Common use of Stockholder Representative Clause in Contracts

Stockholder Representative. The Holders by virtue of the approval of this Agreement, (i) shall be deemed to have consented to the deposit of the Reconciliation Deposit into the Reconciliation Fund pursuant to the terms of the Reconciliation Agreement, (ii) shall be deemed to have agreed that the Reconciliation Fund will be subject to provisions of Section 2.6, and (iii) shall be deemed to have irrevocably constituted and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent and attorney-in-fact to enter into the Reconciliation Agreement, to exercise all or any of the powers, authority and discretion conferred on the Stockholder Representative under this Agreement or the Reconciliation Agreement, to waive or amend any terms and conditions of the Reconciliation Agreement, to give and receive notices on their behalf and to be their exclusive representative to the extent of their respective interests in the Reconciliation Fund with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by the Reconciliation Agreement, and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Stockholder Representative, in connection with its obligations under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and duly authorized, nor for any other action or inaction in the absence of his or her own gross negligence or willful misconduct. In all questions arising under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, the Stockholder Representative may rely on the advice or opinion of counsel and independent accountants satisfactory to it, and for anything done, omitted or suffered in good faith by the Stockholder Representative based on such advice, the Stockholder Representative shall not be liable to any Person, including, without limitation, any Holder in its capacity as such. The Stockholder Representative shall have no duties or responsibilities other than those expressly set forth in this Agreement or the Reconciliation Agreement. The Stockholder Representative, acting as such under this Agreement or the Reconciliation Agreement, is not charged with knowledge of or any duties or responsibilities under, and shall not be bound by, any other document or agreement. The Stockholder Representative shall be entitled to be reimbursed, from the amounts available in the Reconciliation Fund, for all reasonable out-of-pocket documented charges and expenses incurred in good faith by the Stockholder Representative in connection with the performance of its duties as Stockholder Representative under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement or the Reconciliation Agreement, including, without limitation, attorneys fees, accountants’ fees and any amounts arising in respect of its indemnification obligations pursuant to Section 7(a) of the Reconciliation Agreement. If the Stockholder Representative shall be unable or unwilling to serve in such capacity (i) prior to the Effective Time, his or her successor shall be named by the Board of Governors or (ii) after the Effective Time, his or her successor shall be named by those Persons who held a majority of the Class B Shares immediately prior to the Effective Time, and, in either case, such successor shall serve and exercise the powers of Stockholder Representative hereunder.

Stockholder Representative. The Holders (a) By approving the Merger by virtue written consent, or by execution of the approval a Letter of this AgreementTransmittal or an Option Holder Letter of Transmittal, (i) each Company Escrow Party, shall be deemed to have consented to the deposit of the Reconciliation Deposit into the Reconciliation Fund irrevocably authorized and appointed Shareholder Representative Services, LLC, and any replacement representative appointed pursuant to Section 1.10(b) (the terms “Stockholder Representative”), with full power of the Reconciliation Agreementsubstitution and resubstitution, (ii) shall be deemed to have agreed that the Reconciliation Fund will be subject to provisions of Section 2.6as his, her or its representative and (iii) shall be deemed to have irrevocably constituted and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent and attorney-in-fact and agent to enter into the Reconciliation act in his, her or its name, place and stead with respect to all matters arising in connection with this Agreement, including the power and authority, in his or her sole discretion, to: (i) take any action contemplated to exercise all be taken by the Company Escrow Party under this Agreement, including pursuant to Article VIII, the Escrow Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement, including with respect to any Indemnification Claim pursuant to Article VIII, the Escrow Agreement or any other Operative Document; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, including pursuant to Article VIII, the Escrow Agreement or any other Operative Document. (b) The appointment of the powersStockholder Representative may not be revoked except in accordance with this Section 1.10(b). (i) The Stockholder Representative may be removed as the Stockholder Representative and replaced with another Person by written agreement among a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative may resign at any time upon giving 30 business days’ prior written notice of such resignation to Parent and each Company Escrow Party. In the event of the Stockholder Representative’s death or Disability, authority he or she shall automatically be removed as the Stockholder Representative, without any action on the part of Parent or any Company Escrow Party. (ii) In the event of the Stockholder Representative’s resignation, death or Disability, a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share shall in good faith promptly agree in writing to a replacement Stockholder Representative. If as a result of the Stockholder Representative’s resignation, death, Disability or removal there is no appointed Stockholder Representative at the time of the expiration of any Survival Period set forth in Section 8.1 or at the expiration of any period in which any Parent Indemnified Party is required to provide notice to the Stockholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement or the Escrow Agreement, such period shall be deemed to be extended by the number of calendar days that elapses between the expiration of any such period and discretion conferred the appointment of a replacement Stockholder Representative pursuant to the preceding sentence. (c) Notwithstanding the provisions of Section 1.7, an amount otherwise payable to the Company Escrow Parties equal to the Stockholder Representative Expense Fund will be delivered to the Stockholder Representative. The Stockholder Representative Expense Fund shall be withheld from the Merger Consideration that would otherwise be payable to the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative Expense Fund shall be held by the Stockholder Representative in a segregated client bank account and shall be used solely for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to the terms specified herein or in the Escrow Agreement. The Company Escrow Parties shall not receive interest or other earnings on the Stockholder Representative under this Agreement or Expense Fund and the Reconciliation Agreement, Company Escrow Parties irrevocably transfer and assign to waive or amend any terms and conditions of the Reconciliation Agreement, to give and receive notices on their behalf and to be their exclusive representative to the extent of their respective interests in the Reconciliation Fund with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by the Reconciliation Agreement, and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an any ownership right that they may have in any interest and is irrevocable. The Stockholder Representative, that may accrue on funds held in connection with its obligations under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and duly authorized, nor for any other action or inaction in the absence of his or her own gross negligence or willful misconduct. In all questions arising under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, the Stockholder Representative may rely on the advice or opinion of counsel and independent accountants satisfactory to it, and for anything done, omitted or suffered in good faith by Expense Fund. The Company Escrow Parties acknowledge that the Stockholder Representative based on such is not providing any investment supervision, recommendations or advice, the Stockholder Representative shall not be liable to any Person, including, without limitation, any Holder in its capacity as such. The Stockholder Representative shall have no duties responsibility or responsibilities liability for any loss of principal of the Stockholder Representative Expense Fund other than those expressly set forth as a result of its gross negligence or willful misconduct. As soon as practicable following the date on which funds remaining in this Agreement or the Reconciliation Agreement. The Stockholder RepresentativeEscrow Account, acting as such if any, are to be released to the Company Escrow Parties under this Agreement or the Reconciliation terms of the Escrow Agreement, is not charged with knowledge the Stockholder Representative shall disburse the remaining balance of or any duties or responsibilities underthe Stockholder Representative Expense Fund, and shall not be bound byif any, any other document or agreement. to the Escrow Agent for distribution to the Company Escrow Parties based on each Company Escrow Party’s Pro Rata Share. (d) The Stockholder Representative shall be entitled will incur no liability of any kind with respect to be reimbursed, from the amounts available in the Reconciliation Fund, for all reasonable out-of-pocket documented charges and expenses incurred in good faith any action or omission by the Stockholder Representative in connection with the performance Stockholder Representative’s services pursuant to this Agreement and the Escrow Agreement, except in the event of its duties as liability directly resulting from the Stockholder Representative’s gross negligence, willful misconduct or fraud. The Company Escrow Parties shall indemnify, defend and hold harmless the Stockholder Representative under and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Stockholder Representative pursuant to the terms of this Agreement, in each case as such Representative Loss is incurred or suffered; provided that in the Reconciliation Agreement event it is finally adjudicated that a Representative Loss or any other agreement made in connection with portion thereof was primarily caused by the transactions contemplated by this Agreement gross negligence or the Reconciliation Agreement, including, without limitation, attorneys fees, accountants’ fees and any amounts arising in respect of its indemnification obligations pursuant to Section 7(a) willful misconduct of the Reconciliation Agreement. If Stockholder Representative, the Stockholder Representative shall will reimburse the Company Escrow Parties the amount of such indemnified Representative Loss attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Escrow Parties, any such losses, liabilities or expenses may be unable or unwilling to serve in such capacity recovered by the Stockholder Representative from (i) prior to the Effective Time, his or her successor shall be named by funds in the Board of Governors or Stockholder Representative Expense Fund and (ii) after to the Effective Timeextent the Stockholder Representative Expense Fund has been depleted, his or her successor shall be named by those Persons who held a majority the amounts of the Class B Shares immediately prior Escrow Amount otherwise distributable to the Effective Time, and, Company Escrow Parties pursuant to the terms hereof and the Escrow Agreement at the time of distribution in either case, such successor shall serve and exercise accordance with written instructions delivered by the powers of Stockholder Representative hereunderto the Escrow Agent; provided that while this section allows the Stockholder Representative to be paid from the Stockholder Representative Expense Fund and the Escrow Amount, this does not relieve the Company Escrow Parties from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise.

