Common use of The Representative Clause in Contracts

The Representative. (a) The board of directors of the Company has determined that it is desirable to designate the Representative to act on behalf of the Company Equityholders for certain limited purposes, as described herein. By virtue of adoption of this Agreement by the Company Equityholders, and without further action by any Company Equityholder, Madison Dearborn Capital Partners V-A, L.P. is hereby irrevocably appointed, authorized and empowered to act as the initial "Representative", and execution of a written consent approving the transactions contemplated hereby by a Company Equityholder shall, to the maximum extent permitted under applicable Law, constitute irrevocable ratification and approval of such designation by such Company Equityholder and authorization of the Representative to serve in such capacity, and shall also constitute a reaffirmation, approval, acceptance, and adoption of, and an agreement to comply with and perform, all of the acknowledgments and agreements made by the Representative on behalf of the Company Equityholders in this Agreement and the other agreements entered into in connection herewith (including the Escrow Agreement). The Representative may resign at any time and for any reason and the Representative may be removed only by the vote of Persons who collectively owned more than fifty percent (50%) of the outstanding shares of Company Common Stock as of immediately prior to the Closing (the "Majority Holders"). The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, incapacity, illness, bankruptcy, dissolution, or other inability to act of any of the Company Equityholders. In the event that the Representative has resigned or been removed, a new Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal or appointment of a Representative shall be delivered by the Representative to the Buyer promptly after such action is taken. (b) The Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other agreement entered into in connection herewith (including the Escrow Agreement) and in connection therewith, shall be entitled to take such actions as the Representative deems appropriate in its sole discretion; provided, that the Representative shall have no obligation to act on behalf of the Company Equityholders. The Buyer and the Escrow Agent shall be entitled to rely on the actions taken by the Representative without independent inquiry into the capacity of the Representative to so act and none of the Buyer, the Merger Sub, the Surviving Corporation and the Escrow Agent shall have any obligations, responsibilities, or Liabilities whatsoever to the Company Equityholders with respect to any claim or Action by any Company Equityholder against the Representative. All actions, notices, communications, and determinations by the Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Company Equityholders. The Representative shall not have, by reason of this Agreement, any fiduciary relationship in respect of any other Company Equityholder. Neither the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives shall have any Liability to the Company Equityholders with respect to actions taken or omitted to be taken by the Representative in such capacity (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), except for any actions, or action omitted to be taken, which are finally determined to constitute gross negligence or willful misconduct by the Representative. The Representative shall at all times be entitled to rely on any directions received from the Majority Holders; provided, that the Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as Representative based upon any such direction. (c) The Representative shall be entitled to engage such counsel, accountants, experts, and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Representative (for itself and its direct or indirect officers, directors, partners, managers, employees, agents and representatives) shall be entitled to full reimbursement for all reasonable expenses, disbursements, and advances (including fees and disbursements of its counsel, accountants, experts, and other agents and consultants) incurred by the Representative in such capacity (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), and to full indemnification against any Loss, Liability, or expense arising out of actions taken or omitted to be taken in its capacity as Representative (except for any Loss, Liability, or expense which is finally determined was primarily caused by the gross negligence or willful misconduct of the Representative), including the costs and expenses of investigation and defense of claims, from any Company Equityholder. For the avoidance of doubt, neither the Buyer, the Company, nor any of their respective Subsidiaries shall have any reimbursement obligations under this Section 6.09(c). (d) Pursuant to Section 1.10(e), the Buyer shall pay over to the Representative at the Closing an amount in cash equal to the Representative Amount. The Representative shall deposit such funds into such accounts, or otherwise invest such funds, in any manner it may reasonably determine, and in no event shall the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives have any Liability to the Company Equityholders with respect to such funds or the manner of their investment, except for any action, or action omitted to be taken, by the Representative which is finally determined to constitute gross negligence or willful misconduct by the Representative. Such funds shall be a non-exclusive source of recovery for the Representative for any expenses, disbursements, or advances (including fees and disbursements of counsel, accountants, experts, and other agents and consultants) incurred by the Representative in its capacity as such (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), or for any Loss, Liability, or other expense incurred by the Representative or otherwise arising out of any action taken by it in its capacity as such (except for any Loss, Liability, or expense which is finally determined was primarily caused by the gross negligence or willful misconduct of the Representative). In addition to the Representative Amount, the Representative shall have the power and authority to set aside and retain additional funds otherwise payable to Company Equityholders pursuant to this Agreement to satisfy such obligations. (e) From time to time, the Representative may elect to distribute to the Company Equityholders all or any portion of the Representative Amount, together with any interest or earnings thereon. If the Representative so elects, it shall pay over (or cause to be paid over) to each Company Equityholder an amount equal to (i) the aggregate amount then being distributed by the Representative, multiplied by (ii) such Company Equityholder's Percentage Interest; provided, that, for any amount payable to a holder of Company Options pursuant to this Section 6.09(e), the Representative shall pay over to each holder of Company Options the amount that such holder is entitled to pursuant to this Section 6.09(e), less any applicable withholding Taxes pursuant to Section 1.12(g). The aggregate amount distributable pursuant to this Section 6.09(e) with respect to a share of Company Common Stock is the "Per Share Representative Amount Distribution." Each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations, responsibilities or Liabilities whatsoever to the Company Equityholders with respect to the distribution to the Company Equityholders by the Representative of all or any portion of the Representative Amount. (f) In the event the Representative makes, or causes to be made, any payment to any holder of Company Options after the Closing, including with respect to the Per Share Adjustment Distribution, the Per Share Representative Amount Distribution, or the Per Share Escrow Distribution, the Buyer shall, and shall cause the Surviving Corporation and its Subsidiaries to, provide the Representative with all reasonable cooperation requested by it in connection with any such payment, including in connection with any calculations of amounts to be withheld from such payments and any matters related thereto; provided, each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations or responsibilities whatsoever to make such payments.

