockholder Agent (and any replacement hereunder), as representative of the Company stockholders, and as the agent and attorney-in-fact for and on behalf of each Company stockholder, and, subject to the express limitations set forth below, the taking by the Stockholder Agent of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Agent under this Agreement, including, without limitation, the exercise of the power to (i) authorize delivery to Parent of the Escrow Shares and Escrow Cash, or any portion thereof, in satisfaction of Claims, (ii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Claims, (iii) take all actions necessary in connection with the waiver of any condition to the obligations of the Company stockholders under this Agreement, (iv) waive any right of the Company stockholders, (v) give and receive all notices required to be given under this Agreement, (vi) resolve any Claims and (vii) take all actions necessary in the sole judgment of the Stockholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. The Stockholder Agent shall have unlimited authority and power to act on behalf of each Company stockholder with respect to this Agreement and the disposition, settlement or other handling of all Claims, rights or obligations arising under this Agreement so long as all Company stockholders are treated in the same manner. The Company stockholders shall be bound by all actions taken by the Stockholder Agent in connection with this Agreement. Parent shall be entitled to rely on any action or decision of the Stockholder Agent, and no Company stockholder shall have any cause of action against the Stockholder Agent for any action taken, decision made or instruction given by the Stockholder Agent under this Agreement, except for fraud, gross negligence or willful misconduct (including willful breach of this Agreement) by the Stockholder Agent. In performing the functions specified in this Agreement, the Stockholder Agent shall not be liable to the Company stockholders in the absence of fraud, gross negligence or willful misconduct (including willful breach of this Agreement). In the event that Stockholder Agent dies, becomes unable to perform the responsibilities hereunder or resigns as the Stockholder Agent hereunder, a substitute representative shall be appointed by the holders of a majority of the value of the Escrow Shares and Escrow Cash to act as the Stockholder Agent of the Company stockholders hereunder. The Stockholder Agent may resign as the Stockholder Agent hereunder, effective upon a new representative being appointed in writing by Company stockholders who beneficially own a majority of the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash, if any. The Stockholder Agent shall not be entitled to receive any compensation from Parent or the Company stockholders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Stockholder Agent in connection with actions taken pursuant to the terms of this Agreement shall be paid by the Company stockholders to the Stockholder Agent in proportion to their percentage interests in the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash. Parent agrees that, in acting as Stockholder Agent hereunder and performing his obligations as a Stockholder Agent hereunder, the Stockholder Agent shall not be deemed to have violated any fiduciary or similar duties (if any) that the Stockholder Agent may owe to Parent by virtue of his position(s) with Parent or its subsidiaries. Each of the Company stockholders agree to indemnify and hold the Stockholder Agent harmless from and against all loss, liability, damages, cost or expense (including but not limited to reasonable attorneys’ and experts’ fees and court costs) incurred by the Stockholder Agent in connection with the performance of the Stockholder Agent’s duties and obligations under this Agreement (other than any loss, liability, damages, cost or expense incurred through acts or omissions constituting gross negligence or willful misconduct on the Stockholder Agent’s part). The provisions of this Section are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Company stockholder to the Stockholder Agent and shall be binding upon the executors, heirs, legal representatives and successors of each Company stockholder and any references in this Agreement to a Company stockholder shall include the successor to the Company stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.

