Common use of Stockholders’ Representative Clause in Contracts

Stockholders’ Representative. DLJMB will serve as the Stockholders’ Representative (in such capacity, the “Stockholders’ Representative”) and will take such actions to be taken by the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreement. The Stockholders’ Representative shall not be liable to any Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely on any and all actions taken by the Stockholders’ Representative as provided for under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representative.

Stockholders’ Representative. DLJMB will serve as (a) The Company and the Significant Stockholders hereby authorize, direct and appoint the Stockholders’ Representative (in such capacityto act as sole and exclusive agent, attorney-in-fact and representative of the “Stockholders’ Representative”) Significant Stockholders and will take such actions the other holders of Company Shares and Company Options, with full power of substitution with respect to be taken by all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving certain distributions of the Common Share Price to or for the benefit of the holders of the Company Shares and the Company Options, entering into any documents required or permitted under Section 8, contesting and settling any and all claims for indemnification pursuant to Section 8 hereof, resolving any other disputes hereunder, performing the duties expressly assigned to the Stockholders’ Representative under this Agreement hereunder and the Escrow Agreement to engage and employ agents and representatives and to incur such other actions on behalf of the Stockholders expenses as DLJMB may Stockholders’ Representative shall reasonably deem necessary or appropriate to consummate prudent in connection with the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreementforegoing. The Stockholders’ Representative shall not be liable have the sole and exclusive right on behalf of any Significant Stockholder to take any action or provide any waiver, or receive any notice with respect to any Holder claims for indemnification under Section 8 and to settle any act done claim or omitted hereunder as Stockholders’ Representative while acting in good faith controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely on any and all actions taken decision or determination made by the Stockholders’ Representative consistent herewith, shall be absolutely and irrevocably binding on each Significant Stockholder as provided for under this Agreement without any liability toif such Significant Stockholder personally had taken such action, exercised such rights, power or obligation to inquire ofauthority or made such decision or determination in such Significant Stockholder’s individual capacity, any Holder. Buyer and MergerCo no Significant Stockholders shall have no liability for the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Significant Stockholders hereunder or any acts or omissions of action which Significant Stockholders, at their election, have the right to take hereunder, shall be taken only by the Stockholders’ Representative or otherwise and no Significant Stockholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by the Buyer to the Stockholders’ Representative pursuant to Sections 2.3(c) and 2.5(d) above shall be made on behalf of the holders of Company Common Shares and Company Options and shall constitute full performance of the obligations of the Buyer to the Stockholders’ Representative pursuant to such sections with respect to any claim brought such amounts. The Buyer shall not be liable for allocation of particular deliveries and payments of such amounts by any Holder against any other Holder or the Stockholders’ Representative.

Stockholders’ Representative. DLJMB will serve as (a) By adoption of this Agreement, execution of a Company Letter of Transmittal, and the acceptance of any portion of the Merger Consideration, each Equity Holder hereby designates the Stockholders’ Representative (in to execute any and all instruments or other documents on behalf of such capacityEquity Holder, the “Stockholders’ Representative”) and will take to do any and all other acts or things on behalf of such actions to be taken by Equity Holder, which the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate advisable, or which may be required pursuant to consummate this Agreement, the transactions contemplated herebyAncillary Agreements or otherwise, including (i) taking all actions and making all filings on behalf of the Stockholders in connection with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreementhereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) execute the Ancillary Agreements on behalf of each Equity Holder; (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts act for each Equity Holder with respect to any claims under any Transaction Agreement, Merger Consideration Adjustment and the Ancillary Agreements; (iii) subject give and receive notices and communications to Section 11.03or from the Parent Parties and/or the Escrow Agent relating to this Agreement, negotiating the Ancillary Agreements or any of the transactions and executing any waivers other matters contemplated hereby or amendments of thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be given or received by such Equity Holders individually); and (iv) taking take all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreementforegoing. The Stockholders’ Representative shall not have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement or the Ancillary Agreements and all rights or obligations arising hereunder or thereunder. The Equity Holders shall be liable to any Holder for any act done or omitted hereunder as bound by all actions taken and documents executed by the Stockholders’ Representative while acting in good faith connection with this Agreement and in the exercise of reasonable judgment. Buyer Ancillary Agreements, and MergerCo the Parent Parties shall be entitled to rely on any action or decision of the Stockholders’ Representative. Subject to costs and all actions taken by expenses paid pursuant to Section 9.13, the Stockholders’ Representative as provided shall receive no compensation for under this Agreement without any liability to, its services. Notices or obligation communications to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of from the Stockholders’ Representative shall constitute notice to or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representativefrom each Equity Holder.

