Common use of Appointment of Stockholder Representative Clause in Contracts

Appointment of Stockholder Representative. Each Indemnitor ----------------------------------------- constitutes and appoints the Stockholder Representative as his or her true and lawful attorney-in-fact to act for and on behalf of such Indemnitor in all matters relating to or arising out of this Article 10 and the liability or asserted liability of such Indemnitor hereunder, including specifically, but without limitation, accepting and agreeing to the liability of such Indemnitor with respect to any Indemnification Claim, objecting to any Indemnification Claim, disputing the liability of such Indemnitor, or the amount of such liability, with respect to any Indemnification Claim and prosecuting and resolving such dispute as herein provided, accepting the defense, compromise and settlement of any Third Party Claim on behalf of such Indemnitor or refusing to accept the same, settling and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) as the Stockholder Representative shall deem appropriate in connection with any of the foregoing, retaining counsel, accountants, appraisers and other advisers in connection with any of the foregoing, all for the account of the Indemnitor, such Indemnitor agreeing to be fully bound by the acts, decisions and agreements of the Stockholder Representative taken and done pursuant to the authority herein granted. Each Indemnitor hereby agrees to indemnify and to save and hold harmless the Stockholder Representative from any liability incurred by the Stockholder Representative based upon or arising out of any act, whether of omission or commission, of the Stockholder Representative pursuant to the authority herein granted, other than acts, whether of omission or commission, of the Stockholder Representative that constitute gross negligence or willful misconduct in the exercise by the Stockholder Representative of the authority herein granted.

Appointment of Stockholder Representative. Each Indemnitor ----------------------------------------- constitutes and appoints The Stockholders hereby appoint the Stockholder Representative as his or her true the representative of the Stockholders. The Stockholder Representative shall have full power and lawful attorney-in-fact authority to act for represent the Stockholders and on behalf of such Indemnitor in their successors and assigns with respect to all matters relating to or arising out of under this Article 10 and the liability or asserted liability of such Indemnitor hereunderAgreement, including specificallyincluding, but without limitation, accepting and agreeing to the liability of such Indemnitor with respect to any Indemnification Claim, objecting to any Indemnification Claim, disputing the liability of such Indemnitor, amendment or the amount of such liability, with respect to any Indemnification Claim and prosecuting and resolving such dispute as herein provided, accepting the defense, compromise and settlement waiver of any Third Party Claim on behalf provision of such Indemnitor or refusing to accept this Agreement, and all action taken by the same, settling and compromising the liability of such Indemnitor Stockholder Representative hereunder, instituting pursuant to authority granted herein, shall be binding upon each Stockholder and prosecuting such actions (including arbitration proceedings) their successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the foregoing, the Stockholder Representative shall deem have full power and authority, on behalf of all the Stockholders and their successors, to interpret all the terms and provisions of this Agreement, to negotiate and compromise any dispute which may arise under this Agreement, to sign any releases or other documents with respect thereto, and to retain such counsel and consultants as appropriate and necessary to carry out his duties under this Agreement. The Stockholder Representative, or any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Stockholder Representative as hereinafter provided. In case of such resignation, or in connection with any the event of the foregoing, retaining counsel, accountants, appraisers and other advisers in connection with any of the foregoing, all for the account of the Indemnitor, such Indemnitor agreeing death or inability to be fully bound by the acts, decisions and agreements act of the Stockholder Representative taken and done pursuant to Representative, a successor shall be named by a majority of the authority herein grantedremaining Stockholders. Each Indemnitor such successor Stockholder Representative shall have all the power, authority, rights and privileges hereby agrees conferred upon the original Stockholder Representative, and the term "Stockholder Representative" as used herein shall be deemed to include each such successor Stockholder Representative. The Stockholders shall indemnify and to save and hold harmless the Stockholder Representative from and against any direct or indirect demand, claim, payment, obligation, action or cause of action, assessment, loss, liability, cost or expense, including without limitation, penalties, interest on any amount payable to a third party as a result of the foregoing, and any legal or other expense reasonably incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability, and any amount paid in settlement of any claim or action, incurred in connection with the performance of his duties hereunder, including the advancement of expenses incurred in connection with investigating or defending any claim or action. The Stockholder Representative is authorized to take the actions set forth in this Agreement on behalf of the Stockholders, and Parent and Escrow Agent shall have no liability incurred by to the Stockholders for any act or failure to act of the Stockholder Representative based Representative. Parent and the Escrow Agent shall be entitled to rely upon or arising out of any act, whether of omission or commission, act of the Stockholder Representative as an act of the Stockholders pursuant to the authority herein granted, other than acts, whether of omission or commission, of the Stockholder Representative that constitute gross negligence or willful misconduct in the exercise by the Stockholder Representative of the authority herein grantedthis Agreement.