The Representative. The Holder (aon the Holder’s own behalf and on behalf of its successors and assigns) The board of directors hereby irrevocably designates, empowers and appoints the Representative as the attorney-in-fact for and on behalf of the Company has determined that it Holder, with full power and authority to represent the Holder and his, her or its successors with respect to any and all actions and make any and all decisions required or permitted to be taken by such Holder under the Merger Agreement or any Ancillary Agreement to which any Stockholder is desirable a party, including the exercise of the power to designate (i) resolve any Dispute Notices with respect to the Final Closing Statement or any Earn-Out Statement, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (iii) resolve any indemnification claims and (iv) take all actions necessary in the judgment of the Representative for the accomplishment of the other terms, conditions and limitations of the Merger Agreement, the Ancillary Agreements and any transactions contemplated herein and therein. Accordingly, the Representative has the authority and power to act on behalf of the Company Equityholders for certain limited purposes, as described herein. By virtue of adoption of this Agreement by the Company Equityholders, and without further action by any Company Equityholder, Madison Dearborn Capital Partners V-A, L.P. is hereby irrevocably appointed, authorized and empowered to act as the initial "Representative", and execution of a written consent approving the transactions contemplated hereby by a Company Equityholder shall, Holder with respect to the maximum extent permitted under applicable Law, constitute irrevocable ratification and approval of such designation Merger Agreement or any Ancillary Agreement to which any Stockholder is a party. The Holder will be bound by such Company Equityholder and authorization of the Representative to serve in such capacity, and shall also constitute a reaffirmation, approval, acceptance, and adoption of, and an agreement to comply with and perform, all of the acknowledgments and agreements made actions taken by the Representative on behalf in connection with the Merger Agreement and Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. The Holder hereby accepts and acknowledges the following: · that such agency may be changed with respect to the Representative by the majority of the Company Equityholders in this Agreement Stockholders represented thereby; provided, however, that the Representative may not be removed unless any such majority agrees to such removal and to the other agreements entered into in connection herewith (including identity of a substituted agent reasonably acceptable to Parent; · the Escrow Agreement). The Representative may resign at any time and for any reason by providing written notice of his intent to resign to each Stockholder, which resignation shall be effective upon the earlier of (i) thirty (30) calendar days following delivery of such written notice or (ii) the appointment of a successor representative, reasonably acceptable to Parent, by the relevant majority; · No bond shall be required of the Representative and the Representative may be removed only by the vote of Persons who collectively owned more than fifty percent (50%) of the outstanding shares of Company Common Stock as of immediately prior to the Closing (the "Majority Holders"). The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, incapacity, illness, bankruptcy, dissolution, or other inability to act of receive any of the Company Equityholders. In the event that the Representative has resigned or been removed, a new Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal or appointment of a Representative shall be delivered by the Representative to the Buyer promptly after such action is taken. (b) The Representative shall have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other agreement entered into in connection herewith (including the Escrow Agreement) and in connection therewith, shall be entitled to take such actions as the Representative deems appropriate in compensation for its sole discretionservices; provided, that the Representative shall have no obligation to act on behalf of the Company Equityholders. The Buyer and the Escrow Agent shall be entitled to rely on the actions taken by the Representative without independent inquiry into the capacity of the Representative to so act and none of the Buyer, the Merger Sub, the Surviving Corporation and the Escrow Agent shall have any obligations, responsibilities, or Liabilities whatsoever to the Company Equityholders with respect to any claim or Action by any Company Equityholder against the Representative. All actions, notices, communications, and determinations by the Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Company Equityholders. · The Representative shall not have, by reason of this Agreement, be liable to the Stockholders for any fiduciary relationship in respect of any other Company Equityholder. Neither act done or omitted under the Merger Agreement as the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives shall have any Liability to the Company Equityholders with respect to actions taken or omitted to be taken by the Representative while acting in such capacity (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), except for any actions, or action omitted to be taken, which are finally determined to constitute gross negligence or willful misconduct by the Representative. The Representative shall at all times be entitled to rely on any directions received from the Majority Holders; provided, that the Representative shall not be required to follow any such direction, good faith and