Stockholders’ Representative. DLJMB will serve as (a) By virtue of the adoption of this Agreement, the delivery of the Letters of Transmittal and/or acceptance of any portion of the Merger Consideration, each Equity Holder shall be deemed to have designated the Stockholders’ Representative (in to execute any and all instruments or other documents on behalf of such capacityEquity Holder, the “Stockholders’ Representative”) and will take to do any and all other acts or things on behalf of such actions to be taken by Equity Holder, which the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate advisable, or which may be required pursuant to consummate this Agreement, the transactions contemplated herebyEscrow Agreement or otherwise, including (i) taking all actions and making all filings on behalf of the Stockholders in connection with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreementhereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) negotiate and execute the Escrow Agreement on behalf of each Equity Holder, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts act for each Equity Holder with respect to any claims under any Transaction AgreementMerger Consideration Adjustment, (iii) subject give and receive notices and communications to Section 11.03or from Buyer and/or the Escrow Agent relating to this Agreement, negotiating the Escrow Agreement or any of the transactions and executing any waivers other matters contemplated hereby or amendments of thereby (except to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such Equity Holders individually), and (iv) taking take all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreementforegoing. The Stockholders’ Representative shall not have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement and the Escrow Agreement and all rights or obligations arising under this Agreement and the Escrow Agreement. The Equity Holders shall be liable to any Holder for any act done or omitted hereunder as bound by all actions taken and documents executed by the Stockholders’ Representative while acting in good faith connection with this Agreement and in the exercise of reasonable judgment. Escrow Agreement, and Buyer and MergerCo shall be entitled to rely on any and all actions taken by action or decision of the Stockholders’ Representative. The Stockholders’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders’ Representative as provided for under this Agreement without any liability to, shall constitute notice to or obligation to inquire of, any from each Equity Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representative.

Stockholders’ Representative. DLJMB will serve (a) Pursuant to the Stockholders Approval dated on or about the date hereof, the Letters of Transmittal and the Warrant Termination Agreements, as applicable, the Stockholders and the Warrantholders have constituted, appointed and empowered effective from and after the date of such consent, Olympus Growth Fund IV, L.P. as the Stockholders’ Representative (in such capacityRepresentative, for the “Stockholders’ Representative”) and will take such actions to be taken by benefit of the Stockholders’ Representative under this Agreement Stockholders and the Escrow Agreement Warrantholders and such other actions the exclusive agent and attorney-in-fact to act on behalf of the Stockholders as DLJMB may deem necessary or appropriate each Stockholder and Warrantholder, in connection with and to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect facilitate the consummation of the transactions contemplated by any Transaction Agreementhereby, which shall include the power and authority: (i) to negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the consummation of the transactions contemplated hereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) agreeing toas the Stockholders’ Representative, negotiating, entering into settlements to enforce and compromises of, protect the rights and complying with orders interests of courts with respect the Stockholders and the Warrantholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any claims under any Transaction Agreement, (iii) subject manner relating to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking the transactions provided for herein, as and to the extent applicable to them, and to take any and all other actions that are either (A) necessary or appropriate in the judgment of which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for the accomplishment and on behalf of the foregoing Stockholders and the Warrantholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action or investigation; (B) contemplated investigate, defend, contest or litigate any Action or investigation initiated by Parent, the terms Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Stockholders or Warrantholders, and receive process on behalf of any Transaction or all Stockholders and Warrantholders in any such Action or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action or investigation; (C) file any proofs of debt, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement. The ; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation, it being understood that the Stockholders’ Representative shall not be liable have any obligation to take any Holder such actions, and shall not have any liability for any act done failure to take any such actions; (iii) to waive or omitted hereunder as Stockholders’ Representative while acting refrain from enforcing any right of the Stockholders or the Warrantholders arising out of or under or in good faith and any manner relating to this Agreement; provided, however, that such waiver is in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely on any and all actions taken writing signed by the Stockholders’ Representative as provided for under this Agreement without Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any liability to, or obligation and all things and to inquire of, take any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Stockholders and the Warrantholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and direct the disbursement of (if applicable under this Agreement) the Purchase Price Adjustment Holdback Amount, the Expense Holdback Amount, and the Indemnity Holdback Amount in accordance with the terms of this Agreement.