Stockholder Representative. The Holders (a) By approving the Merger by virtue written consent, or by execution of the approval a Letter of this AgreementTransmittal or an Option Holder Letter of Transmittal, (i) each Company Escrow Party, shall be deemed to have consented to the deposit of the Reconciliation Deposit into the Reconciliation Fund irrevocably authorized and appointed Shareholder Representative Services LLC, and any replacement representative appointed pursuant to Section 1.8(b) (the terms “Stockholder Representative”), with full power of the Reconciliation Agreementsubstitution and resubstitution, (ii) shall be deemed to have agreed that the Reconciliation Fund will be subject to provisions of Section 2.6as his, her or its representative and (iii) shall be deemed to have irrevocably constituted and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent and attorney-in-fact and agent to enter into the Reconciliation act in his, her or its name, place and stead with respect to all matters arising in connection with this Agreement, including the power and authority, in his or her sole discretion, to: (i) take any action contemplated to exercise all be taken by the Company Escrow Party under this Agreement, including pursuant to Article VIII, the Escrow Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement, including with respect to any Indemnification Claim pursuant to Article VIII, the Escrow Agreement or any other Operative Document; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, including pursuant to Article VIII, the Escrow Agreement or any other Operative Document. (b) The appointment of the powersStockholder Representative may not be revoked except in accordance with this Section 1.8(b). (i) The Stockholder Representative may be removed as the Stockholder Representative and replaced with another Person by written agreement among a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative may resign at any time upon giving 30 business days’ prior written notice of such resignation to Parent and each Company Escrow Party. In the event of the Stockholder Representative’s death or Disability, authority he or she shall automatically be removed as the Stockholder Representative, without any action on the part of Parent or any Company Escrow Party. (ii) In the event of the Stockholder Representative’s resignation, death or Disability, a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share shall in good faith promptly agree in writing to a replacement Stockholder Representative. If as a result of the Stockholder Representative’s resignation, death, Disability or removal there is no appointed Stockholder Representative at the time of the expiration of any Survival Period set forth in Section 8.1 or at the expiration of any period in which any Parent Indemnified Party is required to provide notice to the Stockholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement or the Escrow Agreement, such period shall be deemed to be extended by the number of calendar days that elapses between the expiration of any such period and discretion conferred the appointment of a replacement Stockholder Representative pursuant to the preceding sentence. (c) Notwithstanding the provisions of Section 1.7, an amount otherwise payable to the Company Escrow Parties equal to the Stockholder Representative Expense Fund will be delivered to the Stockholder Representative. The Stockholder Representative Expense Fund shall be withheld from the Merger Consideration that would otherwise be payable to the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative Expense Fund shall be held by the Stockholder Representative in a segregated client bank account and shall be used solely for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to the terms specified herein or in the Escrow Agreement. The Company Escrow Parties shall not receive interest or other earnings on the Stockholder Representative under this Agreement or Expense Fund and the Reconciliation Agreement, Company Escrow Parties irrevocably transfer and assign to waive or amend any terms and conditions of the Reconciliation Agreement, to give and receive notices on their behalf and to be their exclusive representative to the extent of their respective interests in the Reconciliation Fund with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by the Reconciliation Agreement, and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an any ownership right that they may have in any interest and is irrevocable. The Stockholder Representative, that may accrue on funds held in connection with its obligations under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and duly authorized, nor for any other action or inaction in the absence of his or her own gross negligence or willful misconduct. In all questions arising under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, the Stockholder Representative may rely on the advice or opinion of counsel and independent accountants satisfactory to it, and for anything done, omitted or suffered in good faith by Expense Fund. The Company Escrow Parties acknowledge that the Stockholder Representative based on such is not providing any investment supervision, recommendations or advice, the Stockholder Representative shall not be liable to any Person, including, without limitation, any Holder in its capacity as such. The Stockholder Representative shall have no duties responsibility or responsibilities liability for any loss of principal of the Stockholder Representative Expense Fund other than those expressly as a result of its gross negligence or willful misconduct. As soon as practicable following the release of the Escrow Amount in full under the terms set forth in this Agreement or herein, the Reconciliation Agreement. The Stockholder Representative, acting as such under this Agreement or the Reconciliation Agreement, is not charged with knowledge of or any duties or responsibilities under, and shall not be bound by, any other document or agreement. The Stockholder Representative shall be entitled disburse the remaining balance of the Stockholder Representative Expense Fund to the Escrow Agent for distribution to the Company Escrow Parties based on each Company Escrow Party’s Pro Rata Share of such remaining balance. (d) The Company Escrow Parties shall indemnify, defend and hold harmless the Stockholder Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be reimbursed, from the amounts available in the Reconciliation Fund, for all reasonable out-of-pocket documented charges and expenses incurred in good faith taken by the Stockholder Representative in connection with pursuant to the performance terms of its duties as Stockholder Representative under this Agreement, in each case as such Representative Loss is incurred or suffered; provided that in the Reconciliation Agreement event it is finally adjudicated that a Representative Loss or any other agreement made in connection with portion thereof was primarily caused by the transactions contemplated by this Agreement gross negligence or the Reconciliation Agreement, including, without limitation, attorneys fees, accountants’ fees and any amounts arising in respect of its indemnification obligations pursuant to Section 7(a) willful misconduct of the Reconciliation Agreement. If Stockholder Representative, the Stockholder Representative shall will reimburse the Company Escrow Parties the amount of such indemnified Representative Loss attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Escrow Parties, any such losses, liabilities or expenses may be unable or unwilling to serve in such capacity recovered by the Stockholder Representative from (i) prior to the Effective Time, his or her successor shall be named by funds in the Board of Governors or Stockholder Representative Expense Fund and (ii) after to the Effective Timeextent the Stockholder Representative Expense Fund has been depleted, his or her successor shall be named by those Persons who held a majority the amounts of the Class B Shares immediately prior Escrow Amount otherwise distributable to the Effective Time, and, Company Escrow Parties pursuant to the terms hereof and the Escrow Agreement at the time of distribution in either case, such successor shall serve and exercise accordance with written instructions delivered by the powers of Stockholder Representative hereunderto the Escrow Agent; provided that while this section allows the Stockholder Representative to be paid from the Stockholder Representative Expense Fund and the Escrow Amount, this does not relieve the Company Escrow Parties from their obligation to promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise.

