Common use of Shareholder Agent Clause in Contracts

Shareholder Agent. (a) For purposes of this Agreement, immediately and automatically upon Shareholder Approval of this Agreement, and without any further action on the part of any Indemnifying Party, each Indemnifying Party shall be deemed to have consented to the appointment of Xxxx Xxxxxxxxxx as his, her or its representative and the attorney-in-fact for and on behalf of each such Indemnifying Party, and the taking by the Shareholder Agent of any and all actions and the making of any decisions required or permitted to be taken by him or her under this Agreement and the Escrow Agreement, including the exercise of the power to (i) authorize delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of Indemnification Claims; (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims; (iii) resolve any Indemnification Claims; and (iv) take all actions necessary in the judgment of the Shareholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. (b) Accordingly, the Shareholder Agent shall have unlimited authority and power to act on behalf of each Indemnifying Party with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, or other rights or obligations arising from and taken pursuant to this Agreement and the Escrow Agreement. The Indemnifying Parties will be bound by all actions taken by the Shareholder Agent in connection with this Agreement and the Escrow Agreement, and Parent and the Escrow Agent shall be entitled to rely on any action or decision of the Shareholder Agent. Without limiting the generality of the foregoing, each decision, act, consent or instruction of the Shareholder Agent will constitute a decision of all the Indemnifying Parties with respect to whom a portion of the Escrow Fund is held by the Escrow Agent and will be final, binding and conclusive upon each of such Indemnifying Parties, and Parent and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each and every such Indemnifying Party. Each of Parent and the Escrow Agent is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of the Shareholder Agent. (c) The Shareholder Agent will incur no liability with respect to any action taken or suffered by him or her in reliance upon any notice, direction, instruction, consent, statement or other document believed by him or her to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his or her own willful misconduct or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Agent may rely on the advice of counsel, and the Shareholder Agent will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Agent based on such advice. The Shareholder Agent will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him or her. (d) Subject to the terms of the Escrow Agreement, at any time, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, may, and if the Shareholder Agent resigns, ceases to perform his or her duties in connection herewith or dies, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, shall, appoint a new Shareholder Agent by written consent by sending to Parent and the Escrow Agent notice and a copy of the written consent appointing such new Shareholder Agent(s) signed by holders of a majority in interest of the Escrow Fund. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent, the Escrow Agent and the Surviving Corporation. (e) The Indemnifying Parties on whose behalf the Shareholder Agent Escrow Amount was withheld from the Merger Consideration and included in the Stockholder Agent Escrow Fund pursuant to Section 1.8(d)(y), this Article 7 and the Escrow Agreement shall severally, in accordance with each such Indemnifying Party’s proportional share of the Merger Consideration, and not jointly indemnify the Shareholder Agent and hold the Shareholder Agent harmless from and against any loss, liability or expense of any nature incurred by such Shareholder Agent arising out of or in connection with the administration of its duties as Shareholder Agent, including reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by such Shareholder Agent’s willful misconduct or gross negligence (“Shareholder Agent Expenses”). (f) The Shareholder Agent Escrow Fund shall be available as a fund to satisfy the Shareholder Agent Expenses in accordance with the escrow agreement relating thereto between the Shareholder Agent and the escrow agent therefor. In the event the Shareholder Agent Escrow Amount shall be insufficient to satisfy the expenses of the Shareholder Agent and to the extent that any portion of the Escrow Fund is scheduled to be distributed to the Indemnifying Parties, the Shareholder Agent may recover out of such amount available for distribution and before any such distribution, the reasonable and documented legal fees and other professional service fee expenses incurred by the Shareholder Agent in performance of his or her duties hereunder. In order to make any such recovery, the Shareholder Agent shall deliver a written notice to Parent and the Escrow Agent in accordance with the applicable provisions of the Escrow Agreement, and, if required by law or the Escrow Agent, an accurately completed W-9 or W-8BEN. The Shareholder Agent shall also provide to Parent, with such written notice, an invoice showing the fees and expenses for the services performed.

Shareholder Agent. (a) For purposes By approving and adopting this Agreement or by executing and delivering a letter of this Agreementtransmittal pursuant to Section 3.04, immediately and automatically upon Shareholder Approval of this Agreementeach Shareholder, and without any further action on the part act of any Indemnifying PartyShareholder, shall have irrevocably authorized and appointed Xxxxxxxxx X. Xxxxx as the Shareholder Agent for each Indemnifying Party shall be deemed to have consented to such Shareholder, as the appointment of Xxxx Xxxxxxxxxx as his, her or its representative agent and the attorney-in-fact for and on behalf of each such Indemnifying PartyShareholder to act on behalf of such Shareholder with respect to this Agreement, the Escrow Agreement and the taking Exchange Agent Agreement to the fullest extent permitted by the Shareholder Agent of applicable Law and to take any and all actions and the making of make any decisions required or permitted to be taken by him or her under the Shareholder Agent pursuant to this Agreement and Agreement, the Escrow Agreement or the Exchange Agent Agreement, including the exercise of the power to (i) give and receive notices and communications hereunder and under the Escrow Agreement and the Exchange Agent Agreement, (ii) authorize delivery to Parent of amounts from the Escrow Fund, or any portion thereof, Fund in satisfaction of Indemnification Claims; claims by any Parent Indemnitee pursuant to Article X, (iiiii) object to such deliveries, (iv) agree to, to negotiate, enter into settlements and compromises of of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims; any disputes or other matters under Section 3.04 or Section 3.06 or indemnification claims under Article X, (iiiv) resolve execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Indemnification Claims; agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vi) make all elections or decisions contemplated by this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vii) engage, employ or appoint any Representatives (including attorneys, accountants and consultants) to assist the Shareholder Agent in complying with its duties and obligation, and (ivviii) take all actions necessary or appropriate in the judgment of the Shareholder Agent as may be required of any of the Shareholders after the Effective Time or for the accomplishment of the foregoing and all of the other terms, conditions and limitations foregoing. The provisions of this Agreement Section, including the power of attorney granted hereby, are independent and the Escrow Agreementseverable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders, or by operation of Law, whether by death or other event. (b) AccordinglyThe Shareholder Agent may resign at any time; provided, however, in no event shall the Shareholder Agent resign without the holders of a majority in interest of the Escrow Fund having first appointed a new Shareholder Agent who shall assume such duties immediately upon the resignation of the Shareholder Agent. In the event of the death or disability of the Shareholder Agent, a successor Shareholder Agent shall be appointed by the Shareholders who hold a majority in interest of the Escrow Fund. Notice of such appointment shall be given to Parent within ten (10) days of the appointment, such appointment to be effective upon the later of the date indicated in such notice or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. The Shareholder Agent may be changed by the Shareholders from time to time upon not less than thirty (30) days’ prior written notice to Parent; provided that the Shareholder Agent may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Agent may be filled by approval of the holders of a majority in interest of the Escrow Fund, with such new appointment to be effective upon the later of the date indicated in the notice thereof to Parent or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. No bond shall be required of the Shareholder Agent, and the Shareholder Agent shall have not receive compensation for his services. Notices or communications to or from the Shareholder Agent shall constitute notice to or from each of the Shareholders. (c) The Shareholder Agent has the unlimited authority and power to act on behalf of each Indemnifying Party Shareholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, or other rights or obligations arising from and taken pursuant to this Agreement and the Escrow Agreementtransactions contemplated hereby. The Indemnifying Parties will be bound by all actions taken by the Shareholder Agent in connection with this Agreement and the Escrow Agreement, and Parent and the Escrow Agent shall be entitled to rely on any action or decision of the Shareholder Agent. Without limiting the generality of the foregoing, each Any decision, act, consent or instruction of the Shareholder Agent will shall constitute a decision of all the Indemnifying Parties with respect to whom a portion of the Escrow Fund is held by the Escrow Agent Shareholders, and will shall be final, binding