Common use of Escrow Representative Clause in Contracts

Escrow Representative. (a) Communications Investors LLC is hereby designated by the Company and its Company Common Equityholders to serve as the agent of such Company Common Equityholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common Equityholders, and shall be authorized to act on behalf of the Company Common Equityholders and to take any and all actions required or permitted to be taken by the Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC The Escrow Representative is hereby designated by appointed as of the Company and its Company Common Equityholders to serve date hereof as the exclusive agent and attorney in fact of such Company Common Equityholders, the Indemnifying Parties as the initial Escrow Representative hereunder for and on behalf of the Indemnifying Parties to give and receive notices and communications in connection with respect to the matters set forth this Agreement and related matters, including in connection with claims for indemnification under this Article VII and to agree to, negotiate, and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Escrow Representative for the accomplishment of the foregoing or (ii) specifically mandated by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow of this Agreement. Effective only upon Notwithstanding the Effective Timeforegoing, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common Equityholders, and shall be authorized have no obligation to act on behalf of the Company Common Equityholders Indemnifying Parties, except as expressly provided herein, and for purposes of clarity, there are no obligations of the Escrow Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Such agency may be changed by the Indemnifying Parties from time to time upon not less than ten (10) days prior written notice to Parent; provided, however, that the Escrow Representative may not be removed unless holders of a majority-in-interest of the Escrow Fund agree to such removal and to take the identity of the substituted agent. A vacancy in the position of Escrow Representative may be filled by the holders of a majority-in-interest of the Escrow Fund. No bond shall be required of the Escrow Representative. Notices or communications to or from the Escrow Representative shall constitute notice to or from the Indemnifying Parties. The powers, immunities and rights to indemnification granted to the Escrow Representative and the Advisory Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Indemnifying Party and shall be binding on any successor thereto, and all actions required (ii) shall survive the delivery of an assignment by any Indemnifying Party of the whole or permitted any fraction of his, her or its interest in the Escrow Fund. (b) Certain Indemnifying Parties have entered into a letter agreement with the Escrow Representative to provide direction to the Escrow Representative in connection with the performance of its services under this Agreement (such Indemnifying Parties, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Escrow Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Escrow Representative Group”) shall be taken liable for any act done or omitted hereunder as Escrow Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Escrow Representative Group and defend and hold the Escrow Representative Group harmless against any Loss, Liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Escrow Representative Group and arising out of or in connection with the acceptance or administration of the Escrow Representative Group’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Escrow Representative under (“Escrow Representative Expense”). The immunities and rights to indemnification shall survive the resignation or removal of the Escrow Representative or any member of the Advisory Group and the Closing and/or any termination of this Article VII with respect Agreement. The Indemnifying Parties acknowledge that the Escrow Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of its duties. Following the termination of the Escrow Period and the resolution of all pending claims made by the Indemnified Parties for Losses, the Escrow Representative shall have the right to recover the Escrow Representative Expenses first, from the Expense Fund, second from any remaining portion of the Escrow Fund prior to any distribution to the Indemnifying Parties (and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Escrow Representative Expenses actually incurred) and third, directly from the Indemnifying Parties. Upon receipt of such certificate, the Escrow Agent shall pay such Escrow Representative Expenses to the Escrow Representative. Parent Indemnitee agrees to consent in writing to the distribution, to the extent permitted herein, if so requested by the Escrow Agent. Notwithstanding the foregoing, the Escrow Representative’s right to recover Escrow Representative Expenses shall not prejudice Parent’s right to recover the full amount of indemnifiable Losses that Parent is entitled to recover from the Escrow Fund. (c) Upon the Closing, Parent shall wire to the Escrow Representative $150,000 (the “Expense Fund Amount”). The Expense Fund Amount shall be held by the Escrow Representative as agent and for indemnification the benefit of the Indemnifying Parties in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Representative for, any Escrow Representative Expenses incurred pursuant to this Article VII Agreement or any Escrow Representative letter agreement (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification“Expense Fund”). The Escrow Representative shall be will hold the only party entitled Expense Fund separate from its corporate funds and will not voluntarily make it available to assert its creditors in the rights event of the Company Common Equityholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as suchbankruptcy. The Escrow Representative is not providing any investment supervision, recommendations or advice and shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents have no responsibility or employees, if any, shall be liable to any person liability for any error loss