Common use of Equityholders’ Representative Clause in Contracts

Equityholders’ Representative. (i) Each Equityholder hereby authorizes, directs and appoints (and each other holder of Company Capital Stock pursuant to the terms of such Stockholder’s Transmittal Letter and the Joinder Agreement and each other Optionholder pursuant to the terms of such Optionholder’s Option Cancellation Agreement shall authorize direct and appoint) Actua USA Corporation to act as sole and exclusive agent, attorney-in-fact and representative of the Equityholders (the “Equityholders’ Representative”) and authorizes and directs the Equityholders’ Representative to (A) take any and all actions (including executing and delivering any documents, incurring any costs and expenses on behalf of the Equityholders and making any and all determinations) which may be required or permitted by this Agreement to be taken by the Equityholders, (B) exercise such other rights, power and authority, as are authorized, delegated and granted to the Equityholders’ Representative pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement, any Transmittal Letter or any Option Cancellation Agreement, and (C) exercise such rights, power and authority as are incidental to the foregoing. Notwithstanding the foregoing, the Equityholders’ Representative shall have no obligation to act on behalf of the Equityholders, except as provided herein, in the Escrow Agreement, in the Paying Agent Agreement and the documents contemplated hereby and thereby. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Equityholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each Equityholder, and such Equityholder’s successors, as if such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such holder’s capacity and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action of the Equityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement are waived. The powers, immunities and rights to indemnification granted to the Equityholders’ Representative Group (as defined below) hereunder (x) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Equityholder and shall be binding on any successor thereto and (y) shall survive the delivery of an assignment by any Equityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.

Equityholders’ Representative. (ia) Each Equityholder hereby authorizesThe Equityholders, directs by the approval and appoints (and each other holder adoption of Company Capital Stock pursuant to the terms of such Stockholder’s Transmittal Letter and the Joinder this Agreement and each other Optionholder pursuant to the terms without any further action of such Optionholder’s Option Cancellation Agreement shall authorize direct and appoint) Actua USA Corporation to act as sole and exclusive agent, attorney-in-fact and representative any of the Equityholders (or the “Equityholders’ Representative”) and authorizes and directs Company, hereby appoint the Equityholders’ Representative as agent and attorney in fact for the Company and each Equityholder, and authorize the Equityholders’ Representative (i) to take all action necessary to consummate the Merger and the other transactions contemplated by this Agreement and the Escrow Agreement, or the defense and/or settlement of any claims for which the Equityholders may be required to indemnify Parent or any other Indemnified Party pursuant to Article VIII, (Aii) to give and receive all notices required to be given to the Equityholders’ Representative under this Agreement, the Escrow Agreement or the Stockholder Related Agreements, (iii) to review, negotiate and authorize delivery to Parent of the General Escrow Property and the Designated Escrow Property in satisfaction of claims by Parent and set off of Milestone Payments pursuant to Section 8.6, (iv) object to such claims pursuant to this Agreement, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating to this Agreement, or the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Equityholder or necessary in the judgment of the Equityholders’ Representative for the accomplishment of the foregoing and all actions of the other terms, conditions and limitations of this Agreement, (including executing vi) consult with legal counsel, independent public accountants and delivering any documentsother experts selected by it, incurring any costs solely at the cost and expenses expense of the Equityholders and (vii) to make decisions on behalf of the Equityholders and making take any and all determinations) which may be required or permitted by this Agreement additional action as is contemplated to be taken by or on behalf of the EquityholdersEquityholders by the terms of this Agreement or the Escrow Agreement, including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims, Notices of Third-Party Claims and Notices of Direct Claims and (B) exercise such other rights, power and authority, as are authorized, delegated and granted to the Equityholders’ Representative pursuant amendments to this Agreement, the Escrow AgreementAgreement or the Stockholder Related Agreements (other than the Non-Competition Agreements), provided that the Paying Agent AgreementEquityholders’ Representative shall not be authorized to (1) receive notice of, or take action on behalf of the applicable Indemnifying Party in the event that recourse is being sought hereunder directly from such Indemnifying Party, (2) agree to make any Transmittal Letter Indemnifying Party directly liable for any Losses in respect of a claim for indemnification that is being sought hereunder directly from such Indemnifying Party or (3) treat any Option Cancellation Agreement, and of the Equityholders in a manner that is different or disproportionate from one another (C) exercise such rights, power and