Common use of No Liability; Indemnification Clause in Contracts

No Liability; Indemnification. The Stockholder Representative shall not have any liability to any of the Company Equityholders or any other Person for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Equityholders shall indemnify the Stockholder Representative severally (but not jointly) to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative incurred in the performance of his, her or its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative is or was a stockholder representative, or by reason of any action or inaction on the part of the Stockholder Representative while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or willful misconduct or with respect to any Proceeding instituted by the Stockholder Representative to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders in accordance with its, his or her Allocable Percentage of the Merger Consideration received hereunder.

No Liability; Indemnification. The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative’s gross negligence or willful misconduct. The Stockholder Representative shall not have any liability to any of the Company Equityholders or any other Person be liable for any act done action or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faithcounsel. The Company Equityholders shall indemnify Unaffiliated Stockholders will, severally (based on such Unaffiliated Stockholder’s respective Indemnification Percentage compared to the aggregate of the Indemnification Percentages of all Unaffiliated Stockholders) and not jointly, in the amount not to exceed the portion of the Merger Consideration actually paid to such Unaffiliated Stockholder, indemnify, defend and hold harmless the Stockholder Representative severally from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (but not jointlyincluding the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Unaffiliated Stockholders the amount of such indemnified Representative Loss to the fullest extent permitted attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by law the Unaffiliated Stockholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) for all costs the funds in the Expense Fund and expenses (ii) any other amounts become distributable to the Unaffiliated Stockholders in connection with the transactions contemplated by this Agreement; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Unaffiliated Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Unaffiliated Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Unaffiliated Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative incurred in or the performance termination of his, her or its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative is or was a stockholder representative, or by reason of any action or inaction on the part of the Stockholder Representative while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or willful misconduct or with respect to any Proceeding instituted by the Stockholder Representative to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders in accordance with its, his or her Allocable Percentage of the Merger Consideration received hereunder.

No Liability; Indemnification. The Stockholder Representative Sellers’ Agent shall not have any liability be liable to any of the Company Equityholders or any other Person Sellers for any act done action taken by the Sellers’ Agent pursuant to this Agreement unless the Sellers’ Agent has acted in bad faith or omitted hereunder as Stockholder Representative while acting in good faith and with gross negligence. The Sellers’ Agent is serving in the exercise capacity as exclusive agent of reasonable judgment, and any act done or omitted pursuant to the advice Sellers hereunder solely for purposes of counsel shall be conclusive evidence of such good faithadministrative convenience. The Company Equityholders Sellers shall jointly and severally indemnify the Stockholder Representative severally (but not jointly) Sellers’ Agent to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative Sellers’ Agent incurred in the performance of his, her or its such Sellers’ Agent’s duties as a stockholder member representative, (ii) if the Stockholder Representative Sellers’ Agent was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative Sellers’ Agent is or was a stockholder member representative, or by reason of any action or inaction on the part of the Stockholder Representative Sellers’ Agent while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceedingproceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative Sellers’ Agent as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. To the extent the Sellers’ Agent is owed any Representative Expenses, Sellers’ Agent shall have the authority to direct Purchaser to pay such Representatives Expenses from any funds owed to the Sellers from the Earn-Out Amount, when payable, with each such Seller responsible for their Pro Rata Share. Notwithstanding the foregoing, in no event shall the Stockholder Representative Sellers’ Agent be indemnified for any Stockholder Representative Expenses that arise out of the Stockholder RepresentativeSellers’ Agent’s gross negligence, negligence or bad faith or willful misconduct or with respect to any Proceeding proceeding instituted by the Stockholder Representative Sellers’ Agent to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative Sellers’ Agent in such Proceeding proceeding was not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders in accordance with its, his or her Allocable Percentage of the Merger Consideration received hereunder.

No Liability; Indemnification. All acts of the Representative hereunder in its capacity as such shall be deemed to be acts on behalf of the Sellers and not of the Representative individually. The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with the Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s fraud, gross negligence or willful misconduct. The Representative shall not have any liability to any of the Company Equityholders or any other Person be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done action or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faithcounsel. The Company Equityholders shall indemnify the Stockholder Representative Sellers will, severally (but and not jointly) to , in accordance with each Seller’s Pro Rata Percentage, indemnify, defend and hold harmless the fullest extent permitted by law (i) for all costs Representative from and expenses of the Stockholder Representative incurred in the performance of his, her or its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative is or was a stockholder representative, or by reason of any action or inaction on the part of the Stockholder Representative while serving in such capacity, against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including attorneys’ the fees and expenses of counsel and experts and their staffs and all other costsexpense of document location, expenses duplication and obligations incurred shipment) (collectively, “Representative Losses”) arising out of or in connection with investigatingthe Representative’s execution and performance of this Agreement and any agreements ancillary hereto, defendingin each case as such Representative Loss is suffered or incurred; provided, being a witness that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, gross negligence or participating in (including on appeal)willful misconduct of the Representative, the Representative will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such fraud, gross negligence or preparing willful misconduct. If not paid directly to defend, be a witness in or participate inthe Representative by the Sellers, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, Losses may be recovered by the Representative from (i) the funds in the Expense Fund and (iiiii) any Taxes imposed on other funds that become payable to the Stockholder Representative as a result of the actual or deemed receipt of any payments Sellers under this Agreement ((i)at such time as such amounts would otherwise be distributable to the Sellers; provided, (ii) and (iii)that while this section allows the Representative to be paid from the aforementioned sources of funds, collectivelythis does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the “Stockholder Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative Expenses”)under this section. The foregoing indemnities will survive the Closing, including all interest, assessments and other charges paid the resignation or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified for any Stockholder Representative Expenses that arise out removal of the Stockholder Representative’s gross negligence, bad faith Representative or willful misconduct or with respect to any Proceeding instituted by the Stockholder Representative to enforce or interpret termination of this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders in accordance with its, his or her Allocable Percentage of the Merger Consideration received hereunder.

