Common use of The Representative Clause in Contracts

The Representative. (a) ETS hereby authorizes and directs ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to take such action, and to exercise such rights, power and authority, as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby, and to exercise such rights, power and authority, as are incidental thereto. Approval of the Merger by the ETS stockholders shall constitute ratification by the ETS stockholders of the appointment of the Representative in accordance herewith and agreement to be bound by the actions of the Representative taken hereunder and under the Escrow Agreement. (b) Upon the resignation, death or inability of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to act as Representative, ▇▇▇▇ ▇▇▇▇▇▇ shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to act as successor Representative, the Surrendering Stockholders shall vote to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time). No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of this Agreement and the Escrow Agreement. (c) ETS agrees that the provisions set forth in this SECTION 11.3 shall not limit in any respect the obligations of the Representative and shall in no way impose any obligations on Hach other than those explicitly set forth in this Agreement or the Escrow Agreement. In particular, notwithstanding in any case any notice received by Hach to the contrary, Hach shall be fully protected in relying upon and shall be entitled to (A) rely upon actions, decisions and determinations of the Representative and (B) assume that all actions, decisions and determinations of the Representative are fully authorized and binding upon the Representative and the Surrendering Stockholders. (d) The Representative shall not be liable to the Surrendering Stockholders for the performance of any act or the failure to act so long as he acted or failed to act in good faith and such action or inaction did not constitute willful misconduct or gross negligence.

The Representative. (a) ETS Web and the Web Shareholders hereby authorizes authorize, direct and directs ▇▇▇▇▇ ▇▇▇▇▇▇appoint ▇▇▇▇ to take such actionact as sole and exclusive agent, attorney-in-fact and representative of the Web Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Web Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of Section 9.1(a) hereof) and making any and -------------- all determinations) which may be required or permitted by this Agreement to be taken by the Web Shareholders or the Representative, (ii) exercise such other rights, power and authority, authority as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby, and to (iii) exercise such rights, power and authority, authority as are incidental theretoto the foregoing. Approval Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each indemnifying party as if such indemnifying party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such indemnifying party's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article IX, (i) each of the Merger by Web ---------- Shareholders irrevocably relinquishes such Web Shareholder's right to act independently and other than through the ETS stockholders shall constitute ratification by Representative, except with respect to the ETS stockholders removal of the Representative or appointment of a successor Representative as provided in Section 9.6(b) below, and (ii) -------------- no Web Shareholders shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against Web or Parent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance herewith and agreement to be bound by the actions of the Representative taken hereunder and under the Escrow with this Agreement. (b) Upon the The Representative shall serve as Representative until his resignation, death removal from office, incapacity or inability death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Web Shareholders, and (ii) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Web Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Web Shareholders. Any successor to the Representative shall, for purposes of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ this Agreement, be deemed to act as be, from the time of the appointment thereof in accordance with the terms hereof, the Representative, ▇▇▇▇ ▇▇▇▇▇▇ and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling deemed to act as successor Representative, the Surrendering Stockholders shall vote refer to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time)such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of this Agreement and the Escrow Agreement. (c) ETS agrees that the The Representative shall be permitted to retain counsel, consultants and other advisors and shall promptly notify Parent after retaining any such Person. (d) The provisions set forth in of this SECTION 11.3 shall not limit in any respect the obligations of the Representative and Section 9.6 shall in no way ----------- impose any obligations on Hach Parent (other than those explicitly set forth in this Agreement or the Escrow Agreementparagraph (c) above). In particular, notwithstanding in any case any notice received by Hach Parent to the contrarycontrary (except any notice of the appointment of a successor Representative approved by Parent in accordance with paragraph (b) of this Section 9.6), Hach shall be fully protected in relying upon and Parent shall be entitled to (A) rely upon actions, decisions and determinations of the Representative and (B) assume ----------- that all actions, decisions and determinations of the Representative are fully authorized and binding upon by the Representative and the Surrendering StockholdersWeb Shareholders. (de) The Representative shall not be liable to the Surrendering Stockholders Web Shareholders for the performance of any act or the failure to act so long as he acted or failed to act in good faith in what he reasonably believed to be the scope of his authority and such action or inaction did not constitute willful misconduct or gross negligencefor a purpose which he reasonably believed to be in the best interests of the Web Shareholders.