Appointment of Stockholder Representative. Each Indemnitor ----------------------------------------- constitutes (a) Pursuant to the Selling Stockholders Agreement, and appoints by voting in favor of or consenting to the Merger and/or by virtue of the approval of the Merger, the Junior Stockholders shall be deemed to have approved the designation of ABRY Partners, LLC (in such capacity the "Stockholder Representative as his or her true and lawful Representative") as, the attorney-in-fact to act and agent for and on behalf of such Indemnitor in all matters relating to or arising out of this Article 10 each Junior Stockholder and the liability or asserted liability of such Indemnitor hereundertheir respective heirs, including specifically, but without limitation, accepting successors and agreeing to the liability of such Indemnitor assigns with respect to any Indemnification Claimthe post-Closing adjustments contemplated by Section 2.4(e), objecting to any Indemnification Claim, disputing the liability of such Indemnitor, claims for indemnification under this Article IX or the amount Selling Stockholders Agreement and the taking by the Stockholder Representative of such liabilityany and all actions and the making of any decisions required or permitted to be taken by the Stockholder Representative under this Agreement, the Selling Stockholders Agreement and the Post-Closing Escrow Agreement, including the exercise of the power to: (a) authorize the release or delivery to Parent of all or any portion of the Post-Closing Escrow Fund or the Reserve Fund in satisfaction of the obligations (if any) with respect to the post-Closing adjustments contemplated by Section 2.4 and indemnification claims by Parent or any Indemnification Claim other Parent Indemnified Person pursuant to this Article IX; (b) agree to, negotiate, enter into settlements and prosecuting compromises of, and resolving comply with orders of courts with respect to, such dispute as herein providedindemnification claims; (c) litigate, accepting arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to this Article IX; (d) establish the defense, compromise Reserve Account and settlement of any Third Party Claim on behalf of pay such Indemnitor or refusing to accept the same, settling and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) amounts therefrom as the Stockholder Representative deems necessary or appropriate in its good faith judgment; and (e) take all actions necessary in the judgment of the Stockholder's Representative for the accomplishment of the foregoing. The Stockholder Representative shall deem appropriate have no authority or power to act on behalf of the Company, Parent or Surviving Corporation. The Stockholder Representative shall have authority and power to act on behalf of the Junior Stockholders with respect to the disposition, settlement or other handling of the adjustments contemplated by Section 2.4 and all claims under this Article IX and the Selling Stockholders Agreement and all rights or obligations arising under Section 2.4, this Article IX and the Selling Stockholders Agreement. The Junior Stockholders shall be bound by all actions taken and documents executed by the Stockholder Representative in connection with Section 2.4, this Article IX and the Selling Stockholders Agreement, and Parent shall be entitled to rely on any action or decision of the foregoingStockholder Representative. In performing the functions specified in this Agreement, retaining counsel, accountants, appraisers the Stockholder Representative may act upon any instrument or other writing believed by the Stockholder Representative in good faith to be genuine and other advisers to be signed or presented by the proper Person and shall not be liable in connection with any the performance by it of its duties pursuant to the foregoingprovisions of this Agreement, all for the account Post-Closing Escrow Agreement and the Selling Stockholders Agreement in the absence of gross negligence or willful misconduct on the Indemnitor, such Indemnitor agreeing to be fully bound by the acts, decisions and agreements part of the Stockholder Representative taken Representative. By approval of the Merger and done pursuant to the authority herein granted. Each Indemnitor Selling Stockholders Agreement, the Junior Stockholders hereby agrees agree severally, and not jointly, to indemnify and to save and hold harmless the Stockholder Representative (out of funds that otherwise are to be distributed from the Post-Closing Escrow Fund or the Reserve Fund to the Junior Stockholders, if any, as described in the following sentence) from and against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. Any liability for any such loss, liability or expense will be borne by the Junior Stockholders pro rata based upon the respective portions of the Merger Consideration received by such Junior Stockholders. Any out-of-pocket costs and expenses incurred by the Stockholder Representative based upon or arising out of any act, whether of omission or commission, of in connection with actions taken by the Stockholder Representative pursuant to the authority herein grantedterms of Section 2.4, other than actsthis Article IX or the Selling Stockholders Agreement (including the hiring of legal counsel and the incurring of legal fees and costs, whether "Representative Expenses") shall be the responsibility of omission or commissionthe Junior Stockholders. Without limiting the generality of the foregoing, of the Stockholder Representative that constitute gross negligence shall have full power and authority to interpret all the terms and provisions of this Agreement, the Post-Closing Escrow Agreement and the Selling Stockholders Agreement, and to consent to any amendment hereof or willful misconduct in thereof, on behalf of all the exercise by the Stockholder Representative of the authority herein grantedJunior Stockholders and their respective heirs, successors and assigns.