No Liability; Indemnification. The Stockholder Certain Stockholders have entered into an engagement agreement (the “Representative Engagement Agreement”) with the Stockholders’ Representative to provide direction to the Representative in connection with its services under this Agreement and the Representative Engagement Agreement (such Stockholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Representative Group”) shall not have any liability be liable to any of the Company Equityholders or any other Person Stockholder for any act done or omitted hereunder under this Agreement as Stockholder the Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Equityholders shall indemnify the Stockholder Representative Each Stockholder, severally (but and not jointly) to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative incurred jointly in the performance of accordance with his, her or its duties as a stockholder representativePro Rata Share, (ii) if shall indemnify the Stockholder Stockholders’ Representative was and hold him harmless against any loss, liability or is expense incurred without gross negligence or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative is or was a stockholder representative, or by reason of any action or inaction bad faith on the part of the Stockholder Stockholders’ Representative while serving and arising out of or in connection with the acceptance or administration of his duties hereunder. To the extent that any distribution of any portion of the Holdback Amount is made to the Stockholders, the Stockholders’ Representative may receive reimbursement from the Stockholders directly out of any such capacitydistributions that are being made to the Stockholders for any and all expenses, charges and liabilities, including attorneys’ fees, reasonably incurred by the Stockholders’ Representative in the performance or discharge of his rights and obligations under this Agreement. The Stockholders’ Representative may engage counsel, which may include counsel to the Company in connection with the Transactions, and the Company waives any conflict related thereto. Each Stockholder, severally and not jointly in accordance with his, her or its Pro Rata Share, shall indemnify, defend and hold harmless the Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including attorneys’ fees fees, disbursements and all costs of counsel and other costs, expenses skilled professionals and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceedingseeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and penalties arising out of or in connection with the acceptance or administration of its duties hereunder or under the Representative Engagement Agreement. Such Representative Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Holdback Amount otherwise distributable to the Stockholders at the time of distribution, and third, directly from the Stockholders. The Stockholders acknowledge that the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement or the Transactions. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the Stockholders’ Representative in performing such Stockholder actions. The Stockholders’ Representative Claimshall be entitled to: (i) rely upon Section 1.1(a) of the Disclosure Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) any Taxes imposed reasonably assume that a signatory has proper authorization to sign on the Stockholder Representative as a result behalf of the actual applicable Stockholder or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or willful misconduct or with respect to any Proceeding instituted by the Stockholder Representative to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders in accordance with its, his or her Allocable Percentage of the Merger Consideration received hereunderparty.