The Representative. (a) ETS 4.1. Each of the Sellers hereby authorizes and directs irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇, Adv, of Sabban Law Offices (together with any successor appointed pursuant to this Section, the “Representative”) as its sole representative, attorney-in-fact and agent with full power of substitution to act in the name, place and stead of the Sellers with respect to this Agreement and the Paying Agent & Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Representative under this Agreement or the Paying Agent & Escrow Agreement, including (a) receiving and giving notices and communications, (b) authorizing delivery of payments (including from the Adjustment Escrow Account) to the Sellers or to the Investor as appropriate, (c) agreeing to, negotiating, entering into settlements and compromises of, and otherwise administering and resolving disputes relating to the Adjustment Escrow Amount or the determination of the Exercise Price, and (d) engaging attorneys, accountants or other advisors as the Representative determines necessary or desirable. The Sellers acknowledge that the Representative is legal counsel to KT Squared, LLC, and nothing in his role as Representative, shall preclude him from continuing to advise KT Squared, LLC in that capacity. 4.2. The Sellers acknowledge and agree that the Investor shall be entitled to rely on any action or decision of the Representative as being binding on all of the Sellers, and shall have no responsibility to determine whether the Representative is acting in accordance with the instructions of the Sellers. All decisions and actions by the Representative, including any agreement between the Representative and the Investor relating to the determination of the Exercise Price or the disbursement of the Adjustment Escrow Amount, shall be binding upon all Sellers as if expressly confirmed and ratified in writing by each of them. 4.3. Each Seller hereby irrevocably constitutes and appoints the Representative, with full power of substitution, as its true and lawful proxy and attorney-in-fact (the “Voting Proxy”), to vote all of such Seller’s Shares and to exercise all rights, powers and privileges of such Seller with respect to such Shares (including the right to act by written consent) in accordance with the provisions of this Agreement and the transactions contemplated hereby, including without limitation in connection with any Company Acquisition (as defined below) or other resolution or action required to be approved by the Sellers or shareholders of the Company in order to effectuate the Option Closing. Each Seller agrees to take such further actions and to execute such further instruments as may be reasonably necessary to effectuate the foregoing. The grant of the Voting Proxy is coupled with an interest, shall be irrevocable and shall survive the death, incapacity, bankruptcy or liquidation of the Seller. 4.4. The Representative (through deposit with the Paying Agent) shall be the sole party entitled to receive payment of the Exercise Price on behalf of the Sellers. The Investor shall have no responsibility or liability whatsoever for the allocation, apportionment, or delivery of any amount received by the Representative to any Seller, and no Seller shall have any claim against the Investor in connection with any such distribution. 4.5. The 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 (the "Majority Sellers") of the Sellers according to each Sellers' pro rata share of all Shares held by the Sellers (“Seller’s Pro-rata Share”) ; provided, however, in no event shall Representative be removed without the Majority Sellers having first appointed a new Representative who shall assume such duties immediately upon the removal of Representative. In the event of the death, incapacity, resignation, or removal of Representative, a new Representative shall be appointed by the vote or written consent of the Majority Sellers, and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor Representative is appointed. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by ▇▇▇▇ ▇▇; provided, that until such notice is received, Buyer shall be entitled to take rely on the decisions and actions of the prior Representative as described above. If the Representative is dissolved, liquidated, ceases to exist, is declared bankrupt, enters into receivership or administration, resigns, or is otherwise unable or unwilling to act then the Majority Sellers may, by written notice to the Investor, appoint a successor Representative and if such actionappointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor Representative is appointed. Any such appointment shall be effective upon the delivery to the Investor of written notice of the appointment, together with a written acceptance of such appointment by the successor Representative. The removal of a Representative shall not be effective until such a successor has been duly appointed and accepted the role in writing. 