Appointment of Stockholder Representative. (a) Each Indemnitor ----------------------------------------- constitutes and Stockholder hereby irrevocably appoints the Shareholder Representative Services LLC as his, her or its representative (“Stockholder Representative Representative”), as his or her true and lawful agent and attorney-in-fact fact, with full power of substitution, with full power and authority to act for and on behalf of such Indemnitor in Stockholder for all matters relating to or arising out purposes of this Article 10 Agreement and the liability Ancillary Documents, and with respect to the consummation of the transactions contemplated by this Agreement and the Ancillary Documents, agrees to be bound by the provisions of this Agreement or asserted liability other such agreements and the terms of such Indemnitor hereundertransactions. Stockholder Representative hereby accepts such appointment. Stockholder Representative may take any and all actions that it believes are reasonably necessary or appropriate under this Agreement and the Ancillary Documents, including specificallyinterpreting all of the terms and provisions of this Agreement and the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, but without limitationpursuant to this Agreement, accepting has the exclusive authority to act on his, her or its behalf in connection with this Agreement, the Ancillary Documents and agreeing other transaction documents and related matters, including (i) authorization of payments to be made by any Stockholder or Stockholder Representative under this Agreement or any Ancillary Document, (ii) directing the liability distribution of such Indemnitor all payments and amounts to any Stockholder, (iii) the giving and receiving of notices to be given or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer under this Agreement or any Ancillary Document, including with respect to any Indemnification Claim, objecting adjustments to any Indemnification Claim, disputing the liability of such IndemnitorPurchase Price pursuant to Section 2.5, or take any actions and exercise such other power, rights and authority as set forth herein, (v) the amount of such liability, right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Indemnification Claim Ancillary Document, and prosecuting related documents, (vi) the right to waive any condition or provision of this Agreement or any Ancillary Document and resolving such dispute as herein providedto take any other action under this Agreement or any Ancillary Document, accepting including amending this Agreement or any Ancillary Document in any respect, prior to or after the defense, compromise and settlement of any Third Party Claim Closing on behalf of such Indemnitor Stockholder, and (vii) taking any and all other actions specified in or refusing to accept the same, settling contemplated by this Agreement or any Ancillary Document. All decisions and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) as the by Stockholder Representative permitted by this Agreement shall deem appropriate be binding upon all Stockholders, and no Stockholder shall have any right to object, dissent, protest or otherwise contest the same and all Stockholders agree to be severally and not jointly (in connection accordance with any their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all of the foregoing, retaining counsel, accountants, appraisers and other advisers in connection with any of the foregoing, all for the account of the Indemnitor, such Indemnitor agreeing to be fully bound by the acts, decisions and agreements of the Stockholders. The Stockholder Representative taken and done pursuant to may resign at any time upon 30 day’s advance written notice. Upon the authority herein granted. Each Indemnitor hereby agrees to indemnify and to save and hold harmless the death or resignation of Stockholder Representative from any liability incurred by the appointed hereby, Stockholders shall appoint a replacement Stockholder Representative based upon or arising out who shall possess and assume the rights, powers, duties and obligations of any act, whether of omission or commission, of the Stockholder Representative pursuant to with the authority herein granted, other than acts, whether of omission or commission, of the same effect as though such substitute representative had originally been Stockholder Representative that constitute gross negligence or willful misconduct in the exercise by the Stockholder Representative of the authority herein grantedunder this Agreement.

