Common use of Indemnification of Shareholders' Representative Clause in Contracts

Indemnification of Shareholders' Representative. The Shareholders’ Representative shall be indemnified by the Common Equity Holders for and shall be held harmless against any loss, liability or expense incurred 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 in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. 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 claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending with respect to the Escrow Fund. The Common Equity Holders agree that the Shareholders’ 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 Shareholders’ Representative in accordance with such advice of counsel, the Shareholders’ Representative shall not be liable to the Common Equity Holders, the Company, the Surviving Company, the Escrow Agent or any other Person. 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 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 Indemnity Escrow Fund.

Indemnification of Shareholders' Representative. The Shareholders’ ' Representative shall incur no liability to the Holders or the Escrow Agent or any other person with respect to any action taken or suffered by 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 a majority in interest of the 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 Escrow Agreement, in any case except for liability to the Holders for its own willful misconduct. The Shareholders' Representative shall be indemnified by the Common Equity Holders out of the Remaining Shares (as defined below) for and shall be held harmless against any loss, liability or expense incurred by the Shareholders’ ' Representative or any of its Affiliates and any of their respective its partners, directors, officers, employees, agents, stockholders, membersHolders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders’ ' Representative’s 's conduct as Shareholders’ ' Representative, other than such losses, liabilities or expenses resulting from the Shareholders’ ' Representative’s gross negligence or 's willful misconduct in connection with its their performance under this Holder Agreement, the Reorganization Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. To Such indemnification (including the extent that the Shareholder’s Representative is entitled to direct the defense or settlement costs and expenses of any Proceeding pursuant to the terms and conditions enforcing this right of Section 10.2(h), then the reasonable attorneys’ fees for the defense or settlement of such Proceeding indemnification) shall be borne pro rata by the Holders and paid from the Escrow Fund, but only at the expiration date of such Escrow Fund and only to the extent that all claims required to be paid solely out of the Escrow Fund have been paid to Parent Deposited Shares, if any, that remain after the full and there are final satisfaction of all claims asserted as of the Initial Termination Date (the "Remaining Shares"). In no claims pending with respect to the Escrow Fund. The Common Equity Holders agree that the Shareholders’ 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 Shareholders’ Representative in accordance with such advice of counsel, the Shareholders’ Representative event shall not 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 of the Holders shall be determined on the basis of each such Holder's ownership of GraphOn Common Equity Holders, Stock received upon conversion of the Company, Holder's shares of NES Common Stock in connection with the Surviving Company, Merger immediately following the Effective Time of Merger I. The Escrow Agent or any other Person. The Common Equity Holdersshall from time to time sell such amount of the Reimbursement Shares as necessary to pay the Shareholders' Representative's costs and expenses, by approval, of this Agreement pursuant to the Company Shareholder Approval agree that in no event shall the Shareholders’ Representative be liable under extent required by 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 Indemnity Escrow FundSection 2.2(c).

Indemnification of Shareholders' Representative. 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 be liable to any Shareholder with respect to any action or omission taken or omitted to be taken by the Shareholders’ Representative pursuant to this ARTICLE X, except for 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 Common Equity Holders for Shareholders in acting on and shall be held harmless against relying upon any losswritten notice, liability direction, request, waiver, notice, consent, receipt or expense incurred by the Shareholders’ Representative other paper 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 in connection with its performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. 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 claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending with respect to the Escrow Fund. The Common Equity Holders agree that the Shareholders’ 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 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 of counsel, the proper party or parties. The Shareholders’ Representative shall not be liable to the Common Equity HoldersShareholders for any error of judgment, the Company, the Surviving Company, the Escrow Agent 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. The Common Equity HoldersShareholders’ Representative may seek the advice of legal counsel, by approval, 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 pursuant or their duties hereunder, and they shall incur no liability to Shareholders with respect to any action taken, omitted or suffered by them in good faith in accordance with the Company Shareholder Approval agree that in no event opinion of such counsel or experts. The Shareholders shall severally hold the Shareholders’ Representative be liable under this Agreement harmless from and against any and all such expenses, and, in addition to any and all other remedies available, the other Transaction Documents for (i) any indirect, punitive, special or consequential damages, or (ii) Shareholders’ Representative shall have the right to set-off against any amounts other than those that are satisfied out of due to the Indemnity Escrow FundShareholders.

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 Common Equity Holders Shareholders (and Warrantholders) for and shall be held harmless against any loss, liability or expense incurred 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 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 and the Escrow Agreement. To For all purposes hereunder, a "Majority in Interest" of the extent that Shareholders shall be determined on the basis of each Shareholder’s Representative is entitled to direct the defense or settlement 's ownership of any Proceeding pursuant MCE Common Stock immediately prior to the terms and conditions Effective Time (assuming the exercise or conversion 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 all warrants outstanding immediately prior to the extent that all claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending with respect to the Escrow FundEffective Time). The Common Equity Holders agree that the Shareholders’ ' Representative may, in all questions arising under this Agreement and the other Transaction DocumentsPledge 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 of counseladvice, the Shareholders’ ' Representative shall not be liable to the Common Equity Holders, the Company, the Surviving Company, Shareholders or the Escrow Agent or any other Personperson. The Common Equity Holders, by approval, of this Agreement pursuant to the Company Shareholder Approval agree that in In no event shall the Shareholders’ ' Representative be liable under this Agreement and the other Transaction Documents 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 Indemnity Reimbursement Fund. As provided in the Pledge Escrow Fund.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 shall severally indemnify and hold the Shareholders’ ' Representative shall be indemnified by the Common Equity Holders for harmless from and shall be held harmless against any loss, liability or expense incurred 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 Damages (except as Shareholders’ Representative, other than losses, liabilities or expenses resulting result from the Shareholders’ Representative’s such Person's gross negligence or willful misconduct 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 performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. 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 pro-rata portion of such Proceeding Damages. No Shareholders' Representative shall be paid from the Escrow Fund, but only at the expiration date of such Escrow Fund and only liable to the extent that all claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending any Shareholder with respect to any action or omission taken or omitted to be taken by the Escrow FundShareholders' Representative pursuant to this Article X, except for 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 Common Equity Holders agree that the Shareholders’ ' Representative mayshall be fully protected by Shareholders in acting on and relying upon any written notice, in all questions arising under this Agreement and the direction, request, waiver, notice, consent, receipt or other Transaction Documents, rely on the advice of counsel and for anything done, omitted paper or suffered document which they in good faith believe to be genuine and to have been signed or presented by the proper party or parties. The Shareholders’ Representative in accordance with such advice of counsel, the Shareholders’ ' Representative shall not be liable to the Common Equity HoldersShareholders for any error of judgment, the Company, the Surviving Company, the Escrow Agent 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. The Common Equity HoldersShareholders' Representative may seek the advice of legal counsel, by approval, 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 pursuant or their duties hereunder, and they shall incur no 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 harmless from and against any and all such expenses, and, in addition to any and all other remedies available, the Shareholders' Representative shall have the right to set-off against any amounts due to the Company Shareholder Approval agree that in no event shall the Shareholders’ Representative be liable 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 Indemnity Escrow Fund.

Indemnification of Shareholders' Representative. The Shareholders’ Representative shall be indemnified by the Common Equity Holders for Sellers for, and shall be held harmless against against, any loss, liability or expense incurred by the Shareholders’ Representative or any of its his 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 such losses, liabilities or expenses resulting from the Shareholders’ Representative’s gross negligence or willful misconduct in connection with its his performance under this Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the termination of the Escrow Agreement. 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 The costs of such Proceeding indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid from the principal portion of the Escrow Fund, but only at the expiration date of such Escrow Fund and only to the extent that all claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending with respect pursuant to the Escrow FundAgreement. The Common Equity Holders agree that the Shareholders’ Representative may, in all questions arising under this Agreement and the other Transaction DocumentsAgreement, 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 of counseladvice, the Shareholders’ Representative shall not be liable to the Common Equity Holders, the Company, the Surviving Company, Sellers or the Escrow Agent or any other Personperson. The Common Equity HoldersIn determining the occurrence of any fact, by approvalevent or contingency, the Shareholders’ Representative may request from any of this Agreement pursuant 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 the Company Shareholder Approval agree that 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 under this Agreement and the other Transaction Documents 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 Indemnity Escrow Fund.

Indemnification of Shareholders' Representative. The Shareholders’ ' Representative shall incur no liability to the Holders or the Escrow Agent or any other person with respect to any action taken or suffered by 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 a majority in interest of the 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 Escrow Agreement, in any case except for liability to the Holders for its own willful misconduct. The Shareholders' Representative shall be indemnified by the Common Equity Holders out of the Reimbursement Fund for and shall be held harmless against any loss, liability or expense incurred by the Shareholders’ ' Representative or any of its Affiliates and any of their respective its partners, directors, officers, employees, agents, stockholders, membersHolders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Shareholders’ ' Representative’s 's conduct as Shareholders’ ' Representative, other than such losses, liabilities or expenses resulting from the Shareholders’ ' Representative’s gross negligence or 's willful misconduct in connection with its their performance under this Holder Agreement, the Reorganization Agreement and the Escrow Agreement. This indemnification shall survive the termination of this Agreement and the Escrow Agreement. 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 The costs of such Proceeding 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 of the Holders shall be determined on the basis of each such Holder's ownership of GraphOn Common Stock received upon conversion of the Holder's shares of NES Common Stock in connection with the Merger immediately following the Effective Time of Merger I. The Escrow FundAgent shall from time to time sell such amount of the Reimbursement Shares as necessary to pay the Shareholders' Representative's costs and expenses, but only at the expiration date of such Escrow Fund and only to the extent that all claims required to be paid out of the Escrow Fund have been paid to Parent and there are no claims pending with respect to the Escrow Fund. The Common Equity Holders agree that the Shareholders’ Representative may, in all questions arising under by 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 Shareholders’ Representative in accordance with such advice of counsel, the Shareholders’ Representative shall not be liable to the Common Equity Holders, the Company, the Surviving Company, the Escrow Agent or any other Person. 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 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 Indemnity Escrow FundSection 2.2(c).