Stockholders’ Representative. DLJMB will serve (a) The Selling Stockholders hereby irrevocably appoint YEONGYI (Asia) Co., Ltd. as the Stockholders’ Representative their agent and attorney-in-fact (in such capacity, the “Stockholders’ Representative”) for all purposes under this Agreement, including for purposes of Article 9, and will take such consent to the taking by the YEONGYI (Asia) Co., Ltd. of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders’ Representative Representative, the EYON Stockholders as a group or the Selling Stockholders as a group (where such group action is required or permitted by this Agreement) under this Agreement (including executing and delivering the Escrow Agreement and such other actions Related Agreements on behalf of the Stockholders as DLJMB may deem Selling Stockholders, delivering any consents, waivers or certifications and making any necessary filings); and the taking of all actions necessary or appropriate to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or appropriate desirable in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by foregoing. The Selling Stockholders hereby acknowledge and agree that the terms of any Transaction AgreementStockholders’ Representative has the authority to execute and deliver this Agreement on their behalf. The Stockholders’ Representative shall not be liable to any Holder hereby accepts its appointment as the agent and attorney-in-fact for any act done or omitted hereunder as all purposes under this Agreement, including for purposes of Article 9, of the Selling Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment. Buyer and MergerCo The Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, including for purposes of Article 9, and a decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all the Selling Stockholders, and shall be final, binding and conclusive upon each of the Selling Stockholders, and the Parent and the Company may rely on upon any and all actions taken by decision, act, consent or instruction of the Stockholders’ Representative as provided for under this Agreement without being the decision, act, consent or instruction of each and all of the Selling Stockholders. The Parent and the Company are relieved from any liability to, to any Selling Stockholder or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability other Person for any acts done by them in accordance with such decision, act, consent or omissions instruction of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representative.

Stockholders’ Representative. DLJMB will serve (a) Dx. Xxxx Pxxxxx, a director of the Company immediately prior to the Effective Time, is hereby appointed as the representative of the Company Stockholders’ Representative , from and after the Effective Time, in connection with each Transaction Document and the Transactions (in such capacity, the “Stockholders’ Representative”) and will take such actions to be taken by the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreement). The Stockholders’ Representative shall not be liable have full power and authority to any Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith represent all of the Company Stockholders and in their successors, assigns, heirs and representatives with respect to all matters arising under the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely on any Transaction Documents and all actions taken by Stockholders’ Representative thereunder shall be final, conclusive and binding upon all of the Company Stockholders and their successors, assigns, heirs and representatives as if expressly confirmed and ratified in writing by each of them, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Stockholders’ Representative shall take any and all actions which he believes are necessary or appropriate under the Transaction Documents for and on behalf of the Company Stockholders, as fully as if the Company Stockholders were acting on their own behalf, including executing the Escrow Agreement as Stockholder Representative, giving and receiving any notice or instruction permitted or required under any of the Transaction Documents by Stockholders’ Representative or any Company Stockholder (including, without limitation, Article VII hereof), interpreting all of the terms and provisions of the Transaction Documents, authorizing payments to be made with respect thereto, dealing with Parent and the Escrow Agent under the Transaction Documents with respect to all matters arising under the Transaction Documents, taking any and all other actions specified in or contemplated by the Transaction Documents and engaging counsel, accountants or other advisors in connection with the foregoing matters. All costs and expenses incurred by Stockholders’ Representative in fulfillment of his duties hereunder (including the fees and expenses of counsel) shall be paid from the Stockholders’ Representative as provided for under this Agreement without any liability to, or obligation to inquire of, any HolderExpense Fund. Buyer and MergerCo shall have no liability for any acts or omissions Without limiting the generality of the foregoing, Stockholders’ Representative or otherwise with respect shall have full power and authority to interpret all the terms and provisions of the Transaction Documents and to consent to any claim brought by any Holder against any other Holder or amendment thereof on behalf of all of the Stockholders’ RepresentativeCompany Stockholders and their successors, assigns, heirs and representatives.