4.6. The Representative may rely upon any document or communication believed to be genuine and may assume any Person purporting to act on behalf of a Seller has been duly authorized. The Representative shall not be liable to the Sellers for actions taken pursuant to this Agreement or the Paying Agent & Escrow Agreement/any Transaction Document, 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 act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Representative shall be conclusive evidence of good faith). The Sellers shall severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)), indemnify and hold harmless Representative from and against, compensate it for, reimburse it for, and pay any and all losses, liabilities, claims, actions, damages, and expenses, including attorneys' fees and disbursements, arising out of and in connection with its activities as Representative under this Agreement and the Paying Agent & Escrow Agreement/any Transaction Document (the "Representative Losses"), in each case as such Representative Loss is suffered or 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 Representative, Representative shall reimburse the Sellers the amount of such indemnified Representative Loss attributable to exercise such rightsgross negligence, power fraud, intentional misconduct, or bad faith. The Representative Losses shall be satisfied: (i) first from the Representative Expense Amount; and authority, as are authorized, delegated and granted (ii) to the extent the amount of the Representative hereunder Losses exceeds amounts available to Representative from the Representative Expense Amount, from the Sellers, severally and not jointly (in accordance with each Seller’s pro-rata share of the Consideration (less the amount of any Company Exit Bonuses paid or deducted therefrom)). As soon as practicable after the date on which the final obligation of Representative under this Agreement and the Paying Agent & Escrow Agreement Agreement/any Transaction Document have been discharged or such other date as Representative deems appropriate, any remaining Representative Expense shall be released to the Consideration Recipients on a pro-rata basis between them (based on the portion of the Consideration each such Consideration Recipient is entitled to receive). 4.7. The Sellers shall jointly bear the Representative’s costs and expenses (including professional advisor fees) incurred in connection with the transactions contemplated hereby and therebyperformance of its duties under this Agreement, which may be paid directly from any amounts otherwise payable to Sellers, including from the Adjustment Escrow Account, and to exercise the extent such rightsamounts or not available or are insufficient, power and authority, as are incidental thereto. Approval shall be paid by the Consideration Recipients on a pro-rata basis between them (based on the portion of the Merger Consideration each such Consideration Recipient is entitled to receive). The Representative may withhold from, or cause to be deducted from, any amounts payable to the Sellers any amounts required to fund such expenses on a pro rata basis. 4.8. The Representative may act through one or more individuals or officers as it may designate from time to time in writing to the Investor. The Investor shall be entitled to rely upon the actions or signatures of any such designated individual as though they were taken or given by the ETS stockholders shall constitute ratification by Representative itself. Without limiting the ETS stockholders of the appointment of the Representative in accordance herewith and agreement to be bound by the actions of the Representative taken hereunder and under the Escrow Agreement. (b) Upon the resignationforegoing, death or inability of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ , Adv., and such other Persons as may be designated in writing by the Representative, are hereby authorized to act as on behalf of the Representative, ▇▇▇▇ ▇▇▇▇▇▇ shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to act as successor Representative, the Surrendering Stockholders shall vote to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time). No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of this Agreement and the Escrow Agreement. (c) ETS agrees that Investor may rely on any such act or deed as the provisions set forth in this SECTION 11.3 shall not limit in any respect the obligations valid act or deed of the Representative and shall in no way impose any obligations on Hach other than those explicitly set forth in this Agreement or the Escrow Agreement. In particular, notwithstanding in any case any notice received by Hach to the contrary, Hach shall be fully protected in relying upon and shall be entitled to (A) rely upon actions, decisions and determinations of the Representative and (B) assume that all actions, decisions and determinations of the Representative are fully authorized and binding upon the Representative and the Surrendering StockholdersRepresentative. (d) The Representative shall not be liable to the Surrendering Stockholders for the performance of any act or the failure to act so long as he acted or failed to act in good faith and such action or inaction did not constitute willful misconduct or gross negligence.