Stockholder Agent. For purposes (a) To the fullest extent permitted by Law, the Company Securityholders (other than those holding Dissenting Shares), by the requisite approval and adoption of this Agreement, and the Company stockholders hereby consent to Founders exercise of the appointment drag along rights in ARTICLE V, Section 4(a) of the Company’s certificate of incorporation, irrevocably appoint the Stockholder Agent (and any replacement hereunder), as representative of the Company stockholders, and as the their agent and attorney-in-fact for and to act on behalf of each Company stockholderSecurityholder, and, subject in connection with and to facilitate the express limitations set forth below, consummation of the taking by the transactions contemplated hereby. The Stockholder Agent of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Agent under this Agreement, including, without limitation, the exercise of the power to is authorized: (i) authorize delivery to Parent of take all action necessary to consummate the Escrow Shares and Escrow Cashtransactions contemplated hereby, or the defense and/or settlement of any portion thereof, in satisfaction of Claimsclaims for which Parent or any other Indemnified Party may seek indemnity pursuant to this Article VII, (ii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders to prosecute on behalf of courts and awards of arbitrators with respect to such Claimsthe Company Securityholders indemnification claims against Parent or the Surviving Company under this Article VII, (iii) take all actions necessary in connection with the waiver of any condition to the obligations of the Company stockholders under this Agreement, (iv) waive any right of the Company stockholders, (v) give and receive all notices required to be given under this Agreement, (vi) resolve any Claims and (viiiv) to take all actions necessary in the sole judgment of the Stockholder Agent for the accomplishment of the foregoing any and all of the other terms, conditions and limitations of this Agreement. The Stockholder Agent shall have unlimited authority and power additional action as is contemplated to act on behalf of each Company stockholder with respect to this Agreement and the disposition, settlement or other handling of all Claims, rights or obligations arising under this Agreement so long as all Company stockholders are treated in the same manner. The Company stockholders shall be bound by all actions taken by the Stockholder Agent in connection with or by or on behalf of the Company Securityholders by the terms of this Agreement. Parent ; provided, however, that the powers conferred above shall be entitled to rely on any action not authorize or decision of the Stockholder Agent, and no Company stockholder shall have any cause of action against empower the Stockholder Agent for to do or cause to be done any action takenof the foregoing in a manner that improperly discriminates between or among the Company Securityholders, decision made or instruction given by the Stockholder Agent under this Agreement, except for fraud, gross negligence or willful misconduct (including willful breach of this Agreement) by the Stockholder Agent. In performing the functions specified in this Agreement, and provided further that the Stockholder Agent shall not be liable entitled to, and shall not, take any action that would or could (x) cause any Company Securityholder to the Company stockholders have any liability hereunder whatsoever in the absence of fraud, gross negligence or willful misconduct (including willful breach of this Agreement). In the event that Stockholder Agent dies, becomes unable to perform the responsibilities hereunder or resigns as the Stockholder Agent hereunder, a substitute representative shall be appointed by the holders of a majority of the value excess of the Escrow Shares Fund, (y) result in the amounts payable hereunder to any Company Securityholder being distributed in any manner other than as set forth in this Agreement and Escrow Cash to act as the Stockholder Agent of the Company stockholders hereunder. The Stockholder Agent may resign as the Stockholder Agent hereunder, effective upon a new representative being appointed in writing by Company stockholders who beneficially own a majority of the value of the Escrow Shares Agreement, or (valued at the Closing Pricez) and Escrow Cash, if any. The Stockholder Agent shall not be entitled to receive result in any compensation from Parent Company Securityholder having any indemnity or the Company stockholders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Stockholder Agent in connection with actions taken pursuant to the terms of this Agreement shall be paid by the Company stockholders to the Stockholder Agent in proportion to their percentage interests in the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash. Parent agrees that, in acting as Stockholder Agent hereunder and performing his other obligations as a Stockholder Agent hereunder, the Stockholder Agent shall not be deemed to have violated any fiduciary or similar duties (if any) that the Stockholder Agent may owe to Parent by virtue of his position(s) with Parent or its subsidiaries. Each of the Company stockholders agree to indemnify and hold the Stockholder Agent harmless from and against all loss, liability, damages, cost or expense (including but not limited to reasonable attorneys’ and experts’ fees and court costs) incurred by the Stockholder Agent in connection with the performance of the Stockholder Agent’s duties and obligations liabilities under this Agreement (other than including, for the avoidance of doubt, any loss, liability, damages, cost or expense incurred through acts or omissions constituting gross negligence or willful misconduct on the Stockholder Agent’s part). The provisions of this Section are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Company stockholder adverse change to the Stockholder Agent and shall be binding upon nature of the executorsindemnity obligations), heirs, legal representatives and successors in excess of each Company stockholder and any references those set forth in this Agreement to a Article VII, without (in each case) such Company stockholder shall include the successor to the Company stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseSecurityholder’s prior written consent.