Appointment of Stockholder Representative. (a) Each Indemnitor ----------------------------------------- constitutes and appoints the Stockholder Representative as Equityholder, by voting to approve this Agreement, surrendering his or her true Certificate(s) or by executing and lawful delivering the letter of transmittal, attached hereto as Exhibit D, irrevocably authorizes, directs and appoints Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Equityholders (the “Stockholder Representative”) to act as sole and exclusive agent, attorney-in-fact to act for and on behalf Representative of such Indemnitor in Equityholder and such Equityholder’s heirs, Representatives and successors for all purposes and of all matters relating to or arising out of this Article 10 Agreement and the liability or asserted liability of such Indemnitor hereunderTransaction Agreements, including specifically, but without limitation, accepting and agreeing to the liability of such Indemnitor with respect to any Indemnification Claim, objecting to any Indemnification Claim, disputing the liability of such Indemnitor, or the amount of such liability, with respect to any Indemnification Claim and prosecuting and resolving such dispute as herein provided, accepting the defense, compromise and settlement of any Third Party Claim on behalf of such Indemnitor or refusing to accept the same, settling and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) as the Stockholder Representative shall deem appropriate in connection with any hereby accepts such appointment. Without limiting the generality of the foregoing, retaining counselthe Stockholder Representative is specifically empowered and authorized by the Equityholders to: (i) take any and all actions (including without limitation executing and delivering any documents), accountants, appraisers incurring any costs and other advisers in connection with any of the foregoing, all expenses for the account of the IndemnitorEquityholders (including but not limited to employing accountants, investment banks, appraisers, and other experts, attorneys and such Indemnitor agreeing to be fully bound by the acts, decisions and agreements of other agents as the Stockholder Representative may deem advisable and to pay from the Administrative Account compensation for their services) and making any and all determinations which may be required or permitted to be taken by the Equityholders in connection with this Agreement and done pursuant any other applicable Transaction Agreement, including but not limited to the authority herein granted. Each Indemnitor hereby agrees Escrow Agreement, (ii) review all Claims asserted by Purchaser and, to indemnify and to save and hold harmless the extent deemed appropriate by Stockholder Representative from (in its sole and absolute discretion), dispute, question the accuracy of, compromise, settle or otherwise resolve any liability incurred and all such Claims under this Agreement; (iii) authorize payments to be made with respect to any such Claims; (iv) execute and deliver on behalf of such Equityholders any document or agreement contemplated by the Stockholder Representative based upon or arising out necessary or desirable in connection with this Agreement, including but not limited to any amendment of, or waiver to, any provision of this Agreement or any act, whether of omission other Transaction Agreement; and (v) take such further actions (including coordinating and administering post-closing matters) as are contemplated by or commission, of the Stockholder Representative pursuant to the authority herein granted, other than acts, whether of omission necessary or commission, of the Stockholder Representative that constitute gross negligence desirable in connection with this Agreement or willful misconduct in the exercise by the Stockholder Representative of the authority herein grantedany Transaction Agreement.

