Common use of Target Stockholder Representative Clause in Contracts

Target Stockholder Representative. (a) WCAS has been appointed as and constitutes the “Target Stockholder Representative” and as such shall serve as and have all powers as agent and attorney-in-fact of each Target Stockholder, for and on behalf of such Target Stockholders for purposes of this Agreement, including, to give and receive notices and communications; to have the authority to calculate, negotiate and agree to the Merger Consideration (including the components thereof) in accordance with the adjustments procedures set forth in this Agreement; to sign receipts, consents or other documents and to effect the transactions contemplated hereby; to make (or cause to be made) distributions to the Target Stockholders and to take all actions it deems necessary or appropriate for the accomplishment of the foregoing, including retaining any attorneys, accountants or other advisors as the Target Stockholder Representative sees fit. The Target Stockholder Representative may resign such position for any reason upon at least thirty (30) days prior written notice delivered to Parent and the Target Stockholders. In such event, the Target Stockholders who held at least a majority of Target Common Stock as of the Closing shall, by written notice to Parent, appoint a successor Target Stockholder Representative within such thirty (30) day period. Notice or communications to or from the Target Stockholder Representative shall constitute notice to or from the Target Stockholders. (b) The Target Stockholder Representative shall only be liable for any action taken or not taken as a Target Stockholder Representative solely to the extent such Target Stockholder Representative’s action constitutes gross negligence, fraud or willful misconduct. No bond shall be required of the Target Stockholder Representative, and the Target Stockholder Representative shall not receive compensation for its services. The Target Stockholder Representative shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document reasonably believed by it to be genuine and to have been signed by the proper person, nor for any other action or inaction, except to the extent caused by its own gross negligence, fraud or willful misconduct. (c) A decision, act, consent or instruction of the Target Stockholder Representative shall constitute a decision of all Target Stockholders, and shall be final, binding and conclusive upon each of the Target Stockholders, and Parent, Surviving Corporation and Target may rely upon any decision, act, consent or instruction of the Target Stockholder Representative as being the decision, act, consent or instruction of each and all of the Target Stockholders. Parent and Surviving Corporation are relieved from any liability to any Target Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Target Stockholder Representative. (d) The Target Stockholders agree to take any and all action as may be reasonably required by the Target Stockholder Representative (including, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the purposes of this Agreement.

Target Stockholder Representative. (a) WCAS Windward has been appointed as and constitutes the “Target Stockholder Representative” and as such shall serve as and have all powers as agent and attorney-in-fact of each Target Stockholder, for and on behalf of such Target Stockholders for purposes of this Agreement, including, including without limitation: to give and receive notices and communications; to have the authority to calculate, negotiate and agree to the Total Common Stock Merger Consideration (including the components thereof) in accordance with the adjustments procedures set forth in this AgreementSection 2.9; to sign receipts, consents or other documents and to effect the transactions contemplated hereby; to make (or cause to be made) distributions to the Target Common Stockholders and holders of In-the-Money Target Options and to take all actions it deems necessary or appropriate for the accomplishment of the foregoing, including without limitation retaining any attorneys, accountants or other advisors (collectively, “Advisors”) as the Target Stockholder Representative sees fit. The Target Stockholder Representative may resign such position for any reason upon at least thirty (30) days prior written notice delivered to the Parent and the Target Stockholders. In such event, the Target Stockholders who held at least a majority of the Target Common Stock as of the Closing shall, by written notice to the Parent, appoint a successor Target Stockholder Representative within such thirty (30) day period. Notice or communications to or from the any Target Stockholder Representative shall constitute notice to or from each of the Target Stockholders. (b) The Target Stockholder Representative shall only be liable for any action taken or not taken as a Target Stockholder Representative solely to the extent such Target Stockholder Representative’s action constitutes gross negligence, fraud or willful misconduct. No bond shall be required of the Target Stockholder Representative, and the Target Stockholder Representative shall not receive compensation for its services. The Target Stockholder Representative shall incur no liability Liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document