Stockholder Representative. The Holders (a) By approving this Agreement and the transactions contemplated hereby or by virtue executing and delivering a Letter of the approval of this Transmittal or an Warrant Termination Agreement, (i) each Indemnifying Holder shall be deemed to have consented to the deposit of the Reconciliation Deposit into the Reconciliation Fund pursuant to the terms of the Reconciliation Agreement, (ii) shall be deemed to have agreed that the Reconciliation Fund will be subject to provisions of Section 2.6, and (iii) shall be deemed to have irrevocably constituted authorized and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent such Person’s representative and attorney-in-fact to enter into act on behalf of such Person with respect to this Agreement and the Reconciliation Ancillary Documents, including the Escrow Agreement, and to exercise take any and all actions and make any decisions required or any of the powers, authority and discretion conferred on permitted to be taken by the Stockholder Representative under pursuant to this Agreement or the Reconciliation Ancillary Documents, including the Escrow Agreement, to waive or amend any terms and conditions including the exercise of the Reconciliation Agreement, to power to: (i) give and receive notices on their behalf and communications; (ii) authorize delivery to be their exclusive representative Parent of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Parent pursuant to Section 2.18 or from the extent Indemnification Escrow Fund in satisfaction of their respective interests claims for indemnification made by Parent pursuant to Article VI and Article VIII; (iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts or otherwise handle any other matters described in the Reconciliation Fund Section 2.18; (iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Parent pursuant to Article VI and Article VIII; (v) litigate, arbitrate, resolve, settle or compromise any matter, suit, claim, action claim for indemnification pursuant to Article VI and Article VIII; (vi) execute and deliver all documents necessary or proceeding arising with respect desirable to carry out the intent of this Agreement and any transaction Ancillary Document (including the Escrow Agreement); (vii) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Reconciliation Escrow Agreement); (viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Stockholder Representative agrees in complying with its duties and obligations; and (ix) take all actions necessary or appropriate in the good faith judgment of Stockholder Representative for the accomplishment of the foregoing. Parent shall be entitled to act asdeal exclusively with the Stockholder Representative on all matters relating to this Agreement or the Ancillary Documents (including the Escrow Agreement) (including Article VIII) and shall be entitled to rely conclusively (without further evidence or inquiry of any kind whatsoever) on any document executed or purported to be executed on behalf of any Indemnifying Holder by the Stockholder Representative, and on any other action taken or purported to undertake be taken on behalf of any Indemnifying Holder by the duties Stockholder Representative, as being fully binding upon such Person. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Indemnifying Holders. Any decision or action by the Stockholder Representative hereunder, including any agreement between the Stockholder Representative and responsibilities ofParent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Indemnifying Holders and shall be final, binding and conclusive upon each such agent and attorney-in-factPerson. This No Indemnifying Holder 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 is granted hereby, are independent and severable, are irrevocable and coupled with an interest and is irrevocableshall not be terminated by any act of any one or Stockholders or Optionholders, or by operation of Law, whether by death or other event. (b) The Stockholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Indemnifying Holders according to each Indemnifying Holder’s aggregate Pro Rata Share (the “Majority Holders”); provided, however, in no event shall the Stockholder Representative resign or be removed without the Majority Holders having first appointed a new Stockholder Representative who shall assume such duties immediately upon the resignation or removal of the