The Representative. (a) ETS hereby authorizes and directs ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ The board of directors of the Company has determined that it is desirable to take such actiondesignate the Representative to act on behalf of the Company Equityholders for certain limited purposes, as described herein. By virtue of adoption of this Agreement by the Company Equityholders, and without further action by any Company Equityholder, Madison Dearborn Capital Partners V-A, L.P. is hereby irrevocably appointed, authorized and empowered to exercise such rightsact as the initial "Representative", power and authority, as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with execution of a written consent approving the transactions contemplated hereby by a Company Equityholder shall, to the maximum extent permitted under applicable Law, constitute irrevocable ratification and thereby, approval of such designation by such Company Equityholder and to exercise such rights, power and authority, as are incidental thereto. Approval of the Merger by the ETS stockholders shall constitute ratification by the ETS stockholders of the appointment authorization of the Representative to serve in accordance herewith such capacity, and shall also constitute a reaffirmation, approval, acceptance, and adoption of, and an agreement to be bound comply with and perform, all of the acknowledgments and agreements made by the actions Representative on behalf of the Company Equityholders in this Agreement and the other agreements entered into in connection herewith (including the Escrow Agreement). The Representative may resign at any time and for any reason and the Representative may be removed only by the vote of Persons who collectively owned more than fifty percent (50%) of the outstanding shares of Company Common Stock as of immediately prior to the Closing (the "Majority Holders"). The designation of the Representative taken hereunder is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and under shall not be affected by the Escrow Agreementdeath, incapacity, illness, bankruptcy, dissolution, or other inability to act of any of the Company Equityholders. In the event that the Representative has resigned or been removed, a new Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal or appointment of a Representative shall be delivered by the Representative to the Buyer promptly after such action is taken. (b) Upon The Representative shall have such powers and authority as are necessary or appropriate to carry out the resignation, death or inability of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ functions assigned to act as Representative, ▇▇▇▇ ▇▇▇▇▇▇ shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to act as successor Representative, the Surrendering Stockholders shall vote to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time). No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of it under this Agreement and in any other agreement entered into in connection herewith (including the Escrow Agreement) and in connection therewith, shall be entitled to take such actions as the Representative deems appropriate in its sole discretion; provided, that the Representative shall have no obligation to act on behalf of the Company Equityholders. The Buyer and the Escrow Agent shall be entitled to rely on the actions taken by the Representative without independent inquiry into the capacity of the Representative to so act and none of the Buyer, the Merger Sub, the Surviving Corporation and the Escrow Agent shall have any obligations, responsibilities, or Liabilities whatsoever to the Company Equityholders with respect to any claim or Action by any Company Equityholder against the Representative. All actions, notices, communications, and determinations by the Representative to carry out such functions shall conclusively be deemed to have been authorized by, and shall be binding upon, the Company Equityholders. The Representative shall not have, by reason of this Agreement, any fiduciary relationship in respect of any other Company Equityholder. Neither the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives shall have any Liability to the Company Equityholders with respect to actions taken or omitted to be taken by the Representative in such capacity (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), except for any actions, or action omitted to be taken, which are finally determined to constitute gross negligence or willful misconduct by the Representative. The Representative shall at all times be entitled to rely on any directions received from the Majority Holders; provided, that the Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as Representative based upon any such direction. (c) ETS agrees that the provisions set forth in this SECTION 11.3 shall not limit in any respect the obligations of the The Representative and shall in no way impose any obligations on Hach other than those explicitly set forth in this Agreement or the Escrow Agreement. In particular, notwithstanding in any case any notice received by Hach to the contrary, Hach shall be fully protected in relying upon and shall be