reasonably believed by it to be genuine and to have been signed by the proper person, nor for any other action or inaction, except to the extent caused by its own gross negligence, fraud or willful misconduct. (c) The Target Stockholder Representative shall be entitled to reimburse itself from the Target Stockholder Representative Expense Amount for any costs and expenses (“Target Stockholder Representative Costs”) incurred by the Target Stockholder Representative, including for the retention of Advisors. The Target Stockholder Representative shall maintain the Target Stockholder Representative Expense Amount until such time as the Target Stockholder Representative reasonably believes that it will not incur any additional Target Stockholder Representative Costs in order to satisfy its obligations hereunder (the “Target Stockholder Representative Completion Date”). As promptly as practicable following the Target Stockholder Representative Completion Date, the Target Stockholder Representative shall (i) provide each Target Stockholder with a written accounting of all Target Stockholder Representative Costs reimbursed to the Target Stockholder Representative from the Target Stockholder Representative Expense Amount and (ii) distribute to each Target Stockholder all remaining amounts, if any, of the Target Stockholder Representative Expense Amount in the same proportions that the Total Common Stock Merger Consideration was distributed to the Target Common Stockholders and the holders of Target Options in Section 2.3 and Section 3.1 above. (d) A decision, act, consent or instruction of the Target Stockholder Representative shall constitute a decision of all the Target Stockholders, and shall be final, binding and conclusive upon each of the Target Stockholders, and the Parent, Merger Sub, Surviving Corporation and the Target may rely upon any decision, act, consent or instruction of the Target Stockholder Representative as being the decision, act, consent or instruction of each and all of the Target Stockholders. Parent The Parent, Merger Sub and Surviving Corporation are relieved from any liability Liability to any Target Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Target Stockholder Representative. (de) The Target Stockholders agree to take any and all action as may be reasonably required by the Target Stockholder Representative (including, without limitation, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the purposes of this Agreement.

Target Stockholder Representative. (a) WCAS Upon the approval of the Target Stockholders by vote at a meeting of such Target Stockholders or by written consent, which shall have been obtained prior to the execution of this Agreement, M/C Venture Partners V, L.P. has been appointed as and constitutes the “Target Stockholder Representative” and as such shall serve as and have all powers as agent and attorney-in-fact of each Target Stockholder, for and on behalf of such Target Stockholders for purposes of this Agreement, including, : to give and receive notices and communications; to enter into the Escrow Agreement on behalf of the Target Stockholders; to have the authority to calculateagree to, negotiate negotiate, enter into settlements and agree compromises of, and comply with orders of courts with respect to the Merger Consideration (including the components thereof) in accordance with the adjustments procedures set forth in this Agreementany disputes involving any claims for indemnification made by Parent; to sign receipts, consents or other documents and to effect the transactions contemplated hereby; to make (or cause to be made) distributions to the Target Stockholders and to take all actions it deems necessary or appropriate in the judgment of the Target Stockholder Representative for the accomplishment of the foregoing, including retaining any attorneys, accountants or other advisors as the Target Stockholder Representative sees fit. The Target Stockholder Representative may resign such position for any reason upon at least thirty (30) days prior written notice delivered to Parent and the Target Stockholders. In such event, the The Target Stockholders who held at least a majority of the Target Common Preferred Stock as of the Closing shall, by written notice to Parent, appoint a successor Target Stockholder Representative within such thirty (30) day perioddays. Notice or communications to or from the any Target Stockholder Representative shall constitute notice to or from each of the Target Stockholders. (b) The Target Stockholder Representative may be changed following the Closing by a vote of the Target Stockholders who held at least a majority of the Target Preferred Stock at the Closing from time to time upon not less than ten (10) days prior written notice to Parent. (c) The Target Stockholder Representative shall only not be liable for any action taken or not taken as a Target Stockholder Representative solely to in the extent absence of such Target Stockholder Representative’s action constitutes gross negligence, fraud or willful misconduct. No bond shall be required of the Target Stockholder Representative, and the Target Stockholder Representative shall not receive compensation for its his services. The Target Stockholder Representative shall incur no liability Liability with respect to any action taken or suffered