of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in principal of the case Expense Fund other than as a result of its gross negligence or willful misconduct. The Escrow Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations hereunder. As soon as reasonably determined by the Escrow Representative that the Expense Fund is no longer required to be withheld, Escrow Representative shall not have any duty to ascertain or to inquire as distribute the remaining Expense Fund (if any) to the performance Escrow Agent (or observance of any of directly to the terms, covenants Paying Agent or conditions of this AgreementParent if so instructed) for further distribution to the Indemnifying Parties. (cd) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than entitled to: (i) as expressly authorized by this Agreement or rely upon the Escrow Agreement or Spreadsheet, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Indemnifying Party or other party. A decision, act, consent or instruction of the Escrow Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the written request Indemnifying Parties and such Indemnifying Party’s successors as if expressly confirmed and ratified in writing by such Indemnifying Party; and each Indemnifying Party waives any and all defenses which may be available to contest, negate or disaffirm the action of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder shall jointly and severally indemnify the Escrow Representative taken in good faith under this Agreement. The Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Escrow Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from and against any Liability to any Person for any acts done by them in accordance with such Company Common Equityholder’s ratable share decision, act, consent or instruction of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC is hereby designated by the Company and its Company Common Equityholders stockholders to serve as the agent of such Company Common Equityholdersstockholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common EquityholdersStockholders, and shall be authorized to act on behalf of the Company Common Equityholders Stockholders and to take any and all actions required or permitted to be taken by the Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders Stockholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders Stockholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders Stockholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders Company’s stockholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders Stockholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder Stockholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common EquityholderStockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC Xxxxxxx X. Xxxx is hereby designated by the Company and its Company Common Equityholders stockholders to serve as the agent of such Company Common Equityholdersstockholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII VII, and by its his signature below it Xx. Xxxx hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common EquityholdersStockholders, and shall be authorized to act on behalf of the Company Common Equityholders Stockholders and to take any and all actions required or permitted to be taken by the Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders Stockholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders Stockholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders Stockholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders Stockholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders Stockholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder Stockholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common EquityholderStockholder’s ratable share (based upon the aggregate value of the Merger Consideration received by such Company Stockholder) of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC is The Seller hereby designated by appoints Xxxxxx X. Xxxx as its agent and attorney-in-fact (the Company "Escrow Representative"), for and its Company Common Equityholders to serve as the agent of such Company Common Equityholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common Equityholders, and shall be authorized to act on behalf of the Company Common Equityholders Seller, to --------------------- give and receive notices and communications, to take any and all actions required or permitted authorize payment to be taken by Buyer of cash from the Escrow Representative under this Article VII with respect Fund in satisfaction of claims by Buyer, to any claims made by any Parent Indemnitee for indemnification pursuant object to this Article VII (includingsuch payments, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect toto such claims, any claims for indemnification). The and to take all actions necessary or appropriate in the judgment of the Escrow Representative for the accomplishment of the foregoing. Such agency may be changed by Seller from time to time upon not less than fifteen (15) days prior written notice to Buyer. No bond shall be the only party entitled to assert the rights required of the Company Common Equityholders hereunder Escrow Representative, and any compensation the Escrow Representative receives for his or her services shall be paid by the Seller. Notices or communications to or from the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled constitute notice to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Timeor from Seller. (b) The Company Common Equityholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur liable for any expense, hire any consultant, advisor act done or legal counsel, or take any action other than (i) omitted hereunder as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon Representative while acting in good faith and in the written request exercise of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Sharesreasonable judgment. Each Company Common Equityholder Seller shall jointly and severally indemnify the Escrow Representative from and hold the Escrow Representative harmless against such Company Common Equityholder’s ratable share any loss, liability or expense incurred without negligence or bad faith on the part of any the Escrow Representative and all liabilitiesarising out of or in connection with the acceptance or administration of the Escrow Representative's duties hereunder, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered Representative on behalf of the Seller or incurred by to advise the Escrow Representative arising out of as to his or resulting from any such action taken or omitted her duties under this Agreement. After all claims for Losses by Buyer set forth in Officer's Certificates delivered to be taken by the Escrow Agent and the Escrow Representative have been satisfied, or reserved against or resolved in its capacity as Seller's favor, the Escrow Representative under this Article VIIRepresentative, with the consent of Seller, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Escrow Representative's representation hereby. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity.-40- (dc) In the event that A decision, act, consent or instruction of the Escrow Representative shall resign constitute a decision of Seller and shall be final, binding and conclusive upon the Seller; and the Escrow Agent and Buyer may rely upon any such decision, act, consent or be unable to act for any reason, instruction of the Escrow Representative (as being the decision, act, consent or hisinstruction of the Seller. The Escrow Agent and Buyer are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, her act, consent or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be instruction of the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC is By approval of this Agreement in accordance with Alabama Law, the Exchanging Shareholders hereby designated by the Company and its Company Common Equityholders appoint Xxxxx X. Xxxxxx to serve as the agent of such Company Common Equityholders, as the initial Escrow Representative hereunder with respect pursuant to the matters set forth in this Article VII Agreement and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including Xxxxx X. Xxxxxx and any successor or successors thereto) shall act as the representative of the Company Common EquityholdersExchanging Shareholders and the Debt Holders, and shall be authorized to act on behalf of the Company Common Equityholders Exchanging Shareholders and Debt Holders and to take any and all actions required or permitted to be taken by the Escrow Representative under this Article VII Agreement or the Escrow Agreement, with respect to any claims (including the settlement thereof) made by any Parent Indemnitee Parent, Cybex or Subsidiary for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements Section 9.1 and compromises of, and comply with orders of courts with respect to, to any claims for indemnification). The Escrow Representative shall actions to be the only party entitled to assert the rights of the Company Common Equityholders hereunder and taken by the Escrow Representative shall perform all of pursuant to the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions terms of the Escrow RepresentativeAgreement. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock The Exchanging Shareholders and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders Debt Holders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as suchthereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.1(f). The Escrow Representative shall promptly, and in any event within ten five (105) Business Daysbusiness days, provide written notice to the Company Common Equityholders Exchanging Shareholders and Debt Holders of any action taken on behalf of them the Exchanging Shareholders and Debt Holders by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VIISection 9.1(f). The Escrow Representative shall at all times act in his or her capacity as Escrow Representative in a manner that the Escrow Representative believes to be in the best interest of the Exchanging Shareholders and Debt Holders. Neither the Escrow Representative (nor any of its directors, officers, agents or any employees, if any, applicable) shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken taken, under this Agreement or the Escrow Agreement, except in the case of its gross negligence negligence, bad faith or willful misconduct. The Escrow Representative may consult with legal counsel, independent public accountants and other experts selected by him or her and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of counsel, accountants or experts. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. (c) The . As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Escrow Representative shall not be authorized required to incur exercise any expense, hire any consultant, advisor or legal counsel, discretion or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Sharesaction. Each Company Common Equityholder Exchanging Shareholder and Debt Holder severally shall jointly indemnify and severally indemnify hold harmless and reimburse the Escrow Representative from and against such Company Common EquityholderExchanging Shareholder’s and Debt Holder’s ratable share of any and all liabilities, losses, damages, claims, costs cost or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs, or expenses arising out of or resulting from the Escrow Representative’s gross negligence, bad faith, or willful misconduct. The Escrow Representative is hereby authorized to, and shall, (i) accept on behalf of any Exchanging Shareholder any Deferred Merger Consideration to which such Exchanging Shareholder is entitled under this Article VIIAgreement and (ii) accept on behalf of any Debt Holder any Deferred Debt Consideration to which such Debt Holder is entitled under this Agreement. The Escrow Representative shall not be promptly pay any such Deferred Merger Consideration or Deferred Debt Consideration to the Exchanging Shareholder or Debt Holder entitled thereto pursuant to any compensation for histhe terms of this Agreement. In all matters relating to this Section 9.1, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable the only party entitled to act for any reasonassert the rights of the Exchanging Shareholders and the Debt Holders, and