entitled to engage such counsel, accountants, experts, and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (A) rely upon actions, decisions and determinations in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Representative (for itself and its direct or indirect officers, directors, partners, managers, employees, agents and representatives) shall be entitled to full reimbursement for all reasonable expenses, disbursements, and advances (Bincluding fees and disbursements of its counsel, accountants, experts, and other agents and consultants) assume that all actionsincurred by the Representative in such capacity (or any of its direct or indirect officers, decisions directors, partners, managers, employees, agents or representatives in connection therewith), and determinations to full indemnification against any Loss, Liability, or expense arising out of actions taken or omitted to be taken in its capacity as Representative (except for any Loss, Liability, or expense which is finally determined was primarily caused by the gross negligence or willful misconduct of the Representative are fully authorized Representative), including the costs and binding upon expenses of investigation and defense of claims, from any Company Equityholder. For the Representative and avoidance of doubt, neither the Surrendering StockholdersBuyer, the Company, nor any of their respective Subsidiaries shall have any reimbursement obligations under this Section 6.09(c). (d) Pursuant to Section 1.10(e), the Buyer shall pay over to the Representative at the Closing an amount in cash equal to the Representative Amount. The Representative shall not be liable deposit such funds into such accounts, or otherwise invest such funds, in any manner it may reasonably determine, and in no event shall the Representative nor any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives have any Liability to the Surrendering Stockholders Company Equityholders with respect to such funds or the manner of their investment, except for any action, or action omitted to be taken, by the Representative which is finally determined to constitute gross negligence or willful misconduct by the Representative. Such funds shall be a non-exclusive source of recovery for the performance Representative for any expenses, disbursements, or advances (including fees and disbursements of counsel, accountants, experts, and other agents and consultants) incurred by the Representative in its capacity as such (or any of its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), or for any Loss, Liability, or other expense incurred by the Representative or otherwise arising out of any act action taken by it in its capacity as such (except for any Loss, Liability, or expense which is finally determined was primarily caused by the gross negligence or willful misconduct of the Representative). In addition to the Representative Amount, the Representative shall have the power and authority to set aside and retain additional funds otherwise payable to Company Equityholders pursuant to this Agreement to satisfy such obligations. (e) From time to time, the Representative may elect to distribute to the Company Equityholders all or any portion of the Representative Amount, together with any interest or earnings thereon. If the Representative so elects, it shall pay over (or cause to be paid over) to each Company Equityholder an amount equal to (i) the aggregate amount then being distributed by the Representative, multiplied by (ii) such Company Equityholder's Percentage Interest; provided, that, for any amount payable to a holder of Company Options pursuant to this Section 6.09(e), the Representative shall pay over to each holder of Company Options the amount that such holder is entitled to pursuant to this Section 6.09(e), less any applicable withholding Taxes pursuant to Section 1.12(g). The aggregate amount distributable pursuant to this Section 6.09(e) with respect to a share of Company Common Stock is the "Per Share Representative Amount Distribution." Each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations, responsibilities or Liabilities whatsoever to the Company Equityholders with respect to the distribution to the Company Equityholders by the Representative of all or any portion of the Representative Amount. (f) In the event the Representative makes, or causes to be made, any payment to any holder of Company Options after the Closing, including with respect to the Per Share Adjustment Distribution, the Per Share Representative Amount Distribution, or the failure Per Share Escrow Distribution, the Buyer shall, and shall cause the Surviving Corporation and its Subsidiaries to, provide the Representative with all reasonable cooperation requested by it in connection with any such payment, including in connection with any calculations of amounts to act so long as he acted be withheld from such payments and any matters related thereto; provided, each of the Buyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations or failed responsibilities whatsoever to act in good faith and make such action or inaction did not constitute willful misconduct or gross negligencepayments.

The Representative. (a) ETS Big Stuff and the Big Stuff Shareholders hereby authorizes authorize, direct and directs ▇▇▇▇▇ ▇▇▇▇▇▇appoint ▇▇▇▇ to take such actionact as sole and exclusive agent, attorney-in-fact and representative of the Big Stuff Shareholders (THE "REPRESENTATIVE"), and authorizes and directs the Representative to (i) take any and all actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Big Stuff Shareholders (which will constitute Damages incurred or suffered by Parent within the meaning of Section 9.1(a) -------------- hereof) and making any and all determinations) which may be required or permitted by this Agreement to be taken by the Big Stuff Shareholders or the Representative, (ii) exercise such other rights, power and authority, authority as are authorized, delegated and granted to the Representative hereunder and under the Escrow Agreement in connection with the transactions contemplated hereby and thereby, and to (iii) exercise such rights, power and authority, authority as are incidental theretoto the foregoing. Approval Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent therewith, shall be absolutely and irrevocably binding on each indemnifying party as if such indemnifying party personally had taken such action, exercised such rights, power or authority or made such decision or determination in such indemnifying party's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, then with respect to the matters covered by Article IX, ---------- (i) each of the Merger by Big Stuff Shareholders irrevocably relinquishes such Big Stuff Shareholder's right to act independently and other than through the ETS stockholders shall constitute ratification by Representative, except with respect to the ETS stockholders removal of the Representative or appointment of a successor Representative as provided in Section 9.6(b) below, and (ii) no Big Stuff Shareholders shall have -------------- any right under this Agreement or otherwise to institute any suit, action or proceeding against Big Stuff or Parent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance herewith and agreement to be bound by the actions of the Representative taken hereunder and under the Escrow with this Agreement. (b) Upon the The Representative shall serve as Representative until his resignation, death removal from office, incapacity or inability death; provided, however, that the Representative shall not have the right to resign without (i) prior written notice to the Big Stuff Shareholders, and (ii) picking a successor reasonably satisfactory to Parent to serve until a successor thereto is elected by the Big Stuff Shareholders. The Representative may be removed at any time, and a successor representative, reasonably satisfactory to Parent, may be appointed, pursuant to written action by Big Stuff Shareholders. Any successor to the Representative shall, for purposes of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ this Agreement, be deemed to act as be, from the time of the appointment thereof in accordance with the terms hereof, the Representative, ▇▇▇▇ ▇▇▇▇▇▇ and from and after such time, the term "REPRESENTATIVE" as used herein and therein shall be the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling deemed to act as successor Representative, the Surrendering Stockholders shall vote refer to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time)such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of this Agreement and the Escrow Agreement. (c) ETS agrees that the The Representative shall be permitted to retain counsel, consultants and other advisors and shall promptly notify Parent after retaining any such Person. (d) The provisions set forth in of this SECTION 11.3 shall not limit in any respect the obligations of the Representative and Section 9.6 shall in no way ----------- impose any obligations on Hach Parent (other than those explicitly set forth in this Agreement or the Escrow Agreementparagraph (c) above). In particular, notwithstanding in any case any notice received by Hach Parent to the contrarycontrary (except any notice of the appointment of a successor Representative approved by Parent in accordance with paragraph (b) of this Section 9.6), Hach shall be fully protected in relying upon and Parent shall be entitled to (A) rely upon actions, decisions and determinations of the Representative and (B) assume that all ----------- actions, decisions and determinations of the Representative are fully authorized and binding upon by the Representative and the Surrendering StockholdersBig Stuff Shareholders. (de) The Representative shall not be liable to the Surrendering Stockholders Big Stuff Shareholders for the performance of any act or the failure to act so long as he acted or failed to act in good faith in what he reasonably believed to be the scope of his authority and such action or inaction did not constitute willful misconduct or gross negligencefor a purpose which he reasonably believed to be in the best interests of the Big Stuff Shareholders.

