Common use of Member Representative Clause in Contracts

Member Representative. (a) Members hereby agree that the Member Representative is hereby appointed as agent and attorney-in-fact for each Member, for and on behalf of the Members, to give and receive notices and communications, to authorize delivery to Parent of funds from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Member Representative for the accomplishment of the foregoing. Such agency may be changed by the Members from time to time upon not less than thirty (30) days prior written notice to Parent and the Escrow Agent; provided, however, that the Member Representative may not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Member Representative, and the Member Representative shall not receive compensation for his or her services. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Members. (b) The Member Representative shall at all times act in his capacity as Member Representative in a manner that the Member Representative believes to be in the best interest of the Members. The Member Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable to the Members for any action taken or omitted to be taken in good faith by him in accordance with the advice of such counsel, accountants or experts. The Member Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement.

Member Representative. (a) Members hereby agree In the event that the Member Representative Merger is hereby approved by the Members of DBits, effective upon such vote, and without further act of any stockholder, Rich▇▇▇ ▇▇▇▇▇▇ ▇▇▇ll be appointed as agent and attorney-in-fact (the "MEMBER REPRESENTATIVE") for each Member, for and on behalf of the Members, to give and receive notices and communications, to make the Cash Election, to authorize delivery to Parent First Virtual of funds cash and shares of First Virtual Common Stock from the Escrow Fund in satisfaction of claims by ParentFirst Virtual, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Member Representative for the accomplishment of the foregoing. Such agency Member Representative may be changed by the Members members of DBits from time to time upon not less than thirty (30) days prior written notice to Parent and the Escrow AgentFirst Virtual; provided, however, that the a Member Representative may not be removed unless holders of a majority in two-thirds interest in of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in of the Escrow Fund. No bond shall be required of the Member Representative, and the Member Representative shall not receive compensation for his or her services. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Members. (b) The Member Representative shall at all times not be liable for any act in his capacity done or omitted hereunder as Member Representative while acting in a manner that good faith and in the exercise of reasonable judgment. The Members on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Member Representative believes and hold the Member Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Member Representative and arising out of or in connection with the acceptance or administration of the Member Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Member Representative. (c) A decision, act, consent or instruction of the Member Representative shall constitute a decision of all Members for whom a portion of the Escrow Amount otherwise issuable to be them are deposited in the best interest Escrow Fund and shall be final, binding and conclusive upon each of such -50- 59 Members, and the Escrow Agent and First Virtual may rely upon any such decision, act, consent or instruction of the MembersMember Representative as being the decision, act, consent or instruction of each and every such Member. The Member Representative may consult with legal counsel, independent public accountants Escrow Agent and other experts selected by it and shall not be liable First Virtual are hereby relieved from any liability to the Members any person for any action taken or omitted to be taken in good faith acts done by him them in accordance with the advice of such counseldecision, accountants act, consent or experts. The Member Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any instruction of the terms, covenants or conditions of this AgreementMember Representative.