authority as are incidental to the foregoing“Limits on Authority”). Notwithstanding the foregoing, the Equityholders’ Representative shall have no obligation to act on behalf of the Equityholders, except as expressly provided herein, herein and in the Escrow Agreement, in the Paying Agent Agreement and the documents contemplated hereby and thereby. Any such actions taken, exercises of rights, power or authorityEngagement Agreement, and any decision or determination made by the Equityholders’ Representative consistent therewithfor purposes of clarity, shall be absolutely and irrevocably binding on each Equityholder, and such Equityholder’s successors, as if such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such holder’s capacity and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action there are no obligations of the Equityholders’ Representative taken in good faith under this Agreement any ancillary agreement, schedule, exhibit or the Escrow Agreement are waivedDisclosure Schedule. The powersPerson serving as the Equityholders’ Representative may be removed or replaced from time to time, or if such Person resigns from its position as the Equityholders’ Representative, then a successor may be appointed, by the holders of a majority in interest of the aggregate value of property then held in the General Escrow Fund upon not less than thirty (30) days’ prior written notice to Parent. The immunities and rights to indemnification granted to shall survive the resignation or removal of the Equityholders’ Representative Group (as defined below) hereunder (x) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Equityholder and shall be binding on any successor thereto and (y) shall survive the delivery of an assignment by any Equityholder member of the whole or Advisory Group and the Closing and/or any fraction termination of his, her or its interest in this Agreement and the Escrow FundAgreement.

Equityholders’ Representative. (ia) Each Equityholder hereby authorizes, directs Effective upon and appoints (by virtue of the vote of the Shareholders approving and each other holder of Company Capital Stock pursuant to the terms of such Stockholder’s Transmittal Letter adopting this Agreement and the Joinder Agreement Merger, and each other Optionholder pursuant to without any further act of any of the terms Indemnitors, the Equityholders’ Representative shall be hereby appointed as the representative of such Optionholder’s Option Cancellation Agreement shall authorize direct the Indemnitors and appoint) Actua USA Corporation to act as sole and exclusive agent, the attorney-in-fact and representative agent for and on behalf of each Indemnitor with respect to (i) any claims by any Indemnified Party against the Equityholders Escrow Fund under Articles 2 and 11 of this Agreement and (ii) any amendments to the “Equityholders’ Representative”) and authorizes and directs the Escrow Agreement. The Equityholders’ Representative hereby accepts such appointment. The Equityholders’ Representative shall have the authority to (A) take any and all actions (including executing and delivering make any documents, incurring any costs and expenses on behalf of the Equityholders and making any and all determinations) which may be decisions required or permitted by this Agreement to be taken by the Equityholders’ Representative under the Escrow Agreement and this Agreement, including the exercise of the power to (iii) authorize the payment of all or any part of the Escrow Amount, (Biv) exercise such other rightsagree to, power negotiate, enter into settlements and authoritycompromises of, as are authorizedcommence any suit, delegated action or proceeding, demand arbitration of, and granted comply with orders of courts or awards of arbitrators with respect to, claims by any Indemnified Party against the Escrow Fund under Articles 2 and 11 of this Agreement, (v) arbitrate, litigate, resolve, settle or compromise any dispute that may arise pursuant to the Escrow Agreement and (vi) take all actions necessary in the judgment of the Equityholders’ Representative pursuant to this Agreement, for the Escrow Agreement, the Paying Agent Agreement, any Transmittal Letter or any Option Cancellation Agreement, and (C) exercise such rights, power and authority as are incidental to accomplishment of the foregoing. Notwithstanding the foregoing, the The Equityholders’ Representative shall will have no obligation sole authority and power to act on behalf of each Indemnitor with respect to the disposition, settlement or other handling of all claims against the Escrow Fund under this Agreement and all related rights or obligations of the Indemnitors arising under this Agreement. The Equityholders, except as provided herein, in ’ Representative will also have sole authority and power to act on behalf of each Indemnitor with respect to any amendments to the Escrow Agreement, in the Paying Agent Agreement and the documents contemplated hereby and thereby. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Equityholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each Equityholder, and such Equityholder’s successors, as if such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such holder’s capacity and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action of the Equityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement are waived. The powers, immunities and rights to indemnification granted to the Equityholders’ Representative Group (as defined below) hereunder (x) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Equityholder and shall be binding on any successor thereto and (y) shall survive the delivery of an assignment by any Equityholder of the whole or any fraction of his, her or its interest in the Escrow Fund.