by it him in reliance upon any notice, direction, instruction, consent, statement or other document reasonably believed by it him to be genuine and to have been signed by the proper person, nor for any other action or inaction, except to the extent caused by its his own gross negligence, fraud or willful misconduct. The Target Stockholders shall indemnify the Target Stockholder Representative pursuant to Section 9.2(d) hereof. The Target Stockholder Representative shall be entitled to such indemnification from the Escrow Amount to the extent that the Escrow Amount would otherwise be distributable to the Target Stockholders in accordance with this Agreement and the Escrow Agreement. (cd) A decision, act, consent or instruction of the Target Stockholder Representative shall constitute a decision of all the Target Stockholders, and shall be final, binding and conclusive upon each of the Target Stockholders, and Parent, Merger Sub, Surviving Corporation and the Target may rely upon any decision, act, consent or instruction of the Target Stockholder Representative as being the decision, act, consent or instruction of each and all of the Target Stockholders. Parent Parent, Merger Sub and Surviving Corporation are relieved from any liability Liability to any Target Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Target Stockholder Representative. (de) The Principal Target Stockholders agree to pay their Pro Rata Portion of, and to reimburse Target Stockholder Representative for, the cost of any attorneys, accountants or other advisors retained by the Target Stockholder Representative in connection with any action taken or not taken as a Target Stockholder Representative, and other reasonable expenses incurred by the Target Stockholder Representative, pursuant to the authorization granted in this Section 3.7, and neither Parent nor Surviving Corporation shall be responsible for any such expenses except to the extent such expenses are rightfully the responsibility of Parent or the Surviving Corporation in accordance with Section 9.3 of this Agreement. (f) The Target Stockholders agree to take any and all action as may be reasonably required by the Target Stockholder Representative (including, without limitation, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the purposes of this Agreement.

Target Stockholder Representative. (a) WCAS has been By executing this Agreement, each of the Target Stockholders shall be deemed to have constituted and appointed as and constitutes the “Target Stockholder Representative” and as such shall Cxxxxxx Xxxxxxxxx to serve as and have all powers as agent the agent, proxy and attorney-in-fact of each (the “Target Stockholder, Stockholder Representative”) for and on behalf of such the Target Stockholders for all purposes of this Agreement, including, to give and receive notices and communications; to have the authority to calculate, negotiate and agree to the Merger Consideration (including the components thereof) in accordance with the adjustments procedures set forth in this Agreement; to sign receipts, consents or other documents and to effect the transactions contemplated hereby; to make (or cause to be made) distributions to the Target Stockholders and to take all actions it deems necessary or appropriate for such action and to exercise such powers under this Agreement and the accomplishment of the foregoing, including retaining any attorneys, accountants or other advisors Related Documents as are delegated to the Target Stockholder Representative sees fitby the terms hereof or thereof, together with such powers as are reasonably incidental thereto, including the power to take any action, or refrain from taking any action, in his, her or its sole and absolute discretion as to any matter that may arise under this Agreement or the Related Documents as to which the Target Stockholders are not given express authority hereunder. The authority of the Target Stockholder Representative may resign under this Section 9.4 is irrevocable without the consent of the Target Stockholder Representative, shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Target Stockholder and any such position for any reason upon at least thirty (30) days prior revocation shall be effective only after written notice delivered to Parent and thereof is received by the Target Stockholders. In such eventBuyer. (b) Without limiting the foregoing, the Target Stockholder Representative shall have full power and authority to do each and every act and exercise any and all rights the Target Stockholders who held at least a majority of Target Common Stock are permitted or required to do or exercise under this Agreement or the Related Documents, as of applicable; provided, however, that in no case shall the Closing shall, by written notice to Parent, appoint a successor Target Stockholder Representative within be entitled to take any such thirty action the effect of which would be to treat any Target Stockholder disproportionately to any other Target Stockholder (30in such capacity as a stockholder). (c) day period. Notice Notices or communications to or from the Target Stockholder Representative shall constitute notice to or from each Target Stockholder. The Target Stockholder Representative shall have no duties or responsibilities except those expressly set forth herein. As to