Stockholders’ Representative. DLJMB will serve as (a) By adoption of this Agreement, execution of a Company Letter of Transmittal, and the acceptance of any portion of the Merger Consideration, each Equity Holder hereby designates the Stockholders’ Representative (in to execute any and all instruments or other documents on behalf of such capacityEquity Holder, the “Stockholders’ Representative”) and will take to do any and all other acts or things on behalf of such actions to be taken by Equity Holder, which the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate advisable, or which may be required pursuant to consummate this Agreement, the transactions contemplated herebyAncillary Agreements or otherwise, including (i) taking all actions and making all filings on behalf of the Stockholders in connection with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreementhereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) execute the Ancillary Agreements on behalf of each Equity Holder; (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts act for each Equity Holder with respect to any claims under any Transaction Agreement, Merger Consideration Adjustment and the Ancillary Agreements; (iii) subject give and receive notices and communications to Section 11.03or from the Parent Parties and/or the Escrow Agent relating to this Agreement, negotiating the Ancillary Agreements or any of the transactions and executing any waivers other matters contemplated hereby or amendments of thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be given or received by such Equity Holders individually); and (iv) taking take all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreementforegoing. The Stockholders’ Representative shall not have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement or the Ancillary Agreements and all rights or obligations arising hereunder or thereunder. The Equity Holders shall be liable to any Holder for any act done or omitted hereunder as bound by all actions taken and documents executed by the Stockholders’ Representative while acting in good faith connection with this Agreement and in the exercise of reasonable judgment. Buyer Ancillary Agreements , and MergerCo the Parent Parties shall be entitled to rely on any and all actions taken by action or decision of the Stockholders’ Representative. The Stockholders’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders’ Representative as provided for under this Agreement without any liability to, shall constitute notice to or obligation to inquire of, any from each Equity Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representative.

Stockholders’ Representative. DLJMB will serve as the Stockholders’ Representative (in such capacitya) Each Principal Stockholder, by executing this Agreement, hereby irrevocably appoints Xxxxxx Xxxxxxx (the “Stockholders’ Representative”) as his, her or its agent and will take such actions to be taken by attorney-in-fact and authorizes the Stockholders’ Representative under this Agreement to take, and consent to the Escrow Agreement Stockholders’ Representative taking, the following actions for and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate to consummate the transactions contemplated hereby, including such Principal Stockholder: (i) taking all actions to give and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreementreceive notices and communications, (ii) agreeing to authorize delivery to Parent of Escrow Shares from the Escrow Fund in satisfaction of claims by the Parent Indemnitees, (iii) to object to such deliveries, (iv) to agree to, negotiatingnegotiate, entering enter into settlements and compromises of, and complying demand arbitration and comply with orders of courts and awards of arbitrators with respect to any claims under any Transaction Agreementto, such claims, (iiiv) subject to Section 11.03, negotiating and executing any waivers or amendments of take all other actions contemplated for the Stockholders’ Representative in this Agreement and (ivvi) taking to take all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by foregoing. Parent shall be entitled to deal exclusively with the terms of any Transaction Agreement. The Stockholders’ Representative shall not be liable on all such matters relating to any Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith this Agreement (including ARTICLE 7) and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Principal Stockholder by the Stockholders’ Representative, and all actions on any other action taken or purported to be taken on behalf of any Principal Stockholder by the Stockholders’ Representative, as fully binding upon such Principal Stockholder. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Principal Stockholders. Any decision or action by the Stockholders’ Representative as provided for under this Agreement without hereunder, including any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of agreement between the Stockholders’ Representative and Parent relating to the defense, payment or settlement of any claims to indemnify, hold harmless or reimburse any Parent Indemnitee hereunder, shall constitute a decision or action of all Principal Stockholders and shall be final, binding and conclusive upon each such Principal Stockholder. No Principal Stockholders shall have the right to object to, dissent from, protest or otherwise with respect to any claim brought by any Holder against any other Holder or contest the Stockholders’ Representativesame.

Stockholders’ Representative. DLJMB will serve Each Stockholder hereby irrevocably authorizes, directs and appoints Xx. Xxxx Xxxxx to act as the Stockholders’ Representative sole and exclusive representative for such Stockholder (in such capacity, the “Stockholders’ Representative”) and will authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such actions Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative under this Agreement consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (B) contemplated by the terms of any Transaction Agreement. The Stockholders’ Representative shall not be liable to any Holder for any act done actions taken or omitted hereunder as to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative while acting in good faith on all matters relating to this Agreement, and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and all actions on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as provided for under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representativefully binding upon each such Person.