Equityholders’ Representative. (ia) Each Equityholder hereby authorizes, directs By virtue of their adoption of this Agreement and appoints (and each other holder their approval of Company Capital Stock pursuant to the principal terms of the Merger, effective only upon the Effective Time, the Company Stockholders have approved Xxxxxxx X. Xxxxxxx (such Stockholder’s Transmittal Letter person and the Joinder Agreement and each other Optionholder pursuant to the terms of such Optionholder’s Option Cancellation Agreement shall authorize direct and appoint) Actua USA Corporation to act as sole and exclusive agent, attorney-in-fact and representative of the Equityholders (any successor or successors being the “Equityholders’ Representative”) to act as the initial representative of the Equityholders, and authorizes and directs the Equityholders’ Representative shall be authorized to (A) take any and all actions (including executing and delivering any documents, incurring any costs and expenses act on behalf of the Equityholders and making to take any and all determinations) which may be actions required or permitted by this Agreement to be taken by the Equityholders’ Representative under this Agreement, including with respect to any claims (Bincluding the settlement thereof) exercise such other rights, power made by a Parent Indemnified Party for indemnification pursuant to Article X and authority, as are authorized, delegated and granted with respect to any actions to be taken by the Equityholders’ Representative pursuant to this Agreementthe terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize a payment of the Escrow AgreementFund to a Parent Indemnified Party, the Paying Agent Agreement(ii) negotiate, any Transmittal Letter or any Option Cancellation Agreemententer into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification and (Ciii) exercise such rights, power and authority as are incidental to take all actions necessary in the judgment of the Equityholders’ Representative for the accomplishment of the foregoing). Notwithstanding the foregoingIn all matters relating to Article X, the Equityholders’ Representative shall have no obligation be the only party entitled to act on behalf assert the rights of the Equityholders, except as provided herein, in the Escrow Agreement, in the Paying Agent Agreement and the documents contemplated hereby and thereby. Any such actions taken, exercises of rights, power or authorityCompany Stockholders, and any decision or determination made by the Equityholders’ Representative consistent therewith, shall perform all of the obligations of the Company Stockholders hereunder. The Parent Indemnified Parties shall be absolutely entitled to rely on all statements, representations and irrevocably binding on each Equityholder, decisions of the Equityholders’ Representative. The Equityholders’ Representative shall not be entitled to amend this Agreement or take any actions relating to this Agreement prior to the Effective Time. The Equityholders’ Representative may resign upon not less than twenty (20) business days’ prior written notice to Parent and such Equityholder’s successors, as if such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination the Equityholders. The Equityholders who are entitled to receive a majority-in-interest of the Escrow Fund may remove the Equityholders’ Representative from time to time upon not less than twenty (20) business days’ prior written notice to Parent. Any vacancy in such holder’s capacity and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action position of the Equityholders’ Representative taken in good faith under this Agreement or may be filled by the approval of the holders of the Equityholders who are entitled to receive a majority-in-interest of the Escrow Agreement are waivedFund. The powers, immunities and rights to indemnification granted to the Any successor Equityholders’ Representative Group (as defined below) hereunder (x) are coupled with an interest and shall be irrevocable and survive the deathacknowledge in writing to Parent his, incompetence, bankruptcy her or liquidation of any Equityholder and shall be binding on any successor thereto and (y) shall survive the delivery of an assignment by any Equityholder of the whole or any fraction its acceptance of his, her or its interest in appointment and obligations as Equityholders’ Representative. If following the Escrow Fundremoval of the Equityholders’ Representative a successor Equityholders’ Representative has not been appointed within thirty (30) business days from a request by Parent, Parent shall have the right to appoint an Equityholders’ Representative to fill any vacancy.

