Common use of Target Representative Clause in Contracts

Target Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed Jxxxxx Xxxxx as the initial Target Representative. The Target Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Promissory Notes and to take any and all actions and make any decisions required or permitted to be taken by Target Representative pursuant to this Agreement or the Promissory Notes, including the exercise of the power to: (i) give and receive notices and communications; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII; (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Promissory Notes); (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Notes); (vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Target Representative in complying with its duties and obligations; and (viii) take all actions necessary or appropriate in the good faith judgment of Target Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Target Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Target Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Target Representative, as being fully binding upon such Person. Notices or communications to or from Target Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Target Representative hereunder, including any agreement between Target Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company Members, or by operation of Law, whether by death or other event. (b) The Target Representative may be removed, etc. as provided in this Section 10.1(b). (i) The Target Representative may resign at any time. (ii) The Target Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Target Representative resign or be removed without the Majority Holders having first appointed a new Target Representative who shall assume such duties immediately upon the resignation or removal of Target Representative. (iii) In the event of the death, incapacity, resignation or removal of Target Representative, a new Target Representative shall be appointed by the vote or written consent of the Majority Holders. (iv) Notice of such vote or a copy of the written consent appointing such new Target Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Target Representative as described in Section 10.1(a) above. (c) The Target Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Target Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Target Representative, the Target Representative must notify the Target Company Members. (d) The Target Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement or the Promissory Notes, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Target Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Target Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Target Representative under this Agreement and the Promissory Notes (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Target Representative, Target Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Shares).

Target Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member Stockholder shall have irrevocably authorized and appointed Jxxxxx Xxxxx Jxxxxxx Xxxxxx as the initial Target Representative. The Target Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Promissory Notes and to take any and all actions and make any decisions required or permitted to be taken by Target Representative pursuant to this Agreement or the Promissory Notes, including the exercise of the power to: (i) give and receive notices and communications; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII; (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Promissory Notes); (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Notes); (vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Target Representative in complying with its duties and obligations; and (viii) take all actions necessary or appropriate in the good faith judgment of Target Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Target Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member Stockholder by Target Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member Stockholder by Target Representative, as being fully binding upon such Person. Notices or communications to or from Target Representative shall constitute notice to or from each of the Target Company MembersStockholders. Any decision or action by Target Representative hereunder, including any agreement between Target Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members Stockholders and shall be final, binding and conclusive upon each such Person. No Target Company Member Stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company MembersStockholders, or by operation of Law, whether by death or other event. (b) The Target Representative may be removed, etc. as provided in this Section 10.1(b). (i) The Target Representative may resign at any time. (ii) The Target Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members Stockholders according to each Target Company MemberStockholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Target Representative resign or be removed without the Majority Holders having first appointed a new Target Representative who shall assume such duties immediately upon the resignation or removal of Target Representative. (iii) In the event of the death, incapacity, resignation or removal of Target Representative, a new Target Representative shall be appointed by the vote or written consent of the Majority Holders. (iv) Notice of such vote or a copy of the written consent appointing such new Target Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Target Representative as described in Section 10.1(a) above. (c) The Target Representative shall act as a fiduciary with fiduciary duties to the Target Company MembersStockholders. If the Target Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Target Representative, the Target Representative must notify the Target Company MembersStockholders. (d) The Target Representative shall not be liable to the Target Company Members Stockholders for actions taken pursuant to this Agreement or the Promissory Notes, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Target Representative shall be conclusive evidence of good faith). The Target Company Members Stockholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Target Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Target Representative under this Agreement and the Promissory Notes (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Target Representative, Target Representative shall reimburse the Target Company Members Stockholders the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company MembersStockholders, severally and not jointly (in accordance with their Pro Rata Shares).

Target Representative. (a) By approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member Stockholder shall have irrevocably authorized and appointed Jxxxxx Xxxxx Jxxx Xxxxxxx as the initial Target Representative. The Target Representative will act as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and the Promissory Notes and to take any and all actions and make any decisions required or permitted to be taken by Target Representative pursuant to this Agreement or the Promissory NotesAgreement, including the exercise of the power to: (i) give and receive notices and communications; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII; (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Promissory Notes)Document; (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Notes)Document; (vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Target Representative in complying with its duties and obligations; and (viii) take all actions necessary or appropriate in the good faith judgment of Target Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Target Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member Stockholder by Target Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member Stockholder by Target Representative, as being fully binding upon such Person. Notices or communications to or from Target Representative shall constitute notice to or from each of the Target Company MembersStockholders. Any decision or action by Target Representative hereunder, including any agreement between Target Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members Stockholders and shall be final, binding and conclusive upon each such Person. No Target Company Member Stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Target Company MembersStockholders, or by operation of Law, whether by death or other event. (b) The Target Representative may be removed, etc. as provided in this Section 10.1(b). (i) The Target Representative may resign at any time. (ii) The Target Representative may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Target Company Members Stockholders according to each Target Company MemberStockholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Target Representative resign or be removed without the Majority Holders having first appointed a new Target Representative who shall assume such duties immediately upon the resignation or removal of Target Representative. (iii) In the event of the death, incapacity, resignation or removal of Target Representative, a new Target Representative shall be appointed by the vote or written consent of the Majority Holders. (iv) Notice of such vote or a copy of the written consent appointing such new Target Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Target Representative as described in Section 10.1(a) above. (c) The Target Representative shall act as a fiduciary with fiduciary duties to the Target Company MembersStockholders. If the Target Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Target Representative, the Target Representative must notify the Target Company MembersStockholders. (d) The Target Representative shall not be liable to the Target Company Members Stockholders for actions taken pursuant to this Agreement or the Promissory NotesAgreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Target Representative shall be conclusive evidence of good faith). The Target Company Members Stockholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Target Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Target Representative under this Agreement and the Promissory Notes (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Target Representative, Target Representative shall reimburse the Target Company Members Stockholders the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company MembersStockholders, severally and not jointly (in accordance with their Pro Rata Shares).

Target Representative. (a) By approving this Agreement As of the Effective Time, Target hereby irrevocably appoints Xxxxxx Xxxxxx III as its true and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Target Company Member shall have irrevocably authorized and appointed Jxxxxx Xxxxx as the initial Target Representative. The Target Representative will act as such Person’s representative and lawful attorney-in-fact to act and agent on behalf of such Person and in the name of Target for the purposes of this Agreement, the Escrow Agreement and any other agreements executed by Target in connection with the Closing (the "Target Representative"). From and after the Effective Time, the Target Representative shall receive written notices for the Target under this Agreement, the Escrow Agreement and any other agreements executed by Target in connection with the Closing (collectively, "Target Documents") and shall have full power and authority to represent all Persons who as of the Closing Date hold equity interests in Target ("Affected Persons"), with respect to this Agreement all matters arising under the Target Documents, and all action taken by the Target Representative hereunder, pursuant to authority granted herein, shall be binding upon Target and the Promissory Notes Affected Persons. Without limiting the generality of the foregoing, with respect to all matters under this Agreement, the Target Representative shall have full power and authority, on behalf of Target and the Affected Persons, to interpret all the terms and provisions of the Target Documents, to negotiate and compromise any dispute which may arise under the Target Documents, to sign any releases or other documents with respect to any such dispute, to authorize payments to be made with respect thereto, and to take retain such counsel and consultants as appropriate and necessary to carry out its duties. The Target Representative, or any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Target Representative as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of the Target Representative, a successor shall be named by the prior Target Representative or by the holders of a majority of the interests of the Affected Persons (as determined immediately prior to the Closing). Each such successor Target Representative shall, after agreeing to become a party hereto by signing a counterpart signature page as the Target Representative, have all actions the power, authority, rights, and make privileges hereby conferred upon an original Target Representative, and the term "Target Representative," as used herein, shall be deemed to include each such successor Target Representative. The power-of-attorney granted in this Section 12.10 is coupled with an interest and is irrevocable. The other Parties hereto shall be entitled to rely exclusively upon any decisions required communication given or permitted to be other action taken by the Target Representative pursuant to this Agreement or the Promissory NotesAgreement, including the exercise of the power to: (i) give and receive notices and communications; (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.15; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Holdings pursuant to Article VI and Article VIII; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII; (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Document (including the Promissory Notes); (vi) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Notes); (vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Target Representative in complying with its duties and obligations; and (viii) take all actions necessary or appropriate in the good faith judgment of Target Representative for the accomplishment of the foregoing. Holdings shall be entitled to deal exclusively with Target Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Company Member by Target Representative, and on any other action taken or purported to be taken on behalf of any Target Company Member by Target Representative, as being fully binding upon such Person. Notices or communications to or from Target Representative shall constitute notice to or from each of the Target Company Members. Any decision or action by Target Representative hereunder, including any agreement between Target Representative and Holdings relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Target Company Members and shall be final, binding and conclusive upon each such Person. No Target Company Member shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by liable for any act of any one action taken or Target Company Members, or by operation of Law, whether by death not taken in reliance on a communication or other event. (b) The Target Representative may be removed, etc. as provided in this Section 10.1(b). (i) The Target Representative may resign at any time. (ii) The Target Representative may be removed for any reason or no reason by instruction from the vote or written consent of a majority in interest of the Target Company Members according to each Target Company Member’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Target Representative resign or be removed without the Majority Holders having first appointed a new Target Representative who shall assume such duties immediately upon the resignation or removal of Target Representative. (iii) In the event of the death, incapacity, resignation or removal of Target Representative, a new Target Representative shall be appointed by the vote or written consent of the Majority Holders. (iv) Notice of such vote or a copy of the written consent appointing such new Target Representative shall be sent to Holdings, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Holdings; provided, that until such notice is received, Holdings, Merger Sub and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Target Representative as described in Section 10.1(a) above. (c) The Target Representative shall act as a fiduciary with fiduciary duties to the Target Company Members. If the Target Representative has a personal conflict of interest with respect to any action, decision or determination to be made by the Target Representative, the Target Representative must notify the Target Company Members. (d) The Target Representative shall not be liable to the Target Company Members for actions taken pursuant to this Agreement or the Promissory Notes, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Target Representative shall be conclusive evidence of good faith). The Target Company Members shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Target Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Target Representative under this Agreement and the Promissory Notes (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Target Representative, Target Representative shall reimburse the Target Company Members the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied by the Target Company Members, severally and not jointly (in accordance with their Pro Rata Shares).