Common use of Stockholders’ Representative Clause in Contracts

Stockholders’ Representative. (a) Each Participating Holder, by virtue of the adoption of this Agreement and approval of the Merger by the Participating Holders (regardless of whether or not all Participating Holders vote in favor of or consent to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Shareholder Representative Services LLC (the “Stockholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Participating Holders and their respective successors shall be deemed to have approved, and shall be bound by, any and all actions taken by the Stockholders’ Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Stockholders’ Representative is unable or unwilling to serve or shall resign, a successor Stockholders’ Representative shall be selected by the holders of a majority of the shares of Company Common Stock outstanding immediately prior to the Closing. A Stockholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such consent not to be unreasonably withheld or delayed). Each successor Stockholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholders’ Representative.

Stockholders’ Representative. (a) Each Participating HolderSubject to the penultimate sentence of this Section 4.1, by virtue the Stockholders’ Representative shall serve as the exclusive agent of the adoption holders of this Agreement T2 Warrants and approval of the Merger by the Participating Holders (regardless of whether or not T3 Warrants for all Participating Holders vote in favor of or consent to the adoption purposes of this Agreement and the approval transactions contemplated hereby. Without limiting the generality of the Merger foregoing, the Stockholders’ Representative shall be authorized (a) to execute all certificates, documents and agreements on behalf of and in the name of any of the holders of T2 Warrants and T3 Warrants necessary to effectuate the transactions contemplated hereby, and regardless of whether at a meeting (b) to negotiate, execute and deliver all amendments, modifications and waivers to this Agreement or in an action any other agreement, document or instrument contemplated by written consent in lieu thereof), designates Shareholder Representative Services LLC (the “Stockholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Participating Holders and their respective successors Stockholders’ Representative also shall be deemed exclusively authorized to have approvedtake all actions on behalf of the holders of T2 Warrants and T3 Warrants in connection with any claims made under this Agreement or in respect of the Transactions contemplated hereby, to bring, prosecute, defend or settle such claims, and to make and receive payments in respect of such claims on behalf of the holders of T2 Warrants and T3 Warrants, and no holders of T2 Warrants and T3 Warrants shall take any such action without the Stockholders’ Representative’s prior written approval. The Stockholders’ Representative is serving in the capacity as exclusive agent of the holders of T2 Warrants and T3 Warrants hereunder solely for purposes of administrative convenience. The Stockholders’ Representative shall not be bound by, liable to any and all actions taken by Person for any act done or omitted hereunder as the Stockholders’ Representative on their behalf under while acting in good faith, and any act done or otherwise relating omitted pursuant to this Agreement and the other documents contemplated hereby and advice of counsel shall be conclusive evidence of such good faith. The holders of shares of Company Stock outstanding immediately prior to the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In First Effective Time shall indemnify the event any Stockholders’ Representative is unable and hold it harmless against any loss, liability or unwilling to serve expense incurred without gross negligence or shall resign, a successor bad faith on the part of the Stockholders’ Representative shall and arising out of or in connection with the acceptance or administration of its duties hereunder. The person serving as Stockholders’ Representative may resign or be selected replaced from time to time by the holders of a majority in interest of the shares of Company Common Escrowed Stock outstanding immediately prior to held in the Closing. A StockholdersEscrow Account upon not less than ten (10) days’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignationwith Parent’s written consent, or any death, disability or other replacement of a Stockholders’ Representative, a successor which shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such consent not to be unreasonably withheld withheld, conditioned or delayed). Each successor Stockholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholders’ Representative.

Stockholders’ Representative. (ai) Each Participating Holder, by virtue holder of Series A Preferred Stock hereby irrevocably constitutes and appoints GFI as the adoption sole and exclusive attorney-in-fact and proxy of this Agreement and approval such holder of the Merger by the Participating Holders (regardless of whether or not all Participating Holders vote in favor of or consent to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Shareholder Representative Services LLC Series A Preferred Stock (the “Stockholders’ Representative”) as his), her with full power of substitution and resubstitution, to exercise or its representative for purposes abstain from exercising the rights granted to the holders of Series A Preferred Stock pursuant to Section 4(d), this AgreementSection 6 and Section 8 to the fullest extent permitted by law. The Participating Holders and their respective successors shall be deemed to have approved, and shall be bound by, any and all actions Any action taken or not taken by the Stockholders’ Representative on their behalf under or otherwise relating pursuant to this Agreement Section 6(b) shall not be subject to challenge or input from any such holder of Series A Preferred Stock. Each holder of Series A Preferred Stock hereby revokes any and all previous proxies with respect to such holder’s Series A Preferred Stock and no subsequent proxies (whether revocable or irrevocable) shall be given (and if given, such subsequent proxies shall not be effective) by such holder with respect to the other documents contemplated Series A Preferred Stock that conflict with this proxy. This proxy and power of attorney is intended to be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy and is granted for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and shall be valid and binding on any person to whom the transactions contemplated hereunder holder of Series A Preferred Stock may transfer any of its Series A Preferred Stock. The power of attorney granted herein is a durable power of attorney and thereunder as if shall survive the dissolution, bankruptcy, death or incapacity of each holder of Series A Preferred Stock. The provisions of this Section 6(b) shall terminate with respect to a holder of Series A Preferred Stock once such actions were expressly ratified and confirmed by each of them in writingholder no longer owns any Series A Preferred Stock. In the event any The Stockholders’ Representative is unable may appoint one or unwilling more successor representatives to serve or shall resign, a successor the Stockholders’ Representative shall be selected by Representative, subject to the approval of holders of a majority of the shares of Company Common Series A Preferred Stock outstanding immediately prior to the Closing. A Stockholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such consent not to be unreasonably withheld or delayed). Each successor Stockholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholders’ Representativethen outstanding.