any matters not expressly provided for by this Agreement or the Related Documents, the Target StockholdersStockholder Representative may exercise his, her or its discretion as aforesaid. The Target Stockholder Representative shall not be required to take any action which, in his, her or its good faith judgment, exposes the Target Stockholder Representative to personal Liability or which is contrary to this Agreement, the Related Documents or applicable Law. (bd) The Target Stockholder Representative shall only not be liable for any action taken act done or not taken omitted hereunder as Target Stockholder Representative while acting in good faith and in the exercise of reasonable judgment; provided, however, that nothing contained herein shall relieve the Target Stockholder Representative from Liability arising out of his, her or its own fraud, gross negligence or bad faith. (e) The Target Stockholder Representative may be removed at any time upon the written consent of the holders of a majority-in-interest of the Escrow Amount; provided however, that a successor Target Stockholder Representative must be concurrently appointed by such holders, who shall promptly notify the Buyer and the other Target Stockholders, in writing, of such removal and the appointment of a successor thereto. The Target Stockholder Representative may resign and be discharged from his, her or its duties and obligations as a Target Stockholder Representative solely under this Agreement by giving at least thirty (30) days prior notice to the extent such Target Stockholder Representative’s action constitutes gross negligenceStockholders, fraud or willful misconductthe Buyer and the Escrow Agent. No bond shall be required In the event of the resignation of the Target Stockholder Representative, until a successor Target Stockholder Representative has been appointed as provided herein, the resigning Target Stockholder Representative shall continue to perform his, her or its duties and obligations under this Agreement and may apply to a court of competent jurisdiction for the appointment of a successor Target Stockholder Representative. Within thirty (30) days after receiving notice from a resigning Target Stockholder Representative or after the death of a Target Stockholder Representative, the holders of a majority-in-interest of the Escrow Amount shall appoint a successor Target Stockholder Representative and inform the Buyer and the Escrow Agent, in writing, of the name of such successor. Any such successor Target Stockholder Representative shall execute a joinder to this Agreement and shall be entitled to all of the rights, and have all of the obligations, of the Target Stockholder Representative hereunder. (f) All reasonable fees and expenses incurred by the Target Stockholder Representative in connection with this Agreement shall not receive compensation for its servicesbe borne by the Target Stockholders (on a pro rata basis). The Target Stockholder Representative shall incur no liability with respect may, at the time of any disbursement of funds from the Escrow Account to any action taken or suffered by it in reliance upon any noticethe Target Stockholders, direction, instruction, consent, statement or other document reasonably believed by it instruct the Escrow Agent to withhold and pay to the Target Stockholder Representative a portion of the proceeds to be genuine paid to the Target Stockholders as is necessary to satisfy the actual out-of -pocket costs and to have been signed expenses, including the fees and expenses of counsel, reasonably incurred by the proper person, nor for any other action or inaction, except to Target Stockholder Representative in connection with the extent caused by its own gross negligence, fraud or willful misconductperformance of his responsibilities under this Agreement after the Closing. (cg) By his signature to this Agreement, Cxxxxxx Xxxxxxxxx hereby accepts the appointment contained herein and agrees to act as the Target Stockholder Representative and to discharge the duties and responsibilities of the Target Stockholder Representative pursuant to the terms hereof. (h) A decision, act, consent or instruction of the Target Stockholder Representative shall constitute a decision of all Target Stockholders, Stockholders for whom the Escrow Amount are deposited and shall be final, binding and conclusive upon each of the Target Stockholderssuch holder, and Parent, Surviving Corporation the Escrow Agent and Target the Buyer may rely upon any decision, act, consent or instruction of the Target Stockholder Representative as being the decision, act, consent or instruction of each and all of every Target Stockholder. To the Target Stockholders. Parent and Surviving Corporation are relieved from any liability to any Target Stockholder extent that either the Escrow Agent or any other Person for any the Buyer acts done by them in accordance with such a decision, act, consent or instruction of the Target Stockholder Representative. (d) The Target Stockholders agree , the Escrow Agent and the Buyer are hereby relieved from any Liability with respect to take such act, to any and all action as may be reasonably required by Person, including the Target Stockholder Representative (including, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the purposes of this AgreementStockholders.