Member Representative. (a) Members By execution of this Agreement, each Member (other than the Manager Member or any Affiliate thereof) (the “Unaffiliated Members”) hereby agree that the Member Representative is hereby appointed as agent constitutes and appoints I. ▇▇▇▇▇ ▇▇▇▇▇▇▇ to be each such Member’s true and lawful agent, proxy and attorney-in-fact for fact, with full power and authority in the name, place, and stead of each Membersuch Member to take any and all actions, for and including providing any required Consent, on behalf of the such Members, to give execute any and receive notices and communications, to authorize delivery to Parent of funds from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises all instruments on behalf of, and demand arbitration execute or waive any and comply with orders of courts and awards of arbitrators all rights of, such Members with respect to such claims, and to take all actions necessary or appropriate in their respective rights under this Agreement (the judgment of the “Member Representative”). The Member Representative for the accomplishment of the foregoing. Such agency may be changed by the Members from time to time resign upon not less than thirty (30) days prior written notice to Parent the other Members and the Escrow Agent; provided, however, that the Member Representative may not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in the Escrow FundLLC. No bond shall be required of the Member Representative, and the Member Representative shall not receive no compensation for his or her services. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Members. (b) The Each Member Representative shall at all times not be liable for any act done or committed in his capacity as Member Representative in a manner that the Member Representative believes to be in the best interest of the Membershereunder. The Each Member Representative may consult may, in all questions arising in connection with legal counselthe exercise of his duties, independent public accountants rely on the advice of counsel or other advisors or experts and other experts selected by it and each Member Representative shall not be liable to the Unaffiliated Members for any action taken anything done, omitted or omitted to be taken suffered in good faith by him such Member Representative based on such advice. (a) The Unaffiliated Members hereby severally, but not jointly, agree to indemnify the Member Representative for, and hold them harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the Member Representative and arising out of or in accordance connection with the advice acceptance or administration of their duties hereunder. (b) In the event that I. ▇▇▇▇▇ ▇▇▇▇▇▇▇ becomes Incapacitated, dies, or resigns as a Member Representative, then ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, shall become the successor Member Representative. In the event that any such counselsuccessor Member Representative becomes Incapacitated, accountants dies or expertsresigns as a Member Representative, then a successor Member Representative shall be elected by the affirmative vote of a Majority-In-Interest of the Unaffiliated Members. Each successor Member Representative shall have all the power, authority, rights, and privileges conferred by this Agreement upon the original Member Representative, and the term “Member Representative” as used herein shall be deemed to include successor Member Representatives. A successor Member Representative shall execute a counterpart signature page to this Agreement evidencing the acceptance of his or her responsibilities as a Member Representative. (c) All actions taken by the Member Representative hereunder shall be binding upon the Unaffiliated Members as if expressly confirmed and ratified in writing by each of them. Without limiting the generality of the foregoing, the Member Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and all other ancillary agreements related to or arising in connection with the administration of their duties hereunder. The Member Representatives agrees to execute such documents as the Manager Member may reasonably require. (d) Until notified in writing by a notice signed by a Majority-In-Interest of the Unaffiliated Members, the Manager Member may rely conclusively and act upon the directions, instructions and notices of the Member Representative shall not have any duty to ascertain or to inquire as to for the performance or observance purposes set forth herein and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a Majority-In-Interest of the termsUnaffiliated Members. In addition, covenants or conditions the Unaffiliated Members acknowledge that the Manager Member may rely exclusively upon the directions, instructions and notice of this Agreementthe Member Representative for the purposes set forth herein, notwithstanding the fact that the Manager Member may have received conflicting directions, instructions and notices from other Unaffiliated Members.

Member Representative. (ai) Members hereby agree In the event that the Member Representative Merger is hereby approved, effective upon such vote, and without further act of any Member, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇ shall be appointed as agent and attorney-in-fact (the "Member Representative") for each Member--------------------- Company Members, for and on behalf of the MembersMembers of the Company, to give and receive notices and communications, to authorize delivery to Parent of funds payments from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Member Representative for the accomplishment of the foregoing. Such agency may be changed by the Members members of the Company from time to time upon not less than thirty (30) days prior written notice to Parent and the Escrow AgentParent; provided, however, provided that the Member Representative may not be removed unless holders a majority-in- interest of a majority in interest in the Escrow Fund Company Members agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Member Representative, and the Member Representative shall not receive compensation for his or her servicesservices as such. Notices or communications to or from the Member Representative shall constitute notice to or from each of the MembersCompany Members or their permitted transferees. (bii) The Member Representative shall at all times not be liable for any act in his capacity done or omitted hereunder as Member Representative while acting in a manner that good faith and in the exercise of reasonable judgment. The Company Members shall severally indemnify the Member Representative believes to be in and hold him or her harmless against any loss, liability or expense incurred without negligence or bad faith on the best interest part of the Members. The Member Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable to the Members for any action taken arising out of or omitted to be taken in good faith by him in accordance connection with the advice acceptance or administration of such counselthe members Representative's duties hereunder, accountants or experts. The Member Representative shall not have any duty to ascertain or to inquire as to including the performance or observance reasonable fees and expenses of any of legal counsel retained by the terms, covenants or conditions of this AgreementMember Representative.

