Common use of Binding Power Clause in Contracts

Binding Power. The Company Indemnitors shall be bound by all actions taken by the Stockholders’ Agent in its capacity thereof pursuant to the authority granted in Sections 10.1(a) and (b). The Stockholders’ Agent shall at all times act in its capacity as Stockholders’ Agent in a manner that the Stockholders’ Agent believes to be in the best interest of the Company Indemnitors. Neither the Stockholders’ Agent 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, bad faith or willful misconduct. The Stockholders’ Agent may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Agent 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. Each Eligible Stockholder shall indemnify, defend and hold harmless and reimburse the Stockholders’ Agent from and against any and all liabilities, losses, Damages, claims, costs or expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Agent Losses”) suffered or incurred by the Stockholders’ Agent arising out of or in connection with the Stockholders’ Agent’s execution and performance of this Agreement or any action taken or omitted to be taken by the Stockholders’ Agent under this Agreement, in each case as such Agent Loss is suffered or incurred; provided, that in the event that any such Agent Loss is finally adjudicated to have been primarily caused by the gross negligence, bad faith or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Indemnitors the amount of such indemnified Agent Losses attributable to such gross negligence, bad faith or willful misconduct. If not paid directly to the Stockholders’ Agent by the Company Indemnitors, any such Agent Losses may be recovered by the Stockholders’ Agent from the shares in the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Company Indemnitors; provided, that while this section allows the Stockholders’ Agent to be paid from the Escrow Amount, this does not relieve the Company Indemnitors from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Agent from seeking any remedies available to it at law or otherwise. Notwithstanding anything to the contrary herein, the Stockholders’ Agent shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Indemnitors unless the Stockholders’ Agent is expressly authorized to do so in a writing signed by such Company Indemnitors.

Binding Power. The Company Indemnitors Eligible Stockholders shall be bound by all actions taken by the Stockholders’ Agent in its capacity thereof pursuant to the authority granted in Sections 10.1(a11.1(a) and (b). The Stockholders’ Agent shall at all times act in its capacity as Stockholders’ Agent in a manner that the Stockholders’ Agent believes to be in the best interest of the Company IndemnitorsEligible Stockholders. Neither the Stockholders’ Agent 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, bad faith or willful misconduct. The Stockholders’ Agent may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Agent 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. Each Eligible Stockholder shall indemnify, defend and hold harmless and reimburse the Stockholders’ Agent from and against any and all liabilities, losses, Damages, claims, costs or expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Agent Losses”) suffered or incurred by the Stockholders’ Agent arising out of or in connection with the Stockholders’ Agent’s execution and performance of this Agreement or any action taken or omitted to be taken by the Stockholders’ Agent under this Agreement, in each case as such Agent Loss is suffered or incurred; provided, that in the event that any such Agent Loss is finally adjudicated to have been primarily caused by the gross negligence, bad faith or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Indemnitors Eligible Stockholders the amount of such indemnified Agent Losses attributable to such gross negligence, bad faith or willful misconduct. If not paid directly to the Stockholders’ Agent by the Company IndemnitorsEligible Stockholders, any such Agent Losses may be recovered by the Stockholders’ Agent from the shares in the Escrow Parent Holdback Amount at such time as remaining amounts would otherwise be distributable to the Company IndemnitorsEligible Stockholders; provided, that while this section allows the Stockholders’ Agent to be paid from the Escrow Parent Holdback Amount, this does not relieve the Company Indemnitors Eligible Stockholders from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Agent from seeking any remedies available to it at law or otherwise. Notwithstanding anything to the contrary herein, the Stockholders’ Agent shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Indemnitors Eligible Stockholders unless the Stockholders’ Agent is expressly authorized to do so in a writing signed by such Company IndemnitorsEligible Stockholders.