Stockholder Representative. The In the event of the death, incapacity, resignation or removal of the Stockholder Representative, in connection with its obligations under this Agreementa new Stockholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to Parent, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it such appointment to be genuine effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and duly authorized, nor for any other action or inaction in the absence Surviving Corporation shall be entitled to rely on the decisions and actions of his or her own gross negligence or willful misconduct. In all questions arising under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, prior the Stockholder Representative may rely on the advice or opinion of counsel and independent accountants satisfactory to it, and for anything done, omitted or suffered as described in good faith by the Stockholder Representative based on such advice, the Section 9.01(a) above. (c) The Stockholder Representative shall not be liable to any Person, including, without limitation, any Holder in its capacity as such. The Stockholder Representative shall have no duties or responsibilities other than those expressly set forth in the Indemnifying Holders for actions taken pursuant to this Agreement or the Reconciliation Agreement. The Stockholder Representative, acting as such under this Agreement or the Reconciliation Escrow Agreement, is not charged with knowledge 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 duties act done or responsibilities under, and shall not be bound by, any other document or agreement. The Stockholder Representative shall be entitled to be reimbursed, from the amounts available in the Reconciliation Fund, for all reasonable out-of-pocket documented charges and expenses incurred in good faith by the Stockholder Representative in connection with the performance of its duties as Stockholder Representative under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this Agreement or the Reconciliation Agreement, including, without limitation, attorneys fees, accountants’ fees and any amounts arising in respect of its indemnification obligations omitted pursuant to Section 7(a) the advice of the Reconciliation Agreement. If counsel, accountants and other professionals and experts retained by the Stockholder Representative shall be unable conclusive evidence of good faith). The Indemnifying Holders shall severally (in accordance with their Pro Rata Share and not jointly), indemnify, defend and hold harmless the Stockholder 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 the Stockholder Representative under this Agreement and the Ancillary Documents (including the Escrow Agreement) (the “Representative Losses”), in each case as such Representative Loss is suffered or unwilling 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 the Stockholder Representative, the Stockholder Representative shall reimburse the Indemnifying Holders the amount of such indemnified Representative Loss attributable to serve in such capacity gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied: (i) prior to from the Effective Time, his or her successor shall be named by the Board of Governors or Stockholder Representative Expense Fund; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Stockholder Representative under (i), from the Indemnifying Holders, severally and not jointly (in accordance with their Pro Rata Share). As soon as practicable after the Effective Time, his or her successor shall be named by those Persons who held a majority of date on which the Class B Shares immediately prior to the Effective Time, and, in either case, such successor shall serve and exercise the powers final obligation of Stockholder Representative hereunderunder this Agreement and the Ancillary Documents (including the Escrow Agreement) have been discharged or such other date as the Stockholder Representative deems appropriate, the Stockholder Representative shall pay any amounts remaining in the Stockholder Representative Fund to as set forth in the Escrow Agreement. For U.S. federal income tax purposes, the Stockholder Representative Fund shall be deemed paid to the Indemnifying Holders on the Closing Date; provided, however, that any withholding in respect of such payments to a Indemnifying Holder shall be satisfied from other sources owing to such Indemnifying Holder on the Closing Date.