the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with perform all of the rights, powers, privileges and duties obligations of the predecessor Escrow Representative under this AgreementExchanging Shareholders and Debt Holders hereunder. Parent and Cybex shall be entitled to rely on all statements, representations, and decisions of the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC is hereby designated by the Company and its Company Common Equityholders stockholders to serve as the agent of such Company Common Equityholdersstockholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall 49 act as the representative of the Company Common EquityholdersStockholders, and shall be authorized to act on behalf of the Company Common Equityholders Stockholders and to take any and all actions required or permitted to be taken by the Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders Stockholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders Stockholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time. (b) The Company Common Equityholders Stockholders shall be bound by all actions taken by the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Company Common Equityholders Company’s stockholders of any action taken on behalf of them by the Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders Stockholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder Stockholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common EquityholderStockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any compensation for his, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC The Sellers hereby agree that it is hereby designated by the Company and its Company Common Equityholders desirable to serve as the agent of such Company Common Equityholders, as the initial Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the designate an exclusive representative of the Company Common Equityholders, and shall be authorized to act on behalf of the Company Common Equityholders and to take any and all actions required or permitted to be taken by Sellers for certain limited purposes, as designated in this Section 11.13. The Sellers hereby designate Holdings as the initial representative for the Sellers (the “Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (including, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises ofRepresentative”), and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be Holdings hereby accepts such designation subject to the only party entitled to assert the rights of the Company Common Equityholders hereunder and the Escrow Representative shall perform all of the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions of the Escrow Representative. For the purposes of terms set forth in this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock and any Company Options immediately prior to the Effective Time11.13. (b) The Company Common Equityholders Holdings may resign at any time effective upon the designation of a successor Escrow Representative. In the event that Holdings resigns, a new Escrow Representative shall be bound appointed by all actions taken a vote of Sellers who held a majority of the Acquired Interests immediately prior to the Closing, such appointment to become effective upon the written acceptance thereof by the new Escrow Representative, and Majority Buyer shall be given prompt written notice of such new Escrow Representative. (c) Holdings, as the Escrow Representative, shall have such powers and authority as are necessary to carry out the functions contemplated by the Escrow Representative Agreement, including the functions specified below. Holdings, as the Escrow Representative, shall be responsible, on behalf of any or all of the Sellers, for giving notices to, and receiving notices from, Majority Buyer and/or the Escrow Agent, and any such notice received by Majority Buyer and/or the Escrow Agent from Holdings in his, her or its capacity as such. The the Escrow Representative, or delivered to Holdings in its capacity as the Escrow Representative by Majority Buyer and/or the Escrow Agent, shall promptlybe binding upon each Seller. Each Seller hereby authorizes Holdings, and in as the Escrow Representative, to execute on behalf of each Seller any event within ten (10) Business Days, provide written notice amendments to the Company Common Equityholders Escrow Agreement on behalf of the Sellers. Any notice, communication, direction or document described herein which is received by any Buyer and signed by Holdings in its capacity as the Escrow Representative on behalf of the Sellers shall be deemed signed by the Sellers. (d) The Buyers will be entitled to rely conclusively, absolutely and exclusively, without inquiry, upon any action of the Escrow Representative as the action of each Seller in all matters relating to the Escrow Agreement and will not be liable to the Sellers or any other Person for any action taken on behalf or not taken in reliance upon the direction of them by the an Escrow Representative pursuant to the authority delegated to the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconductRepresentative. The Escrow Representative shall Buyers will not have any duty to ascertain or be obligated to inquire as to the performance or observance authority of any Escrow Representatives with respect to the taking of any action that such Escrow Representative takes on behalf of the terms, covenants or conditions of this AgreementSellers. (ce) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative under this Article VII. The Escrow Representative shall not be entitled to any fee, commission or other compensation for his, her or the performance of its services hereunder, but shall be entitled to the payment of all its expenses incurred as the Escrow Representative. Any expenses incurred by the Escrow Representative in such capacity. (d) In the event that its capacity as the Escrow Representative shall resign or be unable to act for any reason, borne 100% by the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested Sellers pro rata in accordance with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreementtheir Applicable Ownership Percentages.