Target Stockholder Representative. (ai) WCAS has been appointed The adoption of this Agreement by the Target Stockholders by vote at a meeting of such Stockholders or by written consent shall constitute the approval of Xxxxxxx X. Xxxxx as and constitutes the “Target Stockholder Representative” and and, as such such, shall authorize Xxxxxxx X. Xxxxx to serve as and have all powers as agent and attorney-in-fact of each Target Stockholder, for and on behalf of such Target Stockholders for purposes of this Agreement, including, : to give and receive notices and communications; to have the authority to calculateagree to, negotiate negotiate, enter into settlements and agree compromises of, and comply with orders of courts with respect to the Merger Consideration (including the components thereof) in accordance with the adjustments procedures set forth in this Agreementany disputes involving any claims for indemnification made by Parent; to sign receipts, consents consents, or other documents and to effect the transactions contemplated hereby; to make (or cause to be made) distributions to the Target Stockholders and to take all actions it deems necessary or appropriate in the judgment of the Target Stockholder Representative for the accomplishment of the foregoing, including retaining any attorneys, accountants or other advisors as . If the Target Stockholder Representative sees fit. The ceases to act as a Target Stockholder Representative may resign such position for any reason upon at least thirty (30) days prior written notice delivered reason, such Target Stockholder Representative or his agent shall notify Parent of such Target Stockholder Representative’s intent to Parent resign as Target Stockholder Representative, and the Target Stockholders. In such event, the remaining Target Stockholders who held at least holding a majority of Target Common Stock as the outstanding voting power of the Closing Target held by such remaining Target Stockholders immediately prior to the Effective Time shall, by written notice to Parent, appoint a successor Target Stockholder Representative within such thirty (30) day perioddays. Notice or communications to or from the any Target Stockholder Representative shall constitute notice to or from each of the Target Stockholders. (bii) The Target Stockholder Representative may be changed by a vote of the Target Stockholders holding a majority of the outstanding voting power of the Target held by such remaining Target Stockholders immediately prior to the Effective Time from time to time upon not less than ten (10) days prior written notice to Parent prior to the Closing; following the Closing, the Target Stockholder Representative may not be changed except in accordance with § 3(h)(i). (iii) The Target Stockholder Representative shall only not be liable for any action taken or not taken as a Target Stockholder Representative solely to in the extent absence of such Target Stockholder Representative’s action constitutes gross negligence, fraud or willful misconduct. No bond shall be required of the Target Stockholder Representative, and the Target Stockholder Representative shall not receive compensation for its his services. The Target Stockholder Representative shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document reasonably believed by it to be genuine and to have been signed by the proper person, nor for any other action or inaction, except to the extent caused by its own gross negligence, fraud or willful misconduct. (civ) A decision, act, consent or instruction of the Target Stockholder Representative shall constitute a decision of all the Target Stockholders, and shall be final, binding and conclusive upon each of the Target Stockholders, and Parent, Merger Sub, Surviving Corporation Corporation, and the Target may rely upon any decision, act, consent or instruction of the Target Stockholder Representative as being the decision, act, consent or instruction of each and all of the Target Stockholders. Parent Parent, Merger Sub and Surviving Corporation are relieved from any liability Liability to any Target Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction instruction. (v) The Target Stockholders agree to share on a pro rata basis and to reimburse Target Stockholder Representative for, the cost of any attorney, accountant or other advisors retained by the Target Stockholder Representative in connection with any action taken or not taken as a Target Stockholder Representative, and other reasonable expenses incurred by the Target Stockholder Representative, pursuant to the authorization granted in this §3(h), and neither Parent nor Surviving Corporation shall be responsible for any such expenses except to the extent such expenses are rightfully the responsibility of Parent or the Surviving Corporation in accordance with § 12(j)(i) of this Agreement. (dvi) The Target Stockholders agree to take any and all action as may be reasonably required by the Target Stockholder Representative (including, without limitation, the execution of certificates, transfer documents, receipts, instruments, consents or similar documents) to effectuate the purposes of this Agreement.