Stockholders’ Representative. DLJMB will serve Each Stockholder hereby appoints Highland Capital Management, L.P. as the stockholders' representative, and the Stockholders Representative hereby accepts such appointment, as the exclusive agent and attorney-in-fact, authorized and empowered to act, for and on behalf of all of Stockholders’ , in connection with this Agreement or the other Transaction Documents, as it relates to the Stockholders generally, such other matters as are reasonably necessary or appropriate in the Stockholders Representative (in such capacitysole discretion for the consummation of the Acquisition, the “Stockholders’ Representative”) and will take such actions with respect to be taken by the Stockholders’ Representative any and all issues arising under this Agreement or the other Transaction Documents, including: (i) to commence, consent to, compromise, settle, administer and the Escrow Agreement resolve any Claim, disputes or compromise on their behalf with Buyer including any claims with respect to indemnification hereunder, (ii) to execute and such other actions deliver on behalf of the Stockholders as DLJMB may deem any documents or agreements contemplated by or necessary or appropriate to consummate desirable in connection with this Agreement and the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, Documents; (iii) subject to Section 11.03take such further actions such as coordinating and administering post-Closing matters related to the rights and obligations of Stockholders under this Agreement, negotiating including post-Closing matters, and executing to take any waivers or amendments of this Agreement and (iv) taking all other such further actions that are either (A) as the Stockholders Representative deems reasonably necessary or appropriate in its sole discretion in connection with coordinating and administering such post-Closing matters on behalf of Stockholders, in Stockholders Representative's sole discretion; (iv) subsequent to the judgment date on which any Stockholder actually executes a counterpart signature page to any Transaction Document, on behalf of all Stockholders, to agree to changes to any one or more of the Transaction Documents which changes do not appear, in the sole discretion of the Stockholders’ Representative for the accomplishment ' Representative, to have any material impact on any one or more of the foregoing Stockholders, and to execute and deliver amended and/or restated Transaction Documents reflecting such changes on behalf of and as agent and attorney-in-fact for each Stockholder; and (v) to appoint auditors and manage any of the Stockholders' audit rights under this Agreement. Without limiting the generality of the preceding sentence, each Stockholder acknowledges and agrees that whenever: (A) a consent of Stockholders is required or permitted under this Agreement or the other Transaction Documents, only the consent of Stockholders Representative shall be required to be obtained to make such consent effective as to all Stockholders, (B) contemplated a selection, designation or other decision is to be made by the terms Stockholders pursuant to this Agreement or the other Transaction Documents, the selection, designation or decision of the Stockholders Representative shall be final and binding on all Stockholders and (C) any document or other item required to be delivered to Stockholders pursuant to this Agreement or the other Transaction AgreementDocuments, such delivery shall be deemed effective if sent to the Stockholders Representative. The Stockholders’ power of attorney contemplated hereby shall terminate only when the duties of the Stockholders Representative shall not be liable to any Holder for any act done have been fully performed or omitted hereunder upon resignation or removal as Stockholders’ Representative while acting in good faith provided below, and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely on any and all actions taken by the Stockholders’ Representative as provided for under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise deemed coupled with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representativean interest.

