Common use of Equityholder Representative Clause in Contracts

Equityholder Representative. (a) Each SFC Equityholder, by virtue of his, her or its execution and delivery of this Agreement, hereby irrevocably nominates, constitutes and appoints Xxxx as the Equityholder Representative and as the agent, agent for service of process and true and lawful attorney-in-fact of such SFC Equityholder with full power of substitution, to act in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and the transactions contemplated by this Agreement. Such powers shall include, without limitation, the taking by the Equityholder Representative of any and all actions and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents and to take any and all actions that the Equityholder Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; and (iv) execute amendments (and additional documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as the Equityholder Representative.

Equityholder Representative. (a) Each SFC EquityholderThe Equityholder Representative shall have the power and authority to take any of the following actions on behalf of the Equityholders: (i) to give and receive notices, by virtue communications and consents under this Agreement (including the Closing Payment Certificate, the Pro Forma Initial Consideration Payout Spreadsheet and any Additional Payout Spreadsheet) and the Exchange Agent Agreement; (ii) to receive and facilitate distribution of hispayments pursuant to this Agreement and the Exchange Agent Agreement; (iii) to waive, her modify or its execution and delivery amend any provision of this Agreement and the Exchange Agent Agreement; (iv) to assert any claim or institute any Action; (v) in the Equityholder Representative’s sole discretion, hereby irrevocably nominatesto investigate, constitutes and appoints Xxxx as defend, contest or litigate any Action initiated by any Person against the Equityholder Representative and as the agent, agent for service of process and true and lawful attorney-in-fact of such SFC or any Equityholder with full power of substitution, to act in the name, place and stead of such SFC Equityholder with respect to all matters under this Agreement and the transactions contemplated by this Exchange Agent Agreement. Such powers shall include, without limitation, the taking by as the Equityholder Representative Representative; (vi) in the Equityholder Representative’s sole discretion, to receive process on behalf of any Equityholder in any such Action; (vii) to negotiate, enter into settlements and compromises of, resolve and comply with orders of courts and awards of arbitrators or other Third Party intermediaries with respect to any disputes arising under this Agreement and the Exchange Agent Agreement; (viii) in the Equityholder Representative’s sole discretion, to negotiate and enter into settlements with respect to any indemnification claims arising under this Agreement and the Exchange Agent Agreement; (ix) in the Equityholder Representative’s sole discretion, to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement and the Exchange Agent Agreement; (x) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, assignments, letters and other writings; and (xi) in the Equityholder Representative’s sole discretion, engage, at the Equityholders’ expense, attorneys, accountants, financial and other advisors, paying or exchange agents and other persons necessary or appropriate for the accomplishment of the foregoing, and, in general, to do any and all actions and the making of any decisions required or permitted to be taken or made by any SFC Equityholder under this Agreement, including the exercise of the power to: (i) execute, deliver, acknowledge, certify and file (in the name of any or all of such SFC Equityholders or otherwise) any and all documents things and to take any and all actions action that the Equityholder Representative, in the Equityholder Representative’s sole discretion may be necessary or proper or convenient in connection with or to carry out the activities described in this Agreement and the Exchange Agent Agreement. All such actions taken by the Equityholder Representative mayshall be deemed to be facts ascertainable outside of this Agreement for purposes of calculating the Parent Merger Shares and/or any Additional Payments, as applicable, or for any other purpose hereunder, and shall be binding on all Equityholders. The Equityholders agree that, if deemed necessary by the Equityholder Representative, in his or her sole discretion, determine to be necessary, desirable or appropriate in connection with any matter covered in Section 2.06, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of then the Equityholder Representative Holdback may request that Parent fund the Equityholder Representative Expense Fund with such additional funds as are necessary to return the balance in the Equityholder Representative Expense Fund to the Equityholder Representative Expense Amount; and , with such amounts to be deducted from any unpaid Earnout Consideration, after any applicable offset under ARTICLE IX, by providing written instruction to Parent (iv) execute amendments (and additional documents related theretowith simultaneous written notice to the Equityholders) to this Agreement on behalf of such SFC Equityholder generally consistent with transfer the transaction contemplated hereby, the execution thereof shall be conclusive evidence of such determination. Xxxx hereby accepts his appointment as applicable amount to the Equityholder RepresentativeRepresentative Expense Fund by wire transfer or immediately available funds. Parent shall have no Liability to any Equityholder for any amount disbursed to the Equityholder Representative Expense Fund pursuant to this Section 8.01(a).