Appointment of Stockholder Representative. Each Indemnitor ----------------------------------------- constitutes (a) The Company Holders hereby appoint, as of the date of this Agreement with retroactive effect if necessary, ABRY Partners V, L.P. as the representative of the Company Holders as described in this Section 9.8 and appoints elsewhere in this Agreement (in such capacity, the “Stockholder Representative”). The Stockholder Representative is designated as his or her true and lawful the attorney-in-fact to act and agent for and on behalf of such Indemnitor in all matters relating to or arising out of this Article 10 each Company Holder and the liability or asserted liability of such Indemnitor hereundertheir respective heirs, including specifically, but without limitation, accepting successors and agreeing to the liability of such Indemnitor assigns with respect to the post-Closing adjustments contemplated by Section 2.3(e), claims for indemnification under this Article IX and the taking by the Stockholder Representative of any Indemnification Claimand all actions and the making of any decisions required or permitted to be taken by the Stockholder Representative under this Agreement and the Escrow Agreement, objecting including the exercise of the power to: (i) authorize the release or delivery to Parent of all or any Indemnification Claim, disputing portion of the liability of such Indemnitor, Escrow Funds or the amount Sellers’ Expense Fund in satisfaction of such liability, the obligations (if any) with respect to the post-Closing adjustments contemplated by Section 2.3 and indemnification claims by any Indemnification Claim Buyer Indemnified Person pursuant to this Article IX; (ii) agree to, negotiate, enter into settlements and prosecuting compromises of, and resolving comply with orders of courts with respect to, such dispute as herein providedindemnification claims; (iii) litigate, accepting arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to this Article IX; (iv) establish the defense, compromise Sellers’ Expense Fund and settlement of any Third Party Claim on behalf of pay such Indemnitor or refusing to accept the same, settling and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) amounts therefrom as the Stockholder Representative shall deem deems necessary or appropriate in connection with any of its good faith judgment; and (v) take all actions necessary in the foregoing, retaining counsel, accountants, appraisers and other advisers in connection with any of the foregoing, all for the account of the Indemnitor, such Indemnitor agreeing to be fully bound by the acts, decisions and agreements judgment of the Stockholder Representative for the accomplishment of the foregoing. The Stockholder Representative shall have no authority or power to act on behalf of the Company. The Stockholder Representative shall have authority and power to act on behalf of the Company Holders with respect to the disposition, settlement or other handling of the adjustments contemplated by Section 2.3 and all claims under this Article IX and all rights or obligations arising under Section 2.3 and this Article IX or otherwise as contemplated by this Agreement. The Company Holders shall be bound by all actions taken and done documents executed by the Stockholder Representative in connection with Section 2.3 and this Article IX, and Parent shall be entitled to rely on any action or decision of the Stockholder Representative. In performing the functions specified in this Agreement, the Stockholder Representative may act upon any instrument or other writing believed by the Stockholder Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the performance by it of its duties pursuant to the authority herein grantedprovisions of this Agreement and the Escrow Agreement. Each Indemnitor hereby agrees The Stockholder Representative shall be indemnified and held harmless (out of funds that otherwise are to indemnify and be distributed from the Escrow Funds or the Sellers’ Expense Fund to save and hold harmless the Company Holders, if any, or other amounts paid to the Stockholder Representative on behalf of the Company Holders behalf pursuant to Section 2.3(e), as described in this Section 9.8) from and against any loss, liability or expense incurred on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. Any out-of-pocket costs and expenses incurred by the Stockholder Representative based upon or arising out of any act, whether of omission or commission, of in connection with actions taken by the Stockholder Representative pursuant to the authority herein grantedterms of Section 2.3 or this Article IX or otherwise in connection with this Agreement including the hiring of legal counsel and the incurring of legal fees and costs, other than acts(“Representative Expenses”), whether shall be the responsibility of omission or commissionthe Company Holders. Without limiting the generality of the foregoing, of the Stockholder Representative that constitute gross negligence shall have full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement, and to consent to any amendment hereof or willful misconduct in thereof, on behalf of all the exercise by the Stockholder Representative of the authority herein grantedCompany Holders and their respective heirs, successors and assigns.