Stockholders’ Representative. DLJMB will serve Each Seller hereby irrevocably authorizes, directs and appoints Meow Holdings LLC to act as the Stockholders’ Representative sole and exclusive agent, attorney-in-fact and representative (in such capacity, the “Stockholders’ Stockholders Representative”) and will authorizes and directs the Stockholders Representative to (i) enter into any and all amendments to this Agreement; provided, however, that if the impact of such amendment on J.X. Childs would be disproportionately adverse as compared to the impact on Meow Holdings, the consent of J.X. Childs to such amendment shall be required, (ii) take such any and all actions (including, without limitation, executing and delivering any documents, including without limitation the Escrow Agreement, incurring any costs and expenses on behalf of the Sellers and making any and all determinations) which may be required or permitted by this Agreement to be taken by the Stockholders’ Representative under this Agreement and Sellers, provided, however that if the Escrow Agreement and impact of such other actions action on behalf J.X. Childs would be disproportionately adverse as compared to the impact on Meow Holdings, the consent of the Stockholders as DLJMB may deem necessary or appropriate J.X. Childs to consummate the transactions contemplated hereby, including (i) taking all actions and making all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, such action shall be required; (iii) subject exercise such other rights, power and authority, as are authorized, delegated and granted to Section 11.03, negotiating and executing any waivers or amendments of the Stockholders Representative pursuant to this Agreement Agreement; and (iv) taking all other exercise such rights, power and authority as are incidental to the foregoing. This appointment is coupled with an interest and may not be revoked by any Seller. Any such actions that are either (A) necessary taken, exercises of rights, power or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing authority, and any decision or (B) contemplated determination made by the terms of any Transaction AgreementStockholders Representative consistent therewith, shall be absolutely and irrevocably binding on each Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Seller’s capacity. The Stockholders’ Each Seller agrees that the Stockholders Representative shall not be liable to any Holder for any act done actions taken or omitted hereunder as Stockholders’ Representative while acting to be taken under or in good faith and in connection with this Agreement or the exercise transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from the Stockholders Representative’s willful misconduct. As part of reasonable judgment. Buyer and MergerCo the Escrow Funds, $250,000 shall be entitled deducted from the Preliminary Cash Purchase Price and deposited with the Escrow Agent in a separate account and shall thereafter not be part of the “Escrow Funds” pursuant to rely on any and all actions taken the terms of the Escrow Agreement. Such funds shall be used to refund the out-of-pockets costs incurred by the Stockholders’ Stockholders Representative as provided for following the Closing in performance of its obligations under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ RepresentativeAgreement.

Stockholders’ Representative. DLJMB will serve Xxx Xxxxx is hereby appointed as the Stockholders’ Representative (in such capacity, the “Stockholders’ Representative”) agent and will take such actions to be taken by the Stockholders’ Representative under this Agreement and the Escrow Agreement and such other actions on behalf attorney-in-fact for each of the Stockholders as DLJMB may deem necessary or appropriate to consummate represent the transactions contemplated hereby, including (i) taking interests of the Stockholders and to take all actions and making make all filings on behalf of the Stockholders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by any Transaction Agreement, (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or amendments of this Agreement and (iv) taking all other actions that are either (A) decisions necessary or appropriate in the judgment of the Stockholders’ Representative for in connection with this Agreement and the accomplishment Additional Agreements, including the power (i) to enter into and deliver the Escrow Agreement and the Earn-out Escrow Agreement on behalf of each of the foregoing Stockholders (other than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (ii) to make all determinations and issue all notices pursuant to Section 4.4 above and the Earn-out Escrow Agreement on behalf of each of the Stockholders (other than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (ii) to defend, negotiate, settle or otherwise deal with claims under Article X hereof and under the Escrow Agreement on behalf of each of the Stockholders (Bother than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (iii) to defend, negotiate, settle or otherwise deal with any other litigation or dispute involving this Agreement, and (iv) after the Closing, to amend this Agreement; provided, that, unless the Stockholder Representative receives the written consent of 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement, the terms Stockholders’ Representative shall not enter into an amendment to this Agreement that would have required the approval of the Stockholders under applicable Law if it had been adopted prior to the Closing; provided, further, that if any Transaction amendment disproportionately and adversely impacts a Stockholder (or group of Stockholders), the written consent of such disproportionately impacted Stockholder (or group of Stockholders) shall also be required. The Stockholders’ Representative may be removed by the Stockholders from time to time upon no less than twenty (20) days’ prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Stockholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable to any Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and in the exercise of reasonable business judgment. Buyer In connection with the performance of his rights and MergerCo shall be entitled to rely on any and all actions taken by obligations hereunder, the Stockholders’ Representative as provided for under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Stockholders’ Representative may deem necessary or desirable from time to time, at the cost and expense of the Company, but subject to the indemnification obligations of Article X. The Company shall indemnify the Stockholders’ Representative and hold it harmless against any Loss, liability for any acts or omissions expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or otherwise in connection with respect to the acceptance or administration of its duties hereunder, including any claim brought out-of-pocket costs and expenses and legal fees and other legal costs incurred by any Holder against any other Holder or the Stockholders’ Representative. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders and shall be final, binding and conclusive upon each of the Stockholders. The appointment of the Stockholders’ Representative will be deemed coupled with an interest and will be irrevocable without the consent of the Stockholders’ Representative, and shall survive the death, incapacity, or bankruptcy of any Stockholder. The provisions of this Section 13.15 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Stockholder. All of the indemnities, immunities, rights, releases and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing.