Common use of Indemnification of Shareholders’ Representative Clause in Contracts

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Shareholders' Representative shall incur no liability to the Shareholders or the Escrow Agent or any other person with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Shareholders' Representative to be genuinely and duly authorized by at least a Majority in Interest of the Shareholders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders for its own gross negligence or willful misconduct. The Shareholders' Representative shall be indemnified by the Shareholders (and Warrantholders) for and shall be held harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Shareholders' Representative arising out of or in connection with its performance under this Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement. For all purposes hereunder, a "Majority in Interest" of the Shareholders shall be determined on the basis of each Shareholder's ownership of MCE Common Stock immediately prior to the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time). The Shareholders' Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' Representative in accordance with such advice, the Shareholders' Representative shall not be liable to the Shareholders or the Escrow Agent or any other person. In no event shall the Shareholders' Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such Shareholders' Representative's costs and expenses, to the extent required by this Article X.

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Shareholders' Representative shall incur no liability to the Shareholders Holders or the Escrow Agent or any other person with respect to any action taken or suffered by him it in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Shareholders' Representative to be genuinely and duly authorized by at least a Majority majority in Interest interest of the Shareholders Holders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders Holders for its own gross negligence or willful misconduct. The Shareholders' Representative shall be indemnified by the Shareholders (and Warrantholders) Holders out of the Reimbursement Fund for and shall be held harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of by the Shareholders' Representative arising out or any of its Affiliates and any of its partners, directors, officers, employees, agents, Holders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders' Representative's conduct as Shareholders' Representative, other than such losses, liabilities or expenses resulting from the Shareholders' Representative's willful misconduct in connection with its their performance under this Holder Agreement, the Reorganization Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid from the principal portion of the Reimbursement Fund. For all purposes hereunder, a "Majority in Interest" majority-in-interest of the Shareholders Holders shall be determined on the basis of each Shareholdersuch Holder's ownership of MCE GraphOn Common Stock received upon conversion of the Holder's shares of NES Common Stock in connection with the Merger immediately prior to following the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time). Merger I. The Shareholders' Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' Representative in accordance with such advice, the Shareholders' Representative shall not be liable to the Shareholders or the Escrow Agent or any other person. In no event shall the Shareholders' Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such the Shareholders' Representative's costs and expenses, to the extent required by this Article X.Section 2.2(c).

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Each Shareholder shall severally indemnify and hold the Shareholders' Representative harmless from and against any Damages (except as result from such Person's gross negligence or willful misconduct) that such Person may suffer or incur in connection with any action taken by such Person as the Shareholders' Representative. Each Shareholder shall bear its pro-rata portion of such Damages. No Shareholders' Representative shall incur no liability be liable to the Shareholders or the Escrow Agent or any other person Shareholder with respect to any action or omission taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed omitted to be taken by the Shareholders' Representative pursuant to be genuinely and duly authorized by at least a Majority in Interest of the Shareholders (or the successors or assigns thereto)this Article X, nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders for its own such person's gross negligence or willful misconduct. No Shareholders' Representative shall be responsible in any manner whatsoever for any failure or inability of Parent or Sub, or of anyone else, to honor any of the provisions of this Agreement. The Shareholders' Representative shall be indemnified fully protected by the Shareholders (in acting on and Warrantholders) for and shall be held harmless against relying upon any losswritten notice, liability direction, request, waiver, notice, consent, receipt or expense incurred without gross negligence other paper or willful misconduct on the part of the Shareholders' Representative arising out of or in connection with its performance under this Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement. For all purposes hereunder, a "Majority in Interest" of the Shareholders shall be determined on the basis of each Shareholder's ownership of MCE Common Stock immediately prior to the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time). The Shareholders' Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered document which they in good faith believe to be genuine and to have been signed or presented by the Shareholders' Representative in accordance with such advice, the proper party or parties. The Shareholders' Representative shall not be liable to the Shareholders or the Escrow Agent for any error of judgment, or any other personact done or step taken or omitted by any of them in good faith or for any mistake in fact or law, or for anything which any of them may do or refrain from doing in connection herewith, except for their own bad faith, willful misconduct or gross negligence. In The Shareholders' Representative may seek the advice of legal counsel, engage experts or otherwise incur reasonable expenses in the event of any dispute or question as to the construction of any of the provisions of this Agreement or their duties hereunder, and they shall incur no event liability to Shareholders with respect to any action taken, omitted or suffered by them in good faith in accordance with the opinion of such counsel. The Shareholders shall severally hold the Shareholders' Representative be liable hereunder or harmless from and against any and all such expenses, and, in connection herewith for (i) addition to any indirectand all other remedies available, punitive, special or consequential damages, or (ii) the Shareholders' Representative shall have the right to set-off against any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such Shareholders' Representative's costs and expenses, due to the extent required by this Article X.Shareholders.