Appointment of Stockholder Representative. Each Indemnitor ----------------------------------------- constitutes (a)In order to, among other things, administer efficiently the determination and appoints payment of the Stockholder Merger Consideration and the defense and/or settlement of any claims for Losses for which the Stockholders and the Optionholders may be required to indemnify Buyer and its Affiliates pursuant to Sections 8.2 and 8.3 hereof, the Stockholders and the Optionholders, by their adoption and approval of this Agreement, as well as, in certain cases, through separate instruments, irrevocably appoint the Representative as his or her true their agent, attorney in fact and lawful attorney-in-fact representative (with full power of substitution in the premises), and, by its execution hereof, the Representative hereby accepts such appointment. (b)The Representative is hereby authorized (i) to act take all action necessary in connection with the acceptance, rejection, determination and payment of the Merger Consideration and the defense and/or settlement of any claims for and Losses (including the power to compromise any indemnity claim on behalf of such Indemnitor in all matters relating to or arising out of this Article 10 the Stockholders and the liability Optionholders and to transact matters of litigation) for which the Stockholders and the Optionholders may be required to indemnify Buyer and its Affiliates pursuant to Sections 8.2 and 8.3 hereof, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which all of the Stockholders and Optionholders are subject, and (iii) to do or asserted liability of refrain from doing all such Indemnitor hereunderfurther acts and things, including specifically, but without limitation, accepting and agreeing to the liability of execute all such Indemnitor with respect to any Indemnification Claim, objecting to any Indemnification Claim, disputing the liability of such Indemnitor, or the amount of such liability, with respect to any Indemnification Claim and prosecuting and resolving such dispute as herein provided, accepting the defense, compromise and settlement of any Third Party Claim on behalf of such Indemnitor or refusing to accept the same, settling and compromising the liability of such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) documents as the Stockholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power: (A)to execute and deliver the Escrow Agreement and any amendments thereto as the representative of the foregoingStockholders and the Optionholders; to execute any instructions or directions to the Escrow Agent with respect to disbursements or other matters thereunder; and to take such further actions under the Escrow Agreement as the Representative deems to be necessary or appropriate; (B)to execute and deliver all amendments, retaining counselwaivers, accountantsancillary agreements, appraisers stock powers, certificates and other advisers documents that the Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, whether prior to, at or after the Closing; (C)to execute and deliver all amendments and waivers to this Agreement that the Representative deems necessary or appropriate, whether prior to, at or after the Closing; provided that any such amendment, if material to the rights and obligations of such Stockholders or Optionholders in the reasonable judgment of the Representative, shall be taken in the same manner with respect to all such Stockholders and Optionholders, unless otherwise agreed by each such Stockholder or Optionholder who is subject to any disparate treatment of a potentially adverse nature; (D)to receive funds, make payments of funds, and give receipts for funds; (E)to receive funds for the payment of expenses of the 64 Stockholders and the Optionholders, to deposit such funds in such accounts as the Representative deems appropriate and apply or reserve such funds in payment for such expenses, including holding the Representative Administrative Amount. (F)to do or refrain from doing any further act or deed on behalf of the Stockholders and the Optionholders that the Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Stockholders and the Optionholders could do if personally present; and (G)to receive service of process in connection with any claims under this Agreement. (c)In the event that the Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Stockholders and the Optionholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the foregoingvoting power represented by the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (on an as-converted, as exercised basis), shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Representative for all purposes of this Agreement. (d)All decisions and actions by the Representative, including the defense or settlement of any claims for Losses for which the account Stockholders and Optionholders may be required to indemnify Buyer and its Affiliates pursuant to Sections 8.2 and 8.3 hereof, shall be binding upon all of the IndemnitorStockholders and Optionholders, such Indemnitor agreeing and no Stockholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same. (e)Buyer