Binding Power. The Company Indemnitors Eligible Stockholders shall be bound by all actions taken by the Stockholders’ Agent in its capacity thereof pursuant to the authority granted in Sections 10.1(a11.1(a) and (b). The Stockholders’ Agent shall at all times act in its capacity as Stockholders’ Agent in a manner that the Stockholders’ Agent believes to be in the best interest of the Company IndemnitorsEligible Stockholders. Neither the Stockholders’ Agent 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, bad faith or willful misconduct. The Stockholders’ Agent may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Agent 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. Each Eligible Stockholder shall indemnify, defend and hold harmless and reimburse the Stockholders’ Agent from and against any and all liabilities, losses, Damages, claims, costs or expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Agent Losses”) suffered or incurred by the Stockholders’ Agent arising out of or in connection with the Stockholders’ Agent’s execution and performance of this Agreement, the Escrow Agreement and the Stockholders Agreement or any action taken or omitted to be taken by the Stockholders’ Agent under this Agreement, , the Escrow Agreement and the Stockholders Agreement, in each case as such Agent Loss is suffered or incurred; provided, that in the event that any such Agent Loss is finally adjudicated to have been primarily caused by the gross negligence, bad faith or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Indemnitors Eligible Stockholders the amount of such indemnified Agent Losses attributable to such gross negligence, bad faith or willful misconduct. If not paid directly to the Stockholders’ Agent by the Company IndemnitorsEligible Stockholders, any such Agent Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Escrow Expense Fund and (ii) the shares in the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Company IndemnitorsEligible Stockholders; provided, that while this section allows the Stockholders’ Agent to be paid from the Escrow Expense Fund and the Escrow Amount, this does not relieve the Company Indemnitors Eligible Stockholders from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Agent from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Eligible Stockholders or otherwise. The Eligible Stockholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholders’ Agent or the termination of this Agreement. Notwithstanding anything to the contrary herein, the Stockholders’ Agent shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Indemnitors Eligible Stockholders unless the Stockholders’ Agent is expressly authorized to do so in a writing signed by such Company IndemnitorsEligible Stockholders.

Binding Power. The Company Indemnitors Eligible Stockholders shall be bound by all actions taken by the Stockholders’ Agent in its capacity thereof thereof, except for any action that conflicts with the limitations set forth in this subsection (d). The Stockholders’ Agent shall promptly, and in any event within five (5) Business Days, provide written notice to the Company Stockholders of any action taken on behalf of them by the Stockholders’ Agent pursuant to the authority granted in Sections 10.1(a) and (b)delegated to the Stockholders’ Agent under this Section 7.1. The Stockholders’ Agent shall at all times act in its capacity as Stockholders’ Agent in a manner that the Stockholders’ Agent believes to be in the best interest of the Company IndemnitorsEligible Stockholders. Neither the Stockholders’ Agent 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, bad faith or willful misconduct. The Stockholders’ Agent may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Agent 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. As to any matters not expressly provided for in this Agreement, the Stockholders’ Agent shall not exercise any discretion or take any action. Each Eligible Stockholder shall indemnify, defend indemnify and hold harmless and reimburse the Stockholders’ Agent from and against such Eligible Stockholder’s ratable share of any and all liabilities, losses, Damages, claims, costs or expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Agent Losses”) suffered or incurred by the Stockholders’ Agent arising out of or in connection with the Stockholders’ Agent’s execution and performance of this Agreement or resulting from any action taken or omitted to be taken by the Stockholders’ Agent under this Agreement, in each case as other than such Agent Loss is suffered liabilities, losses, Damages, claims, costs or incurred; provided, that in the event that any such Agent Loss is finally adjudicated to have been primarily caused by the gross negligence, bad faith expenses arising out of or willful misconduct of resulting from the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Indemnitors the amount of such indemnified Agent Losses attributable to such ’s gross negligence, bad faith or willful misconduct. If not paid directly to the Stockholders’ Agent by the Company Indemnitors, any such Agent Losses may be recovered by the Stockholders’ Agent from the shares in the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Company Indemnitors; provided, that while this section allows the Stockholders’ Agent to be paid from the Escrow Amount, this does not relieve the Company Indemnitors from their obligation to promptly pay such Agent Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Agent from seeking any remedies available to it at law or otherwise. Notwithstanding anything to the contrary herein, the Stockholders’ Agent is not authorized to, and shall not, accept on behalf of any Eligible Stockholders any merger consideration to which such Eligible Stockholders is entitled under this Agreement and the Stockholders’ Agent shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Indemnitors Eligible Stockholders unless the Stockholders’ Agent is expressly authorized to do so in a writing signed by such Company IndemnitorsEligible Stockholders.