Stockholder Representative. The Holders (a) By approving the Merger by virtue of the approval of this Agreementwritten consent, (i) each Stockholder, shall be deemed to have consented to the deposit of the Reconciliation Deposit into the Reconciliation Fund irrevocably authorized and appointed Northwest Cloud Co., LLC, and any replacement representative appointed pursuant to Section 1.16(b) (the terms “Stockholder Representative”), with full power of the Reconciliation Agreementsubstitution and resubstitution, (ii) shall be deemed to have agreed that the Reconciliation Fund will be subject to provisions of Section 2.6as his, her or its representative, exclusive agent and (iii) shall be deemed to have irrevocably constituted and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent and attorney-in-fact and agent to enter into the Reconciliation act in his, her or its name, place and stead with respect to all matters arising in connection with this Agreement, including the power and authority, in his or her sole discretion, to: (i) execute and deliver this Agreement in its capacity as the Stockholder Representative, and to exercise all perform the obligations of the Stockholder Representative hereunder and thereunder; (ii) give and receive notices and communications on behalf of the Stockholders pursuant to this Agreement and any other Operative Document; (iii) negotiate, determine, defend and settle, on behalf of the Stockholders, any disputes that may arise under or in connection with this Agreement, including with respect to any adjustment to the Merger Consideration pursuant to Section 1.15 or any Indemnification Claim pursuant to Article VI; (iv) execute any amendments, supplements or waivers in respect of this Agreement or any other Operative Document; (v) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, including pursuant to Section 1.15 and Article VI; (vi) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with the foregoing; (vii) do or refrain from doing any further act or deed on behalf of the powersStockholders which the Stockholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement; and (viii) do all things and perform all acts, authority as contemplated by or deemed advisable by the Stockholder Representative in connection with this Agreement or the other Operative Documents. (b) Notwithstanding the foregoing, the Stockholder Representative shall have no obligation to act on behalf of the Stockholders, except as expressly provided herein or in any other Operative Document. The Stockholder Representative shall be entitled to: (1) rely upon the Merger Consideration Spreadsheet, (2) rely upon any signature believed by it to be genuine, and discretion conferred (3) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Stockholder or other party. All actions taken by the Stockholder Representative under this Agreement or the Reconciliation Agreementshall be binding upon such Stockholder and such Stockholder’s successors as if expressly confirmed and ratified in writing by such Stockholder, to waive or amend any terms and conditions of the Reconciliation Agreement, to give and receive notices on their behalf and to all defenses which may be their exclusive representative available to the extent Stockholders to contest, negate or disaffirm the action of their respective interests in the Reconciliation Fund with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by the Reconciliation Agreement, and the Stockholder Representative agrees taken in good faith under this Agreement are waived. The powers, immunities and rights to act as, and indemnification granted to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is Stockholder Representative hereunder: (x) are coupled with an interest and is irrevocableshall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Stockholder and shall be binding on any successor thereto, and (y) shall survive the delivery of an assignment by any Stockholder of the whole or any fraction of his, her or its interest in the Holdback Amount and the Stockholder Representative Expense Fund. (c) The appointment of the Stockholder Representative may not be revoked except in accordance with this Section 1.16(c). (i) The Stockholder Representative may be removed as the Stockholder Representative and replaced with another Person by written agreement among a majority in interest of the Indemnifying Stockholders according to their Pro Rata Additional Indemnity Share. The Stockholder Representative may resign at any time upon giving thirty (30) Business Days’ prior written notice of such resignation to Parent and each Stockholder. In the event of the Stockholder Representative’s death or disability, he or she shall automatically be removed as the Stockholder Representative, without