Escrow Representative. (a) Communications Investors LLC is hereby designated In connection with and by virtue of the adoption of this Agreement by the Company Stockholders, each Escrow Participant shall be deemed to have irrevocably constituted and its Company Common Equityholders to serve appointed the Escrow Representative as the true and lawful agent and attorney-in-fact of such Company Common EquityholdersEligible Holder to act in the name, as the initial place and stead of such Escrow Representative hereunder Participant with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges administration of the Escrow Fund on behalf of such appointment and agrees to serve in such capacity on Escrow Participant under the terms and subject to the conditions set forth herein provisions of this Agreement and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common Equityholderssame may be from time to time amended, and shall be authorized to act do or refrain from doing all such further acts and things, and to execute all such documents on behalf of the Company Common Equityholders and to take any and all actions required or permitted to be taken by the such Escrow Representative under this Article VII with respect to any claims made by any Parent Indemnitee for indemnification pursuant to this Article VII (includingParticipant, without limitation, the exercise of the power to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claims for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders hereunder and as the Escrow Representative shall perform all of deem necessary or appropriate in connection with the obligations (other than payment) of the Company Common Equityholders under this Article VII. Any Person shall be entitled to rely on all statements, representations and decisions administration of the Escrow Representative. For Fund and other responsibilities of the purposes of Escrow Representative contemplated under this Section 7.5, “Company Common Equityholders” means Agreement and the holders of Company Common Stock and any Company Options immediately prior to the Effective TimeEscrow Agreement. (b) The Company Common Equityholders appointment of the Escrow Representative shall be bound by all deemed coupled with an interest and shall be irrevocable, and Parent and the Surviving Corporation may conclusively and absolutely rely, without inquiry, upon any actions taken by of the Escrow Representative as the acts of Escrow Participants appointing the Escrow Representative in his, her or its capacity as such. The Escrow Representative shall promptly, and in any event within ten (10) Business Days, provide written notice all matters with respect to the Company Common Equityholders administration of any action taken on behalf of them by the Escrow Representative pursuant Fund referred to the authority delegated to in this Agreement or the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. (c) The Escrow Representative shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or act on behalf of the Escrow Agreement or (ii) upon Participants with respect to the written request administration of the Company Common Equityholders entitled to a majority Escrow Fund and other responsibilities of the Escrowed Indemnity Shares. Each Company Common Equityholder shall jointly and severally indemnify the Escrow Representative hereunder notwithstanding any dispute or disagreement among such Escrow Participants, and Parent and the Surviving Corporation shall be entitled to rely on any and all action taken by the Escrow Representative under this Agreement without Liability to, or obligation to inquire of, any of the Escrow Participants. If the Escrow Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Escrow Representative shall be the Person that the majority of voting power of the Eligible Company Preferred Stock held by the Escrow Participants at the Closing appoint. The Escrow Representative shall be indemnified and held harmless by the Company Eligible Holders (severally in proportion to their respective Escrow Participation Percentages and not jointly) from and against such Company Common Equityholder’s ratable share of any and all liabilitiesLiability, lossesloss, damagescost, claims, costs damage or expenses expense (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representativeand experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) incurred or suffered or incurred by the Escrow Representative arising out as a result of or resulting from in connection with the Escrow Representative's duties under this Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such action taken Representative Loss is finally adjudicated to have been primarily caused by the gross negligence or omitted willful misconduct of the Escrow Representative, the Escrow Representative will reimburse the Escrow Participants the amount of such indemnified Representative Loss attributable to such gross negligence or willful misconduct. If not paid directly to the Escrow Representative by the Escrow Participants, any such Representative Losses may be taken recovered by the Escrow Representative from (i) the funds in its capacity as the Escrow Representative under Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Escrow Participants; provided, that while this Article VIISection 3.5(c) allows the Escrow Representative to be paid from the Escrow Representative Fund and the Escrow Fund, this does not relieve the Escrow Participants from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Escrow Representative from seeking any remedies available to it at law or otherwise. The Escrow Representative shall not be entitled to any compensation for his, her Participants acknowledge and agree that the foregoing indemnities will survive the resignation or its services in such capacity. (d) In the event that removal of the Escrow Representative shall resign or be unable to act for any reason, the Escrow Representative (or his, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor shall be deemed to be the Escrow Representative for all purposes termination of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this Agreement.

Escrow Representative. (a) Communications Investors LLC is hereby designated by the Company and its Company Common Equityholders to serve as the agent of such Company Common Equityholders, as the initial The Escrow Representative hereunder with respect to the matters set forth in this Article VII and by its signature below it hereby acknowledges such appointment and agrees to serve in such capacity on the terms and subject to the conditions set forth herein and in the Escrow Agreement. Effective only upon the Effective Time, the Escrow Representative (including any successor or successors thereto) shall act as the representative of the Company Common Equityholders, true and shall be authorized lawful attorney-in-fact to act for and on behalf of the Company Common Equityholders and Indemnitors in all matters relating to take any and all actions required or permitted to be taken by the Escrow Representative under arising out of this Article VII XIII and the liability or asserted liability for such Indemnitor hereunder, including specifically, but without limitation, accepting and agreeing to the liability of such Indemnitor with respect to any claims made by Indemnification Claim, objecting to any Parent Indemnitee for indemnification pursuant to this Article VII (includingIndemnification Claim, without limitationdisputing the liability of such Indemnitor, or the exercise amount of the power to agree tosuch liability, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect toto any Indemnification Claim and prosecuting and resolving such dispute as herein provided, accepting the defense, compromise and settlement of any claims Third Party Claim on behalf of such Indemnitor or refusing to accept the same, settling and compromising the Losses for indemnification). The Escrow Representative shall be the only party entitled to assert the rights of the Company Common Equityholders hereunder such Indemnitor hereunder, instituting and prosecuting such actions (including arbitration proceedings) as the Escrow Representative shall perform all deem appropriate in connection with any of the obligations (foregoing, retaining counsel, accountants, appraisers and other than payment) advisers in connection with any of the Company Common Equityholders under this Article VII. Any Person shall foregoing, all for the account of the Indemnitor, such Indemnitor agreeing to be entitled to rely on all statementsfully bound by the acts, representations decisions and decisions agreements of the Escrow Representative. For the purposes of this Section 7.5, “Company Common Equityholders” means the holders of Company Common Stock Representative taken and any Company Options immediately prior done pursuant to the Effective Timeauthority herein granted. (b) The Company Common Equityholders Escrow Representative shall assume no responsibility or liability whatsoever to any person other than to act in good faith on behalf of the Indemnitors under this Agreement. Each of NEON Systems and Scalable Software hereby agrees, and each Indemnitor, by such Indemnitor's receipt of any of the Merger Consideration, will be bound by all actions deemed to have agreed (each of NEON Systems, Scalable Software and such Indemnitor, a "Representative Indemnifying Party"), to indemnify the Escrow Representative for and to hold the Escrow Representative harmless against any losses, claims, damages or liabilities incurred on his part arising out of or in connection with his acting as the Escrow Representative pursuant hereto, as well as any legal or other expenses reasonably incurred in connection with investigating and defending any such loss, claim, damage or liability as such expenses are incurred, except to the extent any such loss, claim, damage or liability is due to the gross negligence or willful misconduct of the Escrow Representative. Each of the Representative Indemnifying Parties agrees that the Escrow Representative may consult with counsel of his own choice, and the Escrow Representative shall have full and complete authorization and protection for any action taken or suffered by the Escrow Representative hereunder in his, her or its capacity as such. The Escrow Representative shall promptly, good faith and in any event within ten (10accordance with the opinion or advice of such counsel. Each of the Representative Indemnifying Parties understands and agrees that the provisions of this Section 13.5(b) Business Days, provide written notice to for indemnification by the Company Common Equityholders Representative Indemnifying Parties of any action taken on behalf of them by the Escrow Representative pursuant to for the authority delegated to negligence of the Escrow Representative under this Article VII. Neither the Escrow Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Escrow Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this AgreementRepresentative. (c) The Escrow Representative NEON Systems and Scalable Software shall not be authorized to incur any expense, hire any consultant, advisor or legal counsel, or take any action other than (i) as expressly authorized by this Agreement or pay all the Escrow Agreement or (ii) upon the written request of the Company Common Equityholders entitled to a majority of the Escrowed Indemnity Shares. Each Company Common Equityholder shall jointly and severally indemnify the Escrow Representative from and against such Company Common Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Escrow Representative) suffered or incurred by the Escrow Representative arising out of or resulting from any such action taken or omitted to be taken by the Escrow Representative in its capacity as Escrow Representative Indemnifying Parties under this Article VII. The Escrow Representative Section 13.5(b) and shall not be entitled to any compensation for hisreimbursement of one-half of such costs and expenses out of, her or its services in such capacity. (d) In the event that the Escrow Representative shall resign or be unable to act for any reasonbut only out of, the Escrow Representative (or hisStock, her or its legal representative) shall select a successor Escrow Representative to fill such vacancy, and such successor which shall be deemed to be the Escrow Representative for all purposes only recourse of this Agreement. Upon the appointment of a successor Escrow Representative under this Agreement, such successor Escrow Representative will succeed to NEON Systems and become vested with all of the rights, powers, privileges and duties of the predecessor Escrow Representative under this Agreement, and the predecessor Escrow Representative will be discharged from such predecessor Escrow Representative’s duties and obligations under this AgreementScalable Software.