and conclusive upon each of such Indemnifying Partiesthe Shareholders, and Parent and the Escrow Agent, the Paying Agent and Parent may rely conclusively upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each and every such Indemnifying PartyShareholder. Each of No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Escrow Agent, the Paying Agent, Parent and the Escrow Agent is Surviving Entity are hereby relieved from any liability to any person Person for any acts done by it them in accordance with such decision, act, consent or instruction of the Shareholder Agent. (c) The . Parent shall be entitled to deal exclusively with the Shareholder Agent will incur no liability with respect on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Shareholder Agent, and on any other action taken or suffered by him or her in reliance upon any notice, direction, instruction, consent, statement or other document believed by him or her purported to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for taken on behalf of any other action or inaction, except his or her own willful misconduct or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Agent may rely on the advice of counsel, and the Shareholder Agent will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Agent based on Agent, as being fully binding upon such advice. The Shareholder Agent will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him or herPerson. (d) Subject to the terms of the Escrow Agreement, at any time, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, may, and if the The Shareholder Agent resigns, ceases to perform his shall not be liable for any act done or her duties in connection herewith or dies, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, shall, appoint a new omitted hereunder as Shareholder Agent by written consent by sending to Parent and while acting in good faith. The Shareholders shall severally indemnify, on the Escrow Agent notice and a copy basis of the written consent appointing such new Shareholder Agent(s) signed by holders of a majority in interest of the Escrow Fund. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent, the Escrow Agent and the Surviving Corporation. (e) The Indemnifying Parties on whose behalf the Shareholder Agent Escrow Amount was withheld from the Merger Consideration and included in the Stockholder Agent Escrow Fund pursuant to Section 1.8(d)(y), this Article 7 and the Escrow Agreement shall severally, in accordance with each such Indemnifying Partyholder’s proportional share of the Merger ConsiderationPro Rata Share, and not jointly indemnify the Shareholder Agent and hold the Shareholder Agent harmless from and against any loss, liability or expense incurred without reckless or intentional misconduct or bad faith on the part of any nature incurred by such the Shareholder Agent and arising out of or in connection with the acceptance or administration of its duties as the Shareholder Agent’s duties hereunder, including the reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in legal counsel retained by the premises, unless such loss, liability or expense shall be caused by such Shareholder Agent’s willful misconduct or gross negligence (“Shareholder Agent Expenses”). (fe) The Shareholder Agent Escrow Fund shall be available represents and warrants to Parent, Merger Sub and the Company as a fund to satisfy follows: (i) the Shareholder Agent Expenses in accordance with has the escrow agreement relating thereto between right and capacity to execute and deliver this Agreement and to perform his obligations hereunder; (ii) neither the execution and delivery of this Agreement nor the consummation or performance of any of the obligations hereunder or under the Escrow Agreement or the Exchange Agent Agreement by the Shareholder Agent and the escrow agent therefor. In the event will, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation of or breach of any provision of, any Contract to which the Shareholder Agent Escrow Amount shall be insufficient to satisfy the expenses is bound; and (iii) this Agreement constitutes a legal, valid and binding obligation of the Shareholder Agent and to the extent that any portion of the Escrow Fund is scheduled to be distributed to the Indemnifying Parties, the Shareholder Agent may recover out of such amount available for distribution and before any such distribution, the reasonable and documented legal fees and other professional service fee expenses incurred by enforceable against the Shareholder Agent in performance of his or her duties hereunder. In order to make any such recovery, the Shareholder Agent shall deliver a written notice to Parent and the Escrow Agent in accordance with the applicable provisions of the Escrow Agreementits terms, and, if required except as such enforceability may be limited by law or the Escrow Agent, an accurately completed W-9 or W-8BEN. The Shareholder Agent shall also provide to Parent, with such written notice, an invoice showing the fees and expenses for the services performedEquitable Exceptions.

Shareholder Agent. (a) For purposes of this Agreement, immediately and automatically upon Shareholder Approval the approval of this AgreementAgreement by the requisite vote or written consent of the Shareholders, and without any further action on the part of any Indemnifying Partysuch Shareholders, each Indemnifying Party Shareholder and Noteholder shall be deemed to have consented to the appointment of Xxxx Xxxxxxxxxx the Shareholder Agent as his, her or its representative and the attorney-in-fact for and on behalf of each such Indemnifying PartyShareholder and Noteholder, and the taking by the Shareholder Agent of any and all actions and the making of any decisions required or permitted to be taken by him or her under this Agreement and the Escrow Agreement, including the exercise of the power to (i) authorize delivery to settle or adjudicate an Indemnification Claim, affirm the retention by Parent of the Escrow FundHoldback Shares, or any portion thereof, in satisfaction of Indemnification Claims; (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims; (iii) resolve any Indemnification Claims; and (iv) take all actions necessary in the judgment of the Shareholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. (b) , including without limitation, retaining legal counsel. Accordingly, the Shareholder Agent shall have unlimited authority and power to act on behalf of each Indemnifying Party Shareholder and Noteholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, or other rights or obligations arising from and taken pursuant to this Agreement and the Escrow Agreementeach such agreement. The Indemnifying Parties reasonable costs and legal expenses for the foregoing actions incurred by the Shareholder Agent shall be paid by the recipients of the Holdback Shares out of the Holdback Shares. The Shareholders and Noteholders will be bound by all actions taken by the Shareholder Agent in connection with this Agreement and the Escrow Agreement, and Parent and the Escrow Agent shall be entitled to rely on any action or decision of the Shareholder Agent. Without limiting the generality of the foregoing, each decision, act, consent or instruction of the Shareholder Agent will constitute a decision of all the Indemnifying Parties with respect to whom a portion of the Escrow Fund is held by the Escrow Agent and will be final, binding and conclusive upon each of such Indemnifying Parties, and Parent and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each and every such Indemnifying Party. Each of Parent and the Escrow Agent is hereby relieved from any liability to any person for any acts done by it them in accordance with such decision, act, consent or instruction of the Shareholder Agent. (c) . The Shareholder Agent will incur no liability with respect to any action taken or suffered by him or her in reliance upon any notice, direction, instruction, consent, statement or other document believed by him or her to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his or her own willful misconduct or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Agent may rely on the advice of counsel, and the Shareholder Agent will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Agent based on such advice. The Shareholder Agent will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him or her. (d) Subject to the terms of the Escrow Agreement, at At any time, holders of a majority in interest of the Escrow FundHoldback Shares, determined at the Effective Time, may, and if the Shareholder Agent resigns, ceases to perform his or her duties in connection herewith or dies, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, shall, may appoint a new Shareholder Agent by written consent by sending to Parent and the Escrow Agent notice and a copy of the written consent appointing such new Shareholder Agent(s) Agent signed by holders of a majority in interest of the Escrow FundHoldback Shares to Parent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent, the Escrow Agent and the Surviving Corporation. (e) The Indemnifying Parties on whose behalf the Shareholder Agent Escrow Amount was withheld from the Merger Consideration and included in the Stockholder Agent Escrow Fund pursuant to Section 1.8(d)(y), this Article 7 and the Escrow Agreement shall severally, in accordance with each such Indemnifying Party’s proportional share of the Merger Consideration, and not jointly indemnify the Shareholder Agent and hold the Shareholder Agent harmless from and against any loss, liability or expense of any nature incurred by such Shareholder Agent arising out of or in connection with the administration of its duties as Shareholder Agent, including reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by such Shareholder Agent’s willful misconduct or gross negligence (“Shareholder Agent Expenses”). (f) The Shareholder Agent Escrow Fund shall be available as a fund to satisfy the Shareholder Agent Expenses in accordance with the escrow agreement relating thereto between the Shareholder Agent and the escrow agent therefor. In the event the Shareholder Agent Escrow Amount shall be insufficient to satisfy the expenses of the Shareholder Agent and to the extent that any portion of the Escrow Fund is scheduled to be distributed to the Indemnifying Parties, the Shareholder Agent may recover out of such amount available for distribution and before any such distribution, the reasonable and documented legal fees and other professional service fee expenses incurred by the Shareholder Agent in performance of his or her duties hereunder. In order to make any such recovery, the Shareholder Agent shall deliver a written notice to Parent and the Escrow Agent in accordance with the applicable provisions of the Escrow Agreement, and, if required by law or the Escrow Agent, an accurately completed W-9 or W-8BEN. The Shareholder Agent shall also provide to Parent, with such written notice, an invoice showing the fees and expenses for the services performed.

Shareholder Agent. (a) For purposes of this Agreement, immediately and automatically upon Shareholder Approval of this Agreement, and without any further action on the part of any Indemnifying Party, each Indemnifying Party shall be deemed to have consented Company Shareholders hereby consent to the appointment of Xxxx Xxxxxxxxxx the Shareholder Agent (and any replacement hereunder), as hisrepresentative of the Company Shareholders, her or its representative and as the agent and attorney-in-fact for and on behalf of each such Indemnifying PartyCompany Shareholder, and and, subject to the express limitations set forth below, the taking by the Shareholder Agent of any and all actions and the making of any decisions required or permitted to be taken by him or her the Shareholder Agent under this Agreement and the Escrow Agreement, including including, without limitation, the exercise of the power to (i) authorize delivery to Parent of the Escrow FundShares and Escrow Cash, or any portion thereof, in satisfaction of Indemnification Claims; , (ii) agree to, negotiate, enter into settlements and compromises of of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims; , (iii) take all actions necessary in connection with the waiver of any condition to the obligations of the Company Shareholders under this Agreement, (iv) waive any right of the Company Shareholders, (v) give and receive all notices required to be given under this Agreement, (vi) resolve any Indemnification Claims; Claims and (ivvii) take all actions necessary in the sole judgment of the Shareholder Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. (b) Accordingly, the . The Shareholder Agent shall have unlimited authority and power to act on behalf of each Indemnifying Party Company Shareholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, or other rights or obligations arising from and taken pursuant to under this Agreement and so long as all Company Shareholders are treated in the Escrow Agreementsame manner. The Indemnifying Parties will Company Shareholders shall be bound by all actions taken by the Shareholder Agent in connection with this Agreement and the Escrow Agreement, and . Parent and the Escrow Agent shall be entitled to rely on any action or decision of the Shareholder Agent. Without limiting the generality , and no Company Shareholder shall have any cause of the foregoing, each decision, act, consent or instruction of action against the Shareholder Agent will constitute a for any action taken, decision of all the Indemnifying Parties with respect to whom a portion of the Escrow Fund is held by the Escrow Agent and will be final, binding and conclusive upon each of such Indemnifying Parties, and Parent and the Escrow Agent may rely upon any such decision, act, consent made or instruction of given by the Shareholder Agent as being the decisionunder this Agreement, actexcept for fraud, consent gross negligence or instruction willful misconduct (including willful breach of each and every such Indemnifying Party. Each of Parent and the Escrow Agent is hereby relieved from any liability to any person for any acts done this Agreement) by it in accordance with such decision, act, consent or instruction of the Shareholder Agent. (c) The Shareholder Agent will incur no liability with respect to any action taken or suffered by him or her in reliance upon any notice, direction, instruction, consent, statement or other document believed by him or her to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his or her own willful misconduct or gross negligence. In all questions arising under performing the functions specified in this Agreement or the Escrow Agreement, the Shareholder Agent may rely on the advice of counsel, and the Shareholder Agent will shall not be liable to anyone for anything donethe Company Shareholders in the absence of fraud, omitted gross negligence or suffered willful misconduct (including willful breach of this Agreement). In the event that Shareholder Agent dies, becomes unable to perform the responsibilities hereunder or resigns as the Shareholder Agent hereunder, a substitute representative shall be appointed by the holders of a majority of the value of the Escrow Shares and Escrow Cash to act as the Shareholder Agent of the Company Shareholders hereunder. The Shareholder Agent may resign as the Shareholder Agent hereunder, effective upon a new representative being appointed in good faith writing by Company Shareholders who beneficially own a majority of the value of the Escrow Shares (valued at the Closing Price) and Escrow Cash. The Shareholder Agent shall not be entitled to receive any compensation from Parent or the Company Shareholders in connection with this Agreement. Any out-of-pocket costs and expenses reasonably incurred by the Shareholder Agent based on such advice. The Shareholder Agent will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him or her. (d) Subject connection with actions taken pursuant to the terms of this Agreement shall be paid by the Escrow Agreement, at any time, holders of a majority Company Shareholders to the Shareholder Agent in interest proportion to their percentage interests in the value of the Escrow Fund, determined Shares (valued at the Effective TimeClosing Price) and Escrow Cash. Parent agrees that, mayin acting as Shareholder Agent hereunder and performing his obligations as a Shareholder Agent hereunder, and if the Shareholder Agent resigns, ceases shall not be deemed to perform his have violated any fiduciary or her similar duties in connection herewith or dies, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, shall, appoint a new Shareholder Agent by written consent by sending to Parent and the Escrow Agent notice and a copy of the written consent appointing such new Shareholder Agent(s(if any) signed by holders of a majority in interest of the Escrow Fund. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent, the Escrow Agent and the Surviving Corporation. (e) The Indemnifying Parties on whose behalf that the Shareholder Agent Escrow Amount was withheld from the Merger Consideration and included in the Stockholder Agent Escrow Fund pursuant may owe to Section 1.8(d)(y), this Article 7 and the Escrow Agreement shall severally, in accordance Parent by virtue of his position(s) with each such Indemnifying Party’s proportional share Parent or its subsidiaries. Each of the Merger Consideration, and not jointly Company Shareholders agree to indemnify the Shareholder Agent and hold the Shareholder Agent harmless from and against any all loss, liability liability, damages, cost or expense of any nature incurred by such Shareholder Agent arising out of or in connection with the administration of its duties as Shareholder Agent, (including but not limited to reasonable legal attorneys' and experts' fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by such Shareholder Agent’s willful misconduct or gross negligence (“Shareholder Agent Expenses”). (fcourt costs) The Shareholder Agent Escrow Fund shall be available as a fund to satisfy the Shareholder Agent Expenses in accordance with the escrow agreement relating thereto between the Shareholder Agent and the escrow agent therefor. In the event the Shareholder Agent Escrow Amount shall be insufficient to satisfy the expenses of the Shareholder Agent and to the extent that any portion of the Escrow Fund is scheduled to be distributed to the Indemnifying Parties, the Shareholder Agent may recover out of such amount available for distribution and before any such distribution, the reasonable and documented legal fees and other professional service fee expenses incurred by the Shareholder Agent in connection with the performance of his the Shareholder Agent's duties and obligations under this Agreement (other than any loss, liability, damages, cost or her duties hereunderexpense incurred through acts or omissions constituting gross negligence or willful misconduct on the Shareholder Agent's part). In order The provisions of this Section are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Company Shareholder to make any such recovery, the Shareholder Agent and shall deliver be binding upon the executors, heirs, legal representatives and successors of each Company Shareholder and any references in this Agreement to a written notice Company Shareholder shall include the successor to Parent the Company Shareholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and the Escrow Agent in accordance with the applicable provisions of the Escrow Agreement, and, if required by law distribution or the Escrow Agent, an accurately completed W-9 or W-8BEN. The Shareholder Agent shall also provide to Parent, with such written notice, an invoice showing the fees and expenses for the services performedotherwise.