Member Representative. (a) Members By execution of this Agreement, each Member (other than the Manager Member or any Affiliate thereof) (the "Unaffiliated Members") hereby agree that the Member Representative is hereby appointed as agent constitutes and attorneyappoints ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to be each such Member's true and lawful agents, proxies and attorneys-in-fact for fact, with full power and authority in the name, place, and stead of each Membersuch Member to take any and all actions, for and including providing any required Consent, on behalf of the such Members, to give execute any and receive notices and communications, to authorize delivery to Parent of funds from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises all instruments on behalf of, and demand arbitration execute or waive any and comply with orders of courts and awards of arbitrators all rights of, such Members with respect to such claimstheir respective rights under this Agreement (each, a "Member Representative" and to take all actions necessary or appropriate in collectively, the judgment of the "Member Representative for the accomplishment of the foregoingRepresentatives"). Such agency The Member Representatives may be changed by the Members from time to time resign upon not less than thirty (30) days prior written notice to Parent the other Members and the Escrow Agent; provided, however, that the Member Representative may not be removed unless holders of a majority in interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in the Escrow FundLLC. No bond shall be required of the Member RepresentativeRepresentatives, and the Member Representative Representatives shall not receive no compensation for his or her their services. Notices or communications to or from the Member Representative shall constitute notice to or from each of the Members. (b) The Each Member Representative shall at all times not be liable for any act done or committed in his capacity as Member Representative in a manner that the Member Representative believes to be in the best interest of the Membershereunder. The Each Member Representative may consult may, in all questions arising in connection with legal counselthe exercise of his duties, independent public accountants rely on the advice of counsel or other advisors or experts and other experts selected by it and each Member Representative shall not be liable to the Unaffiliated Members for any action taken anything done, omitted or omitted to be taken suffered in good faith by him such Member Representative based on such advice. (c) The Unaffiliated Members hereby severally, but not jointly, agree to indemnify the Member Representatives for, and hold them harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the Member Representatives and arising out of or in accordance connection with the advice acceptance or administration of their duties hereunder. (d) In the event that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ becomes Incapacitated, dies, or resigns as a Member Representative, then ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, in his capacity as trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1999 Trust F/B/O the issue of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, shall become his successor representative. In the event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ becomes Incapacitated, or resigns as a Member Representative, then ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall become his successor representative. In the event that any such counselsuccessor Member Representative becomes Incapacitated, accountants dies or experts. The resigns as a Member Representative, then a successor Member Representative shall not have any duty to ascertain or to inquire as to be elected by the performance or observance affirmative vote of any a Majority-In-Interest of the terms, covenants or conditions of this Agreement.Unaffiliated Members. Each successor

Member Representative. (a) Members hereby agree that the The Member Representative (as defined below) is hereby appointed as by and constitutes the authorized agent and attorney-in-fact for of each Memberof the Members, for and on behalf of the Members, to give take any actions and receive notices make and communicationsdeliver any certificate, notice, consent, instruction or instrument required or permitted to authorize delivery be taken, made or delivered by the Members under this Agreement or any other agreement to Parent be delivered pursuant to this Agreement. In connection with the foregoing, the Member Representative may, at the sole cost and expense of funds from the Escrow Fund in satisfaction of claims Members, hire or retain counsel, accountants and other professional advisors as determined by Parentthe Member Representative to be necessary, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary advisable or appropriate in order to carry out its obligations under this Section 2.2 and or the judgment Charter Documents of Cerulean, and may rely in good faith upon the advice received from any of the foregoing Persons. A decision, act, consent or instruction of the Member Representative for the accomplishment shall constitute a decision of all of the foregoing. Such agency Members, and shall be final, binding and conclusive upon each of the Members, and Dynacs, FX and Cerulean may be changed by the Members from time to time rely upon not less than thirty (30) days prior written notice to Parent and the Escrow Agent; providedany decision, howeveract, that consent or instruction of the Member Representative may not be removed unless holders as being the decision, act, consent or instruction of a majority in interest in the Escrow Fund agree to such removal each and to the identity all of the substituted agent. Any vacancy in the position of Member Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Member Representative, and the Member Representative shall not receive compensation for his or her servicesMembers. Notices or communications to or from the Member Representative with respect to this Agreement shall constitute notice to or from each of the Members, individually, and all of the Members, collectively. Dynacs, FX and Cerulean are relieved from any liability to any Person for any acts done by them in accordance with any decision, act, consent or instruction of the Member Representative made in accordance with this Section 2.2. Under no circumstances shall the Member Representative have any liability to the Members for any act or omission to act of the Member Representative while acting in his capacity as the Member Representative, unless the Member asserting liability is able to prove that the Member Representative was guilty of willful misconduct or bad faith. Each Member shall, severally but not jointly and pro rata based on the percentage of Membership Interests owned by the Member on the date of this Agreement as set forth on Exhibit A, indemnify, save and hold harmless the Member Representative from and against any and all Damages incurred in connection with, arising out of resulting from or incident to any act or omission to act of the Member Representative while acting in his capacity as the Member Representative, except to the extent caused by the willful misconduct or bad faith of the Member Representative. (b) The As used in this Agreement, the "Member Representative" shall mean Mich▇▇▇ ▇▇▇▇▇, ▇▇ any Person properly designated in writing delivered to Dynacs and the Members by Mich▇▇▇ ▇▇▇▇▇, ▇▇ his successors and assigns, as a successor Member Representative, but in no event may such successor Member Representative shall at all times act in his capacity as Member Representative in a manner that the Member Representative believes to be in the best interest an officer, director, shareholder, agent or affiliate of the Members. The Member Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable to the Members for any action taken or omitted to be taken in good faith by him in accordance with the advice of such counsel, accountants or experts. The Member Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this AgreementDynacs.