shall be able to rely conclusively on the instructions and decisions of the Representative as to the determination and payment of the Closing Consideration and the Final Consideration, amounts to be fully bound paid from the Escrow Amount and the settlement of any claims for Losses for which the Stockholders and Optionholders may be required to indemnify Buyer and its Affiliates pursuant to Sections 8.2 and 8.3 hereof and any other actions required to be taken by the actsRepresentative hereunder, and no party hereunder or Stockholder or Optionholder shall have any cause of action against Buyer or Merger Sub for any action taken by Buyer or Merger Sub in reliance upon the instructions or decisions of the Representative. (f)All actions, decisions and agreements instructions of the Representative shall be conclusive and binding upon all of the Stockholders and Optionholders, and no Stockholder or Optionholder shall have any cause of action against the Representative for any action taken or not taken, decision made or instruction given by the Representative under this Agreement, except for fraud, gross negligence or willful misconduct by the Representative. (g)The provisions of this Section 10.14 are independent and done severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder or Optionholder may have in connection with the transactions contemplated by this Agreement. (h)The provisions of this Section 10.14 shall be binding upon the heirs, legal 65 representatives, successors and assigns of each Stockholder and Optionholder, and any references in this Agreement to a Stockholder or an Optionholder or the Stockholders or Optionholders shall mean and include the successors to the rights of the Stockholders and Optionholders hereunder, whether pursuant to testamentary disposition, the authority herein grantedlaws of descent and distribution or otherwise. Each Indemnitor hereby agrees to indemnify (i)All reasonable fees and to save and hold harmless the Stockholder Representative from any liability expenses incurred by the Stockholder Representative in connection with this Agreement shall be paid by the Stockholders and Optionholders on a pro‑rata basis based upon on their respective Common Percentages. Representative shall first pay any such fees and expenses from the Representative Administrative Amount. The amount of the Representative Administrative Amount or arising out other amounts (if any) held by the Representative after the final resolution of all Claims asserted hereunder, shall be distributed by the Representative to the Stockholders and Optionholders in accordance with their respective Common Percentages; provided that the portion of any act, whether of omission or commission, such distribution allocable to the Optionholders shall be remitted by the Representative to the Surviving Corporation and shall be made by the Surviving Corporation to each of the Stockholder Optionholders through the Surviving Corporation's payroll system in accordance with the Surviving Corporation's regular payroll practices then in effect. For the avoidance of doubt, under no circumstances shall the Representative pursuant Administrative Amount be deemed to comprise part of the Escrow Amount. (j)The Representative shall be indemnified by the Indemnifying Equityholders for, and shall be held harmless against, any loss, liability or expense incurred by the Representative or any of its Affiliates and any of their respective directors, officers, employees, agents, stockholders, members, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the authority herein grantedRepresentative's conduct as Representative (collectively, the “Representative Parties”), other than actslosses, whether of omission liabilities or commission, of expenses resulting from the Stockholder Representative that constitute Representative's gross negligence or willful misconduct in connection with its performance under this Agreement and the exercise Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. The Indemnifying Equityholders agree that the Representative may, in all questions arising under this Agreement and the other Transaction Documents, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholder Representative in accordance with such advice of counsel, the Representative shall not be liable to the Indemnifying Equityholders. The Indemnifying Equityholders, by approval of this Agreement, agree that in no event shall the Representative Parties be liable under this Agreement and the other Transaction Documents to the Indemnifying Equityholders for (i) any indirect, punitive, special or consequential damages or (ii) any amounts other than those that are satisfied out of the authority herein granted.Escrow Fund. Nothing in this Section 10.14(j) shall in any way terminate, amend, modify, alter, limit or otherwise affect the obligations of the Indemnifying Equityholders under any provision of this Agreement or any of the other Transaction Documents to any Person other than the Indemnifying Equityholders' obligations to the Representative Parties relating to the Representative's conduct as Representative. * * * * 66