Equityholder Representative. (a) Each SFC EquityholderBy execution hereof, by virtue of hiseach Equityholder appoints and designates Jon X. Xxtlxx xx its, his or her or its execution and delivery of representative under this AgreementAgreement (hereafter referred to, hereby irrevocably nominatesin such capacity, constitutes and appoints Xxxx together with any successor appointed pursuant to Section 11.18(e), as the "Equityholder Representative and Representative"), with full power of substitution as the agent, agent for service of process and such Equityholder's true and lawful agent and attorney-in-fact of such SFC Equityholder with full power of substitution, to act and authority in the such Equityholder's name, place and stead of (i) to execute such SFC documents and take such actions as such Equityholder Representative, in his sole discretion, deems necessary or advisable in connection with investigating or defending any claim for indemnification or any third party claim for which indemnification is sought hereunder, other than claims brought under Sections 3.1 and 3.2 hereof or claims with respect to all matters under this Agreement any Liability of Newco for Taxes payable by Newco, including the execution of any settlement agreements and releases for and on behalf of the Equityholders, (ii) to execute such documents and take such actions as such Equityholder Representative, in his sole discretion, deems necessary or advisable in connection with the preparation of the Statement of Tangible Net Book Value and the transactions contemplated resolution of any dispute relating thereto, (iii) to execute such documents and take such actions as such Equityholder Representative, in his sole discretion deems necessary or advisable in connection with carrying out the provisions of Section 6.10 hereof except with respect to Newco and Taxes payable by this Agreement. Such powers shall includeit, and (iv) to execute, swear to, acknowledge, deliver, file and record in the appropriate public offices all certificates, documents and other instruments (including, without limitation, the taking by this Agreement and any amendments thereto) which the Equityholder Representative deems appropriate or necessary in the exercise of his authority above. By execution hereof, each Newco Shareholder other than Carlyle Partners 70 72 II, L.P. appoints and designates Carlyle Partners II, L.P., with full power of substitution as such Newco Shareholder's true and lawful agent and attorney-in-fact with full power and authority in such Newco Shareholder's name, place and stead to: (A) negotiate, determine and settle all matters arising under this Agreement or in connection with any and all actions and the making of document related hereto, including without limitation any decisions action required or permitted to be taken by the Newco Shareholders or made by any SFC Equityholder of them under, or the resolution of any dispute or other matter arising under this Agreement; (B) represent each Newco Shareholder at the Closing and in connection with all transactions contemplated hereby; and (C) execute, including on behalf of such Newco Shareholder, any closing certificates, any side letters and agreements and any waivers of this Agreement or any agreements contemplated hereby which Carlyle Partners II, L.P., in its sole discretion, deems necessary or advisable for the exercise purpose of effectuating the transactions contemplated hereby. By execution hereof, each Equityholder other than the Newco Shareholders further appoints and designates the Equityholder Representative, with full power of substitution as such Equityholder's true and lawful agent and attorney-in-fact with full power and authority in such Equityholder's name, place and stead to: (iA) negotiate, determine and settle all matters arising under this Agreement or in connection with any document related hereto, including without limitation any action required or permitted to be taken by the Equityholders or any of them under, or the resolution of any dispute or other matter arising under this Agreement; (B) represent each Equityholder at the Closing and in connection with all transactions contemplated hereby; and (C) execute, deliver, acknowledge, certify and file (in the name of any or all on behalf of such SFC Equityholders Equityholder, any closing certificates, any side letters and agreements and any waivers of this Agreement or otherwise) any and all documents and to take any and all actions that the agreements contemplated hereby which such Equityholder Representative mayRepresentative, in his sole discretion, determine deems necessary or advisable for the purpose of effectuating the transactions contemplated hereby. Notwithstanding anything to be necessarythe contrary herein, desirable or appropriate in connection with any matter covered in Section 2.06however, Section 2.07, Section 2.08, or Section 9.04 or any indemnification claim under Article X (including negotiating, entering into compromises or settlements of and resolving disputes with respect to any such matters covered in Section 2.06, Section 2.07 or Section 2.08); (ii) give and receive notices and communications under this Agreement; (iii) authorize the payment of fees, expenses and distributions including, without limitation, any fees, expenses or distributions out of the Equityholder Representative Holdback Amount; shall not have the power to take any action or actions which would require payments which, in the aggregate, exceed $5,000,000 other than those contemplated by this Agreement and (iv) execute amendments (and additional the documents related thereto) to this Agreement on behalf of such SFC Equityholder generally consistent with the transaction contemplated herebyhereto. In his capacity as such, the execution thereof Equityholder Representative shall be conclusive evidence accord all of such determination. Xxxx hereby accepts his appointment the Equityholders equal treatment, except to the extent otherwise appropriate to reflect the differing rights and interests of the Selling Members, the Newco Shareholders and the Optionholders, each considered as the Equityholder Representativea class.