any action on the part of Parent or any Stockholder. (ii) In the event of the Stockholder Representative’s resignation, death or disability, a majority in interest of the Indemnifying Stockholders according to each Indemnifying Stockholder’s Pro Rata Additional Indemnity Share shall in good faith promptly agree in writing to a replacement Stockholder Representative. If as a result of the Stockholder Representative’s resignation, death, disability or removal there is no appointed Stockholder Representative at the time of the expiration of any Survival Period set forth in Section 6.1 or at the expiration of any period in which any Parent Indemnified Party is required to provide notice to the Stockholder Representative with respect to any Indemnification Claim or action to be taken in connection with its obligations under this Agreement, the Reconciliation Agreement or any other agreement made Operative Document, such Parent Indemnified Party shall provide such notice to each Indemnifying Stockholder at the address set forth in connection with such Indemnifying Stockholder’s Support Agreement. (d) At the transactions contemplated by this AgreementClosing, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it Parent will cause an amount equal to the Stockholder Representative Expense Fund to be genuine delivered to the Stockholder Representative. The Stockholder Representative Expense Fund shall be held by the Stockholder Representative in a segregated bank account and duly authorizedshall be used solely for the purposes of paying directly, nor for or reimbursing the Stockholder Representative for, any other action or inaction in third party expenses pursuant to the absence of his or her own gross negligence or willful misconductterms specified herein. In all questions arising under this Agreement, the Reconciliation Agreement or any other agreement made in connection with the transactions contemplated by this AgreementFor income Tax purposes, the Stockholder Representative may rely Expense Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The Stockholders shall not receive interest or other earnings on the advice or opinion of counsel and independent accountants satisfactory to it, and for anything done, omitted or suffered in good faith by the Stockholder Representative based on such advice, Expense Fund and the Stockholders irrevocably transfer and assign to the Stockholder Representative shall any ownership right that they may have in any interest that may accrue on funds held in the Stockholder Representative Expense Fund. The Stockholders acknowledge that the Stockholder Representative is not be liable to providing any Personinvestment supervision, including, without limitation, any Holder in its capacity as suchrecommendations or advice. The Stockholder Representative shall have no duties responsibility or responsibilities other than those expressly set forth in this Agreement or the Reconciliation Agreement. The Stockholder Representative, acting as such under this Agreement or the Reconciliation Agreement, is not charged with knowledge liability for any loss of or any duties or responsibilities under, and shall not be bound by, any other document or agreement. The Stockholder Representative shall be entitled to be reimbursed, from the amounts available in the Reconciliation Fund, for all reasonable out-of-pocket documented charges and expenses incurred in good faith by principal of the Stockholder Representative in connection with the performance Expense Fund other than as a result of its duties gross negligence or willful misconduct. As soon as Stockholder Representative practicable following the date on which funds remaining in the Holdback Account, if any, are to be released to the Stockholders under the terms of this Agreement, the Reconciliation Agreement or any other agreement made in connection with Stockholder Representative shall disburse the transactions contemplated by this Agreement or the Reconciliation Agreement, including, without limitation, attorneys fees, accountants’ fees and any amounts arising in respect remaining balance of its indemnification obligations pursuant to Section 7(a) of the Reconciliation Agreement. If the Stockholder Representative shall be unable or unwilling to serve in such capacity (i) prior Expense Fund, if any, directly to the Effective Time, his or her successor shall be named by the Board of Governors or (ii) after the Effective Time, his or her successor shall be named by those Persons who held a majority of the Class B Shares immediately prior Stockholders for distribution to the Effective Time, andStockholders, in either case, such successor shall serve and exercise the powers of Stockholder Representative hereundercase based on each Stockholder’s Pro Rata Share.