Stockholder Agent. (a) For purposes of this Agreement, immediately and automatically upon the approval of this Agreement by the requisite vote or written consent of the Company stockholders hereby consent Stockholders, and, without any further action on the part of any such stockholders, each stockholder of Company shall be deemed to have consented to the appointment of the Stockholder Agent (and any replacement hereunder)Xxxxxx Xxx, as his, her or its representative of (the Company stockholders, “Stockholder Agent”) and as the agent and attorney-in-fact for and on behalf of each such Company stockholderStockholder, and, subject to the express limitations set forth below, and the taking by the Stockholder Agent of any and all actions and the making of any decisions required or permitted to be taken by the Stockholder Agent him under this Agreement and the Escrow Agreement, including, without limitation, including the exercise of the power to (i) execute the Escrow Agreement, (ii) authorize delivery to Parent and the Surviving Corporation of the Escrow Shares and the Escrow Cash, or any portion thereof, in satisfaction of Claims, (iiiii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with orders of courts and awards of arbitrators with respect to such Claims, (iii) take all actions necessary in connection with the waiver of any condition to the obligations of the Company stockholders under this Agreement, (iv) waive any right of the Company stockholders, (v) give and receive all notices required to be given under this Agreement, (vi) resolve any Claims and (viiv) take all actions necessary in the sole judgment of the Stockholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. The Accordingly, the Stockholder Agent shall have has unlimited authority and power to act on behalf of each Company stockholder Stockholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Claims, rights or obligations arising under this Agreement so long as all Company stockholders are treated in the same mannerfrom and taken pursuant to each such agreement. The Company stockholders shall Stockholders will be bound by all actions taken by the Stockholder Agent in connection with this Agreement. Agreement or the Escrow Agreement and Parent and Merger Sub shall be entitled to rely on any action or decision of the Stockholder Agent, and no Company stockholder shall have any cause of action against the Stockholder Agent for any action taken, decision made or instruction given by the Stockholder Agent under this Agreement, except for fraud, gross negligence or willful misconduct (including willful breach of this Agreement) by the Stockholder Agent. In performing the functions specified in this Agreement, the Stockholder Agent shall not be liable to the Company stockholders in the absence of fraud, gross negligence or willful misconduct (including willful breach of this Agreement). In the event that Stockholder Agent dies, becomes unable to perform the responsibilities hereunder or resigns as the Stockholder Agent hereunder, a substitute representative shall be appointed by the holders of a majority of the value of the Escrow Shares and Escrow Cash to act as the Stockholder Agent of the Company stockholders hereunder. The Stockholder Agent may resign as the Stockholder Agent hereunder, effective upon a new representative being appointed in writing by Company stockholders who beneficially own a majority of the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash, if any. The Stockholder Agent shall not be entitled to receive any compensation from Parent or the Company stockholders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Stockholder Agent in connection with actions taken pursuant to the terms of this Agreement shall be paid by the Company stockholders to the Stockholder Agent in proportion to their percentage interests in the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash. Parent agrees that, in acting as Stockholder Agent hereunder and performing his obligations as a Stockholder Agent hereunder, the Stockholder Agent shall not be deemed to have violated any fiduciary or similar duties (if any) that the Stockholder Agent may owe to Parent by virtue of his position(s) with Parent or its subsidiaries. Each of the Company stockholders agree to indemnify and hold the Stockholder Agent harmless from and against all loss, liability, damages, cost or expense (including but not limited to reasonable attorneys’ and experts’ fees and court costs) incurred by the Stockholder Agent in connection with the performance of the Stockholder Agent’s duties and obligations under this Agreement (other than any loss, liability, damages, cost or expense incurred through acts or omissions constituting gross negligence or willful misconduct on the Stockholder Agent’s part). The provisions of this Section are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Company stockholder to the Stockholder Agent and shall be binding upon the executors, heirs, legal representatives and successors of each Company stockholder and any references in this Agreement to a Company stockholder shall include the successor to the Company stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.Stockholder

Stockholder Agent. Each of the Sellers hereby irrevocably appoints First Reserve Corporation to be the representative (the "Stockholder Agent") of the Sellers following the Closing Date in any matter arising out of this Agreement. For any matter in which Buyer is entitled to rely on or otherwise deal with the Sellers, Buyer shall be entitled to communicate solely with the Stockholder Agent and shall be entitled to rely on any such communications as being the desire and will of the Sellers. Notice delivered to the Stockholder Agent in accordance with Section 11.2 hereof shall be deemed notice to all of the Sellers. For purposes of this Agreement, the Company stockholders hereby consent each Seller, without any further action on its part, shall be deemed to have consented to the appointment of the Stockholder Agent (and any replacement hereunder), as representative of the Company stockholders, and First Reserve Corporation as the agent and attorney-in-fact for and on behalf of each Company stockholdersuch Seller, and, subject to the express limitations set forth below, and the taking by the Stockholder Agent of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement. Accordingly, the Stockholder Agent under this Agreement, including, without limitation, the exercise of the power to (i) authorize delivery to Parent of the Escrow Shares and Escrow Cash, or any portion thereof, in satisfaction of Claims, (ii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Claims, (iii) take all actions necessary in connection with the waiver of any condition to the obligations of the Company stockholders under this Agreement, (iv) waive any right of the Company stockholders, (v) give and receive all notices required to be given under this Agreement, (vi) resolve any Claims and (vii) take all actions necessary in the sole judgment of the Stockholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. The Stockholder Agent shall have has unlimited authority and power to act on behalf of each Company stockholder Seller with respect to this Agreement and the disposition, settlement or other handling of all Claimsindemnification claims, amendments, waivers, and other rights or obligations arising under from and taken pursuant to this Agreement so long as all Company stockholders are treated in the same mannerAgreement. The Company stockholders shall Sellers will be bound by all actions taken by the Stockholder Agent in connection with this Agreement. Parent , and Buyer shall be entitled to rely on any action or decision of the Stockholder Agent. The Stockholder Agent will not incur any liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and no Company stockholder to have been signed by the proper person (and shall have any cause of action against no responsibility to determine the Stockholder Agent authenticity thereof), nor for any other action taken, decision made or instruction given by the Stockholder Agent under this Agreementinaction, except for fraudits own willful misconduct, bad faith or gross negligence or willful misconduct (including willful breach of this Agreement) by the Stockholder Agentnegligence. In performing the functions specified in all questions arising under this Agreement, the Stockholder Agent shall may rely on the advice of counsel, and the Stockholder Agent will not be liable to the Company stockholders Sellers for anything done, omitted or suffered in the absence of fraud, gross negligence or willful misconduct (including willful breach of this Agreement). In the event that Stockholder Agent dies, becomes unable to perform the responsibilities hereunder or resigns as the Stockholder Agent hereunder, a substitute representative shall be appointed by the holders of a majority of the value of the Escrow Shares and Escrow Cash to act as the Stockholder Agent of the Company stockholders hereunder. The Stockholder Agent may resign as the Stockholder Agent hereunder, effective upon a new representative being appointed in writing by Company stockholders who beneficially own a majority of the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash, if any. The Stockholder Agent shall not be entitled to receive any compensation from Parent or the Company stockholders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred good faith by the Stockholder Agent based on such advice. Notwithstanding the foregoing, Buyer will not incur any liability to any Seller with respect to any action taken or suffered by it in connection with actions taken pursuant to the terms of this Agreement shall be paid reliance upon any notice, direction, instruction, consent, statement, in each case whether written or oral, or other document provided by the Company stockholders Stockholder Agent, and no action or inaction on the part to the Stockholder Agent in proportion to their percentage interests in the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash. Parent agrees that, in acting as Stockholder Agent hereunder and performing his obligations as a Stockholder Agent hereunder, the Stockholder Agent shall not be deemed relieve any Seller of its obligations to have violated any fiduciary or similar duties (if any) that the Stockholder Agent may owe to Parent by virtue of his position(s) with Parent or its subsidiaries. Each of the Company stockholders agree to indemnify and hold the Stockholder Agent harmless from and against all loss, liability, damages, cost or expense (including but not limited to reasonable attorneys’ and experts’ fees and court costs) incurred by the Stockholder Agent in connection with the performance of the Stockholder Agent’s duties and obligations under this Agreement (other than any loss, liability, damages, cost or expense incurred through acts or omissions constituting gross negligence or willful misconduct on the Stockholder Agent’s part). The provisions of this Section are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Company stockholder to the Stockholder Agent and shall be binding upon the executors, heirs, legal representatives and successors of each Company stockholder and any references in this Agreement to a Company stockholder shall include the successor to the Company stockholders’ rights Buyer hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.