shall be under no obligation to take any action in its capacity as Representative based upon any such direction. (c) The Representative shall be entitled to engage such counsel, accountants, experts, and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence exercise of bad faith reasonable judgment, even if such act or omission constitutes negligence on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Representative (for itself and its direct or indirect officers, directors, partners, managers, employees, agents and representatives) shall be entitled to full reimbursement for all reasonable expenses, disbursements, and advances (including fees and disbursements of its counsel, accountants, experts, and other agents and consultants) incurred by the Representative in such capacity (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), and to full indemnification against any Loss, Liability, or expense arising out of actions taken or omitted to be taken in its capacity as Representative (except for any Loss, Liability, or expense which is finally determined was primarily caused by the gross negligence or willful misconduct of the Representative), including the costs and expenses of investigation and defense of claims, from any Company Equityholder. For the avoidance of doubt, neither the Buyer, the Company, nor any of their respective Subsidiaries shall have any reimbursement obligations under this Section 6.09(c). (d) Pursuant to Section 1.10(e), the Buyer shall pay over to the Representative at the Closing an amount in cash equal to the Representative Amount. ; · The Representative shall deposit only have the duties expressly stated in the Merger Agreement and shall have no other duty, express or implied; · The Representative may engage attorneys, accountants and other professionals and experts and pay for such funds into services by seeking reimbursement from the Stockholders; · The Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such accounts, or otherwise invest such funds, in any manner it may reasonably determineprofessionals, and in no event shall the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives have any Liability to the Company Equityholders with respect to such funds or the manner of their investment, except for any action, or action omitted to be taken, by the Representative which is finally determined to constitute gross negligence or willful misconduct by the Representative. Such funds shall be a non-exclusive source of recovery for the Representative for any expenses, disbursements, or advances (including fees and disbursements of counsel, accountants, experts, and other agents and consultants) incurred by the Representative in its capacity as such (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), or for any Loss, Liability, or other expense incurred by the Representative or otherwise arising out of any action taken by it the Representative based on such reliance shall be deemed conclusively to have been taken in its capacity as such (except for good faith and in the exercise of reasonable judgment; and · The Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any Lossloss, Liability, liability or expense which is finally determined incurred on the part of the Representative (so long as the Representative was primarily caused by acting in good faith in connection therewith) and arising out of or in connection with the gross negligence acceptance or willful misconduct administration of the Representative). In addition to ’s duties under the Representative AmountMerger Agreement, including the Representative shall have the power reasonable fees and authority to set aside and retain additional funds otherwise payable to Company Equityholders pursuant to this Agreement to satisfy such obligations. (e) From time to time, the Representative may elect to distribute to the Company Equityholders all or expenses of any portion of the Representative Amount, together with any interest or earnings thereon. If the Representative so elects, it shall pay over (or cause to be paid over) to each Company Equityholder an amount equal to (i) the aggregate amount then being distributed legal counsel retained by the Representative, multiplied by (ii) such Company Equityholder's Percentage Interest; provided, that, for any amount payable to a holder of Company Options pursuant to this Section 6.09(e), the Representative shall pay over to each holder of Company Options the amount that such holder is entitled to pursuant to this Section 6.09(e), less any applicable withholding Taxes pursuant to Section 1.12(g). The aggregate amount distributable pursuant to this Section 6.09(e) with respect to a share of Company Common Stock is the "Per Share Representative Amount Distribution." Each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations, responsibilities or Liabilities whatsoever to the Company Equityholders with respect to the distribution to the Company Equityholders by the Representative of all or any portion of the Representative Amount. (f) In the event the Representative makes, or causes to be made, any payment to any holder of Company Options after the Closing, including with respect to the Per Share Adjustment Distribution, the Per Share Representative Amount Distribution, or the Per Share Escrow Distribution, the Buyer shall, and shall cause the Surviving Corporation and its Subsidiaries to, provide the Representative with all reasonable cooperation requested by it in connection with any such payment, including in connection with any calculations of amounts to be withheld from such payments and any matters related thereto; provided, each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations or responsibilities whatsoever to make such payments.