Common use of The Representative Clause in Contracts

The Representative. (a) Big Stuff and the Big Stuff Shareholders hereby authorize, direct and appoint ▇▇▇▇ to act 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 as are authorized, delegated and granted to the Representative hereunder in connection with the transactions contemplated hereby 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 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 Big Stuff Shareholders irrevocably relinquishes such Big Stuff Shareholder's right to act independently and other than through the Representative, except with respect to the 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 with this Agreement. (b) The Representative shall serve as Representative until his resignation, removal from office, incapacity or 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 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 deemed to refer to such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement. (c) 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 of this Section 9.6 shall in no way ----------- impose any obligations on Parent (other than those set forth in paragraph (c) above). In particular, notwithstanding any notice received by Parent to the contrary (except any notice of the appointment of a successor Representative approved by Parent in accordance with paragraph (b) of this Section 9.6), Parent shall be entitled to assume that all ----------- actions, decisions and determinations of the Representative are fully authorized by the Big Stuff Shareholders. (e) The Representative shall not be liable to the 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 for a purpose which he reasonably believed to be in the best interests of the Big Stuff Shareholders.

The Representative. (a) Big Stuff The board of directors of the Company has determined that it is desirable to designate 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 the Big Stuff Shareholders without further action by any Company Equityholder, Madison Dearborn Capital Partners V-A, L.P. is hereby authorizeirrevocably appointed, direct authorized and appoint ▇▇▇▇ empowered to act as sole and exclusive agent, attorney-in-fact and representative of the Big Stuff Shareholders (THE initial "REPRESENTATIVERepresentative"), 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 execution 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 as are authorized, delegated and granted to the Representative hereunder in connection with a written consent approving the transactions contemplated hereby and (iii) exercise such rightsby a Company Equityholder shall, power and authority as are incidental to the foregoing. Any maximum extent permitted under applicable Law, constitute irrevocable ratification and approval of such actions taken, exercises designation by such Company Equityholder and authorization of rights, power or authoritythe Representative to serve in such capacity, and any decision or determination shall also constitute a reaffirmation, approval, acceptance, and adoption of, and an agreement to comply with and perform, all of the acknowledgments and agreements made by the Representative consistent therewith, shall 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 absolutely and irrevocably binding on each indemnifying party removed only by the vote of Persons who collectively owned more than fifty percent (50%) of the outstanding shares of Company Common Stock 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 immediately prior to the Closing occurs, then with respect to (the matters covered by Article IX, ---------- (i) each of the Big Stuff Shareholders irrevocably relinquishes such Big Stuff Shareholder's right to act independently and other than through the Representative, except with respect to the removal "Majority Holders"). The designation of the Representative is coupled with an interest, and, except as set forth in the immediately preceding sentence, such designation is irrevocable and shall not be affected by the death, 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 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 be delivered by the Representative to the Representative. The Representative hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as the Representative in accordance with this AgreementBuyer promptly after such action is taken. (b) The Representative shall serve have such powers and authority as are necessary or appropriate to carry out the functions assigned to 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 until his resignation, removal from office, incapacity or deathdeems appropriate in its sole discretion; provided, howeverthat 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 have the right be required to resign without (i) prior written notice to the Big Stuff Shareholdersfollow any such direction, 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 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 deemed under no obligation to refer to take any action in its capacity as Representative based upon any such successor. No appointment of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreementdirection. (c) The Representative shall be permitted entitled to retain engage such counsel, consultants accountants, experts, and other advisors agents and consultants as it shall promptly notify Parent after retaining deem necessary in connection with exercising its powers and performing its function hereunder and (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 (including fees and disbursements of its counsel, accountants, experts, and other agents and consultants) incurred by the Representative in such capacity (or any such Personof its direct or indirect officers, directors, partners, managers, employees, agents or representatives in connection therewith), and 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), including the costs and expenses of investigation and defense of claims, from any Company Equityholder. For the avoidance of doubt, neither the Buyer, 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 provisions of this Section 9.6 Representative shall deposit such funds into such accounts, or otherwise invest such funds, in any manner it may reasonably determine, and in no way ----------- impose event shall the Representative nor any obligations on Parent of its direct or indirect officers, directors, partners, managers, employees, agents or representatives have any Liability to the 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 Representative for any expenses, disbursements, or advances (including fees and disbursements of counsel, accountants, experts, and other than those set forth agents and consultants) incurred by the Representative in paragraph its capacity as such (c) aboveor 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 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 particular, notwithstanding any notice received by Parent addition to the contrary (except any notice of the appointment of a successor Representative approved by Parent in accordance with paragraph (b) of this Section 9.6)Amount, Parent shall be entitled to assume that all ----------- actions, decisions and determinations of the Representative are fully authorized by shall have the Big Stuff Shareholderspower and authority to set aside and retain additional funds otherwise payable to Company Equityholders pursuant to this Agreement to satisfy such obligations. (e) The 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 not be liable 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 Big Stuff Shareholders for Company Equityholders with respect to the performance distribution to the Company Equityholders by the Representative of all or any act 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 to act so long as he acted or failed to act 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 good faith connection with any such payment, including in what he reasonably believed connection with any calculations of amounts to be the scope of his authority withheld from such payments and for a purpose which he reasonably believed to be in the best interests any matters related thereto; provided, each of the Big Stuff ShareholdersBuyer, the Merger Sub, the Company, and the Surviving Corporation shall have no obligations or responsibilities whatsoever to make such payments.