Equityholders’ Representative. (ia) Each Equityholder By virtue of the approval of the Merger and this Agreement by the Equityholders and without any further action of any of the Equityholders or the Company, the Company hereby authorizes, directs irrevocably constitutes and appoints (Fortis Advisors LLC as the Equityholders’ sole, exclusive, true and each other holder of Company Capital Stock pursuant to the terms of such Stockholder’s Transmittal Letter lawful agent and the Joinder Agreement and each other Optionholder pursuant to the terms of such Optionholder’s Option Cancellation Agreement shall authorize direct and appoint) Actua USA Corporation to act as sole and exclusive agent, attorney-in-fact and representative of the Equityholders (the “Equityholders’ Representative”) ), and authorizes each Equityholder irrevocably constitutes and directs appoints the Equityholders Representative as his/her/its sole, exclusive, true and lawful agent and attorney-in-fact, with full power of substitution to act in such Equityholder’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement and the Escrow Agreement, and to act on such Equityholder’s behalf in any dispute, litigation or arbitration involving this Agreement and the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents, on such Equityholder’s behalf, as the Equityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including the power: (i) to (A) take execute and deliver this Agreement and the Escrow Agreement and any and all actions amendments, waivers or modifications hereof and thereof; (including executing ii) to waive any condition to the obligations of such Equityholder to consummate the transactions contemplated by this Agreement, the Escrow Agreement and delivering any the Equityholders’ Representative Engagement Agreement; (iii) to execute and deliver all ancillary agreements, certificates and documents, incurring any costs and expenses to make representations and warranties therein, on behalf of such Equityholder that the Equityholders and making any and all determinations) which may be required Equityholders’ Representative deems necessary or permitted appropriate in connection with the consummation of the transactions contemplated by this Agreement, the Escrow Agreement to be taken by and the Equityholders’ Representative Engagement Agreement; (iv) with respect to any claims for indemnification made by Parent hereunder, agree to, object to, negotiate, enter into settlements and compromises of, and demand litigation of and comply with orders and awards of courts with respect to such claims; (Bv) exercise with respect to any disputes regarding Milestone Events or otherwise hereunder, agree to, object to, negotiate, enter into settlements and compromises of, and demand litigation of and comply with orders and awards of courts and arbitrators with respect to such other rights, power disputes; and authority, (vi) to do or refrain from doing any further act or deed on behalf of such Equityholder as are authorizedis assigned, delegated and granted or charged to the Equityholders’ Representative pursuant or that the Equityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, the Escrow Agreement and the Equityholders’ Representative Engagement Agreement, the Paying Agent Agreement, any Transmittal Letter or any Option Cancellation Agreement, as fully and (C) exercise completely as such rights, power and authority as are incidental to the foregoingEquityholder could do if personally present. Notwithstanding the foregoing, the Equityholders’ Representative shall have no obligation to act on behalf of the Equityholders, except as expressly provided herein, in the Escrow Agreement, in the Paying Agent Agreement and the documents contemplated hereby and thereby. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by in the Equityholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each EquityholderEngagement Agreement, and such Equityholder’s successorsfor purposes of clarity, as if such holder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such holder’s capacity and all defenses which may be available to any Equityholder to contest, negate or disaffirm the action there are no obligations of the Equityholders’ Representative taken in good faith under any ancillary agreement, schedule, exhibit or the Company Disclosure Letter, other than pursuant to Exhibit D. All such actions set forth or described in this Section 9.11(a) will be deemed to be facts ascertainable outside this Agreement or the Escrow Agreement are waived. The powers, immunities and rights to indemnification granted to the Equityholders’ Representative Group (as defined below) hereunder (x) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Equityholder and shall will be binding on any successor thereto and (y) shall survive the delivery of an assignment by any Equityholder of the whole or any fraction of his, her or its interest in the Escrow FundEquityholders.