Stockholders’ Representative. (ai) Each Participating Holder, by virtue holder of Series B Preferred Stock hereby irrevocably constitutes and appoints Ares as the adoption sole and exclusive attorney-in-fact and proxy of this Agreement and approval such holder of the Merger by the Participating Holders (regardless of whether or not all Participating Holders vote in favor of or consent to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Shareholder Representative Services LLC Series B Preferred Stock (the “Stockholders’ Representative”), with full power of substitution and resubstitution, to exercise or abstain from exercising the rights granted to the holders of Series B Preferred Stock pursuant to this Section 6 (other than any amendments that are either (i) adversely disproportionate to holders of the Series B Preferred Stock as his, her compared to other holders of the Series B Preferred Stock or its representative for purposes (ii) adversely affect the definition of this AgreementCash Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 7(a)(ii)) to the fullest extent permitted by law. The Participating Holders and their respective successors shall be deemed to have approved, and shall be bound by, any and all actions Any action taken or not taken by the Stockholders’ Representative on their behalf under or otherwise relating pursuant to this Agreement Section 6(b) shall not be subject to challenge or input from any such holder of Series B Preferred Stock. Each holder of Series B Preferred Stock hereby revokes any and all previous proxies with respect to such holder’s Series B Preferred Stock and no subsequent proxies (whether revocable or irrevocable) shall be given (and if given, such subsequent proxies shall not be effective) by such holder with respect to the other documents contemplated Series B Preferred Stock that conflict with this proxy. This proxy and power of attorney is intended to be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy and is granted for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and shall be valid and binding on any person to whom the transactions contemplated hereunder holder of Series B Preferred Stock may transfer any of its Series B Preferred Stock. The power of attorney granted herein is a durable power of attorney and thereunder as if shall survive the dissolution, bankruptcy, death or incapacity of each holder of Series B Preferred Stock. The provisions of this Section 6(b) shall terminate with respect to a holder of Series B Preferred Stock once such actions were expressly ratified and confirmed by each of them in writingholder no longer owns any Series B Preferred Stock. In the event any The Stockholders’ Representative is unable may appoint one or unwilling more successor representatives to serve or shall resign, a successor the Stockholders’ Representative shall be selected by Representative, subject to the approval of holders of a majority of the shares of Company Common Series B Preferred Stock outstanding immediately prior to the Closing. A Stockholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such consent not to be unreasonably withheld or delayed). Each successor Stockholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholders’ Representativethen outstanding.

Stockholders’ Representative. (a) Each Participating HolderStockholder hereby appoints the Stockholders Representative as its agent and attorney-in-fact, by virtue with full power and authority to represent each Stockholder and such Stockholder’s successors and assigns with respect to all matters arising under this Agreement and each other Transaction Document; provided that, the Stockholders Representative will not be entitled to take any action with respect to any particular Stockholder without the consent of such Stockholder where such action would (i) reduce the Purchase Price, (ii) reduce such Stockholder’s Respective Portion of the adoption Purchase Price or the Holdback Amount, (iii) increase the Holdback Amount, (iv) increase the liability of such Stockholder under this Agreement or the other Transaction Documents or otherwise materially and adversely affect such Stockholder disproportionately to the other Stockholders, (v) amend the provisions of Article VII above or this Section 8.9, or (vi) agree to the extension of any time period set forth in this Agreement; and provided, further, that in any instance where a Stockholder is or may be severally liable under this Agreement or the other Transaction Documents, only such Stockholder (or its successors and assigns) shall have the power and authority to take action with respect such matter. In addition, the Stockholders Representative shall have no authority to execute or deliver the documents, certificates or agreements required to be executed and/or delivered by each Stockholder pursuant to Section 3.2 hereof. Subject to the foregoing limitations and the Contribution Agreement referred to in Section 8.14 below, the Stockholders Representative shall have full power and authority, on behalf of each Stockholder and such Stockholder’s successors and assigns, to interpret the terms and provisions of this Agreement and approval of the Merger by the Participating Holders (regardless of whether each other Transaction Document, to dispute or not all Participating Holders vote in favor of or consent fail to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Shareholder Representative Services LLC (the “Stockholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Participating Holders and their respective successors shall be deemed to have approved, and shall be bound by, dispute any and all actions taken by the Stockholders’ Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Stockholders’ Representative is unable or unwilling to serve or shall resign, a successor Stockholders’ Representative shall be selected by the holders of a majority of the shares of Company Common Stock outstanding immediately prior to the Closing. A Stockholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative Claim under this Agreement or any other Transaction Document, to negotiate and compromise any dispute that may arise under this Agreement or any other Transaction Document and to sign any releases or other documents with respect to any such dispute; provided that the Stockholders Representative shall not, without the consent of all the affected Stockholders (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such which consent shall not to be unreasonably withheld or delayed), enter into any settlement, compromise or discharge of a Claim that by its terms (1) includes injunctive or other non-monetary relief that adversely affects a Stockholder in any material respect, (2) does not release the Stockholders completely in connection with such Claim, or (3) would otherwise adversely affect a Stockholder disproportionately to the other affected Stockholders. Each successor Stockholders’ Representative shall have all Notwithstanding the powerforegoing, rightsany Stockholder may participate, authority and privileges hereby conferred upon at its own expense, in the original Stockholders’ Representativedefense of any Claim or dispute arising hereunder.