The Representative. (a) Big Stuff and 4.1. Each of the Big Stuff Shareholders Sellers hereby authorize, direct and appoint irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇, Adv, of Sabban Law Offices (together with any successor appointed pursuant to act this Section, the “Representative”) as its sole and exclusive agentrepresentative, attorney-in-fact and representative agent with full power of substitution to act in the name, place and stead of the Big Stuff Shareholders (THE "REPRESENTATIVE"), Sellers with respect to this Agreement and authorizes the Paying Agent & Escrow Agreement and directs the Representative to (i) take any and all actions (including without limitation executing and delivering make 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 decisions 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 as are authorized, delegated and granted to the Representative hereunder in connection with the transactions contemplated hereby 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 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 Big Stuff Shareholders irrevocably relinquishes such Big Stuff Shareholder's right to act independently and other than through the Representative, except with respect to the 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 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 institute 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 suit, action or proceeding against Big Stuff 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 Parent 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 matterfurther 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, any such right being irrevocably shall be irrevocable and exclusively delegated to shall survive the Representativedeath, incapacity, bankruptcy or liquidation of the Seller. 4.4. The Representative hereby acknowledges and accepts (through deposit with the foregoing authorization and appointment and agrees Paying Agent) shall be the sole party entitled to serve as 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 accordance connection with this Agreementany such distribution. (b) 4.5. The Representative shall serve as Representative until his resignationmay resign at any time, removal from office, incapacity and may be removed for any reason or deathno 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, that 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 not have be KT Squared, LLC, until a successor Representative is appointed. Notice of such vote or a copy of the right written consent appointing such new Representative shall be sent to resign without (i) 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 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 Big Stuff ShareholdersInvestor, and (ii) picking appoint a successor reasonably satisfactory to Parent to serve Representative and if such appointment is not made within 30 days the Representative shall be KT Squared, LLC, until a successor thereto Representative is elected 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 Big Stuff Shareholderssuccessor 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 removed at genuine and may assume any time, and a successor representative, reasonably satisfactory Person purporting 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 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 deemed to refer to such successor. No appointment act on behalf of a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement. (c) 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 of this Section 9.6 shall in no way ----------- impose any obligations on Parent (other than those set forth in paragraph (c) above)Seller has been duly authorized. In particular, notwithstanding any notice received by Parent to the contrary (except any notice of the appointment of a successor Representative approved by Parent in accordance with paragraph (b) of this Section 9.6), Parent shall be entitled to assume that all ----------- actions, decisions and determinations of the Representative are fully authorized by the Big Stuff Shareholders. (e) The Representative shall not be liable to the Big Stuff Shareholders 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 such gross negligence, fraud, intentional misconduct, or bad faith. The Representative Losses shall be satisfied: (i) first from the Representative Expense Amount; and (ii) to the extent the amount of the Representative 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/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 performance 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 the extent such amounts or not available or are insufficient, shall be paid by 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). 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 Representative itself. Without limiting the foregoing, ▇▇▇▇▇ ▇▇▇▇▇▇, Adv., and such other Persons as may be designated in writing by the Representative, are hereby authorized to act on behalf of the Representative, and the Investor may rely on any such act or deed as the failure to valid 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 for a purpose which he reasonably believed to be in the best interests deed of the Big Stuff ShareholdersRepresentative.