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Shareholders' Representative shall incur no liability to the Shareholders Holders or the Escrow Agent or any other person with respect to any action taken or suffered by him it in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Shareholders' Representative to be genuinely and duly authorized by at least a Majority majority in Interest interest of the Shareholders Holders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders Holders for its own gross negligence or willful misconduct. The Shareholders' Representative shall be indemnified by the Shareholders Holders out of the Remaining Shares (and Warrantholdersas defined below) for and shall be held harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of by the Shareholders' Representative arising out or any of its Affiliates and any of its partners, directors, officers, employees, agents, Holders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders' Representative's conduct as Shareholders' Representative, other than such losses, liabilities or expenses resulting from the Shareholders' Representative's willful misconduct in connection with its their performance under this Holder Agreement, the Reorganization Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement. Such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be borne pro rata by the Holders and paid solely out of the Deposited Shares, if any, that remain after the full and final satisfaction of all claims asserted as of the Initial Termination Date (the "Remaining Shares"). In no event shall a Holder be liable to the Shareholders' Representative for any liabilities or expenses incurred by the Shareholders' Representative in excess of such Holder's pro rata portion of the Remaining Shares. For all purposes hereunder, a "Majority in Interest" majority-in-interest of the Shareholders Holders shall be determined on the basis of each Shareholdersuch Holder's ownership of MCE GraphOn Common Stock received upon conversion of the Holder's shares of NES Common Stock in connection with the Merger immediately prior to following the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time). Merger I. The Shareholders' Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' Representative in accordance with such advice, the Shareholders' Representative shall not be liable to the Shareholders or the Escrow Agent or any other person. In no event shall the Shareholders' Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such the Shareholders' Representative's costs and expenses, to the extent required by this Article X.Section 2.2(c).

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Shareholders' Representative shall incur no liability to the Shareholders or the Escrow Agent or any other person with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Shareholders' Representative to be genuinely and duly authorized by at least a Majority in Interest of the Shareholders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders for its own gross negligence or willful misconduct. The Shareholders' ’ Representative shall be indemnified by the Shareholders (and Warrantholders) for Sellers for, and shall be held harmless against against, any loss, liability or expense incurred without by the Shareholders’ Representative or any of his Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders’ Representative’s conduct as Shareholders’ Representative, other than such losses, liabilities or expenses resulting from the Shareholders’ Representative’s gross negligence or willful misconduct on the part of the Shareholders' Representative arising out of or in connection with its his performance under this Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement and the termination of the Escrow Agreement. For all purposes hereunder, a "Majority in Interest" The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid from the principal portion of the Shareholders shall be determined on the basis of each Shareholder's ownership of MCE Common Stock immediately prior Escrow Fund, pursuant to the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time)Escrow Agreement. The Shareholders' ’ Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' ’ Representative in accordance with such advice, the Shareholders' ’ Representative shall not be liable to the Shareholders Sellers or the Escrow Agent or any other person. In determining the occurrence of any fact, event or contingency, the Shareholders’ Representative may request from any of the Sellers or any other Person such reasonable additional evidence as the Shareholders’ Representative in its sole discretion may deem necessary, and may at any time inquire of and consult with others, including any of the Sellers and shall not be liable to any Sellers for any damages resulting from any delay in acting hereunder pending receipt and examination of additional evidence requested. In no event shall the Shareholders' ’ Representative be liable to any Seller hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such Shareholders' Representative's costs and expenses, to the extent required by this Article X..

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Each Shareholder, pursuant to the Shareholder Representation Letter, shall severally indemnify and hold any Person serving as the Shareholders' ’ Representative harmless from and against any Damages (except as result from such Person’s bad faith, gross negligence or willful misconduct) that such Person may suffer or incur in connection with any action taken by such Person as the Shareholders’ Representative. Each Shareholder shall bear its pro-rata portion of such Damages. No Person serving as Shareholders’ Representative shall incur no liability be liable to the Shareholders or the Escrow Agent or any other person Shareholder with respect to any 50 action or omission taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed omitted to be taken by the Shareholders' ’ Representative pursuant to be genuinely and duly authorized by at least a Majority in Interest of the Shareholders (or the successors or assigns thereto)this ARTICLE X, nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders for its own such Person’s gross negligence or willful misconduct. The No Shareholders' ’ Representative shall be indemnified by the Shareholders (and Warrantholders) responsible in any manner whatsoever for and shall be held harmless against any lossfailure or inability of Parent or Sub, liability or expense incurred without gross negligence or willful misconduct on the part of anyone else, to honor any of the Shareholders' Representative arising out of or in connection with its performance under this Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination provisions of this Agreement. For all purposes hereunder, a "Majority in Interest" of the Shareholders The Shareholders’ Representative shall be determined fully protected by Shareholders in acting on and relying upon any written notice, direction, request, waiver, notice, consent, receipt or other paper or document which they in good faith believe to be genuine and to have been signed or presented by the basis of each Shareholder's ownership of MCE Common Stock immediately prior to the Effective Time (assuming the exercise proper party or conversion of all warrants outstanding immediately prior to the Effective Time)parties. The Shareholders' Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' Representative in accordance with such advice, the Shareholders' ’ Representative shall not be liable to the Shareholders or the Escrow Agent for any error of judgment, or any other personact done or step taken or omitted by any of them in good faith or for any mistake in fact or law, or for anything which any of them may do or refrain from doing in connection herewith, except for their own bad faith, willful misconduct or gross negligence. In The Shareholders’ Representative may seek the advice of legal counsel, engage experts or otherwise incur reasonable expenses in the event of any dispute or question as to the construction of any of the provisions of this Agreement or their duties hereunder, and they shall incur no event liability to Shareholders with respect to any action taken, omitted or suffered by them in good faith in accordance with the opinion of such counsel or experts. The Shareholders shall severally hold the Shareholders' ’ Representative be liable hereunder or harmless from and against any and all such expenses, and, in connection herewith for (i) addition to any indirectand all other remedies available, punitive, special or consequential damages, or (ii) the Shareholders’ Representative shall have the right to set-off against any amounts other than those that are satisfied out of the Reimbursement Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such Shareholders' Representative's costs and expenses, due to the extent required by this Article X.Shareholders.

Indemnification of Shareholders’ Representative. The ------------------------------------------------------ Shareholders' Representative shall incur no liability to the Shareholders or the Escrow Agent or any other person with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Shareholders' Representative to be genuinely and duly authorized by at least a Majority in Interest of the Shareholders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Pledge Escrow Agreement, in any case except for liability to the Shareholders for its own gross negligence or willful misconduct. The Shareholders' ’ Representative shall be indemnified by the Shareholders (and Warrantholders) Common Equity Holders for and shall be held harmless against any loss, liability or expense incurred without by the Shareholders’ Representative or any of its Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, members, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders’ Representative’s conduct as Shareholders’ Representative, other than losses, liabilities or expenses resulting from the Shareholders’ Representative’s gross negligence or willful misconduct on the part of the Shareholders' Representative arising out of or in connection with its performance under this Agreement and the Pledge Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. For To the extent that the Shareholder’s Representative is entitled to direct the defense or settlement of any Proceeding pursuant to the terms and conditions of Section 10.2(h), then the reasonable attorneys’ fees for the defense or settlement of such Proceeding shall be paid from the Escrow Fund, but only at the expiration date of such Escrow Fund and only to the extent that all purposes hereunder, a "Majority in Interest" claims required to be paid out of the Shareholders shall be determined on the basis of each Shareholder's ownership of MCE Common Stock immediately prior Escrow Fund have been paid to Parent and there are no claims pending with respect to the Effective Time (assuming the exercise or conversion of all warrants outstanding immediately prior to the Effective Time)Escrow Fund. The Common Equity Holders agree that the Shareholders' ’ Representative may, in all questions arising under this Agreement and the Pledge Escrow Agreementother Transaction Documents, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholders' ’ Representative in accordance with such adviceadvice of counsel, the Shareholders' ’ Representative shall not be liable to the Shareholders or Common Equity Holders, the Company, the Surviving Company, the Escrow Agent or any other personPerson. In The Common Equity Holders, by approval, of this Agreement pursuant to the Company Shareholder Approval agree that in no event shall the Shareholders' ’ Representative be liable hereunder or in connection herewith under this Agreement and the other Transaction Documents for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Reimbursement Indemnity Escrow Fund. As provided in the Pledge Escrow Agreement, the Escrow Agent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay such Shareholders' Representative's costs and expenses, to the extent required by this Article X..