The Representative. The Holder (aon the Holder’s own behalf and on behalf of its successors and assigns) ETS hereby authorizes irrevocably designates, empowers and directs ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to take such actionappoints the Representative as the attorney-in-fact for and on behalf of the Holder, and to exercise such rights, with full power and authorityauthority to represent the Holder and his, as are authorizedher or its successors with respect to any and all actions and make any and all decisions required or permitted to be taken by such Holder under the Merger Agreement or any Ancillary Agreement to which any Stockholder is a party, delegated and granted including the exercise of the power to (i) resolve any Dispute Notices with respect to the Final Closing Statement or any Earn-Out Statement, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts with respect to any indemnification claims, (iii) resolve any indemnification claims and (iv) take all actions necessary in the judgment of the Representative hereunder for the accomplishment of the other terms, conditions and under limitations of the Escrow Merger Agreement, the Ancillary Agreements and any transactions contemplated herein and therein. Accordingly, the Representative has the authority and power to act on behalf of the Holder with respect to the Merger Agreement or any Ancillary Agreement to which any Stockholder is a party. The Holder will be bound by all actions taken by the Representative in connection with the transactions contemplated Merger Agreement and Parent shall only be required to acknowledge or act upon a written communication signed by the Representative. The Holder hereby accepts and acknowledges the following: · that such agency may be changed with respect to the Representative by the majority of the Stockholders represented thereby; provided, however, that the Representative may not be removed unless any such majority agrees to such removal and to exercise such rights, power and authority, as are incidental thereto. Approval the identity of the Merger by the ETS stockholders shall constitute ratification by the ETS stockholders of the appointment of a substituted agent reasonably acceptable to Parent; · the Representative in accordance herewith and agreement may resign at any time by providing written notice of his intent to be bound by the actions of the Representative taken hereunder and under the Escrow Agreement. (b) Upon the resignationresign to each Stockholder, death or inability of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to act as Representative, ▇▇▇▇ ▇▇▇▇▇▇ which resignation shall be effective upon the successor Representative. If ▇▇▇▇ ▇▇▇▇▇▇ is unable earlier of (i) thirty (30) calendar days following delivery of such written notice or unwilling to act as successor Representative, (ii) the Surrendering Stockholders shall vote to select a successor Representative (with each Surrendering Stockholder or their heirs or personal representatives having one vote for each share of ETS Common Stocks owned immediately prior to the Effective Time). No appointment of a successor representative, reasonably acceptable to Parent, by the relevant majority; · No bond shall be effective unless such successor agrees in writing to be bound by the terms of ARTICLE 11 of this Agreement and the Escrow Agreement. (c) ETS agrees that the provisions set forth in this SECTION 11.3 shall not limit in any respect the obligations required of the Representative and shall in no way impose any obligations on Hach other than those explicitly set forth in this Agreement or the Escrow Agreement. In particular, notwithstanding in any case any notice received by Hach to the contrary, Hach shall be fully protected in relying upon and shall be entitled to (A) rely upon actions, decisions and determinations of the Representative and (B) assume that all actions, decisions and determinations of the Representative are fully authorized and binding upon the Representative and the Surrendering Stockholders. (d) shall not receive any compensation for its services; · The Representative shall not be liable to the Surrendering Stockholders for the performance of any act done or omitted under the failure to act so long Merger Agreement as he acted or failed to act the Representative while acting in good faith and in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of the Representative; · The Representative shall only have the duties expressly stated in the Merger Agreement and shall have no other duty, express or implied; · The Representative may engage attorneys, accountants and other professionals and experts and pay for such services by seeking reimbursement from the Stockholders; · The Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in the exercise of reasonable judgment; and · The Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any loss, liability or inaction did not constitute willful misconduct expense incurred on the part of the Representative (so long as the Representative was acting in good faith in connection therewith) and arising out of or gross negligencein connection with the acceptance or administration of the Representative’s duties under the Merger Agreement, including the reasonable fees and expenses of any legal counsel retained by the Representative.