No Liability; Indemnification. The Stockholder Stockholders’ Representative shall not have be liable for any liability actions taken or omitted to any be taken under or in connection with this Agreement or the Ancillary Agreements, except for such actions taken or omitted to be taken resulting from the Stockholders’ Representative’s willful misconduct or fraud. Without limiting the generality of the Company Equityholders foregoing, the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue or any other Person for any act done or omitted hereunder as actions taken pursuant to instructions given by the Stockholder Representative while acting in good faith and in the exercise of reasonable judgmentMajority, and any error in judgment or other act done or omitted omission of the Stockholders’ Representative pursuant to such advice or instruction shall in no event subject the advice Stockholders’ Representative to liability by any Stockholder. Parent hereby acknowledges and agrees that the Stockholders’ Representative may engage the Company’s current counsel to represent the Stockholders’ Representative in matters relating to this Agreement and that such representation would be adverse to the interests of counsel the Surviving Corporation. Parent and the Company hereby waive any right that Parent or the Surviving Corporation might have in the future to object to any such representation. Furthermore, each Stockholder shall be conclusive evidence of such good faith. The Company Equityholders shall indemnify the Stockholder Representative liable for, severally (but and not jointly) to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative incurred ), in the performance of accordance with his, her or its Pro Rata Share, and shall indemnify the Stockholders’ Representative from and against, any loss, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and expenses) paid or incurred by the Stockholders’ Representative in connection with the performance of its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant inStockholders’ Representative, or is threatened to be made as a party to result of or a witness or other participant in, in the defense of any threatened, pending or completed Proceeding (a “Stockholder claim brought against the Stockholders’ Representative Claim”) by reason of (or arising in part out of) any event or occurrence related relating to the fact that acts or omissions of the Stockholder Stockholders’ Representative is or was a stockholder representativehereunder (however, or by reason the foregoing indemnification shall not apply in the event of any action or inaction on proceeding which finally adjudicates the part liability of the Stockholder Stockholders’ Representative while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified hereunder for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or its willful misconduct or fraud). The payment of such liabilities and expenses shall first be made by the Stockholders’ Representative directly from the Stockholders out of distributions to them from the Holdback Amount and thereafter the Stockholders’ Representative shall have the right to demand payment with respect to any Proceeding instituted by the such expenses from each Stockholder Representative to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was severally (and not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders jointly) in accordance with itsthe Stockholders’ Pro Rata Share; provided, his however, that neither Parent nor the Surviving Corporation shall have any liability with respect to such items. The Stockholders acknowledge that the Stockholders’ Representative shall not be required to expend or her Allocable Percentage risk its own funds or otherwise incur any financial liability in the exercise or performance of the Merger Consideration received hereunderany of its powers, rights, duties or privileges or administration of its duties.

No Liability; Indemnification. The Stockholder Stockholders’ Representative shall not have be liable for any liability actions taken or omitted to any be taken under or in connection with this Agreement or the Ancillary Agreement, except for such actions taken or omitted to be taken resulting from the Stockholders’ Representative’s willful misconduct or fraud. Without limiting the generality of the Company Equityholders foregoing, the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or any other Person for any act done or omitted hereunder as Stockholder Representative while acting in good faith and independent experts experienced in the exercise of reasonable judgmentmatter at issue, and any error in judgment or other act done or omitted omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the advice Stockholders’ Representative to liability by any Stockholder. Parent hereby acknowledges and agrees that the Stockholders’ Representative may engage the Company’s current counsel to represent the Stockholders’ Representative in matters relating to this Agreement and the Escrow Agreement and that such representation would be adverse to the interests of counsel the Surviving Corporation. Parent and the Company hereby waive any right that Parent or the Surviving Corporation might have in the future to object to any such representation. Furthermore, each Stockholder shall be conclusive evidence of such good faith. The Company Equityholders shall indemnify the Stockholder Representative liable for, severally (but and not jointly) to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative incurred ), in the performance of accordance with his, her or its Pro Rata Share, and shall indemnify the Stockholders’ Representative from and against, any loss, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and expenses) paid or incurred by the Stockholders’ Representative in connection with the performance of its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant inStockholders’ Representative, or is threatened to be made as a party to result of or a witness or other participant in, in the defense of any threatened, pending or completed Proceeding (a “Stockholder claim brought against the Stockholders’ Representative Claim”) by reason of (or arising in part out of) any event or occurrence related relating to the fact that acts or omissions of the Stockholder Stockholders’ Representative is or was a stockholder representativehereunder (however, or by reason the foregoing indemnification shall not apply in the event of any action or inaction on proceeding which finally adjudicates the part liability of the Stockholder Stockholders’ Representative while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified hereunder for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or its willful misconduct or fraud). The payment of such liabilities and expenses shall first be made by the Stockholders’ Representative directly from the Stockholders out of distributions to them from the Reserve, then from the Escrow Amount and thereafter the Stockholders’ Representative shall have the right to demand payment with respect to any Proceeding instituted by the such expenses from each Stockholder Representative to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Stockholder Representative in such Proceeding was severally (and not made in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders jointly) in accordance with itsthe Stockholders’ Pro Rata Share; provided, his or her Allocable Percentage of however, that neither Parent nor the Merger Consideration received hereunderSurviving Corporation shall have any liability with respect to such items.

No Liability; Indemnification. All decisions and actions by the Shareholders’ Representative, including, without limitation, any agreement between the Shareholders’ Representative and Parent relating to indemnification obligations of the Shareholders under this Section 2.5(e), including the defense or settlement of any claims and the making of payments with respect thereto, shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholder Shareholders’ Representative shall not have any liability to any of the Company Equityholders or any other Person be liable for any act done or omitted hereunder as Stockholder Shareholders’ Representative while acting in good faith and in the exercise of his reasonable judgmentjudgment as to the best interests of the Shareholders, and any act done or omitted pursuant the Shareholders’ Representative shall incur no liability to the advice of counsel shall be conclusive evidence of such good faith. The Company Equityholders shall indemnify the Stockholder Representative severally (but not jointly) to the fullest extent permitted by law (i) for all costs and expenses of the Stockholder Representative incurred in the performance of his, her or its duties as a stockholder representative, (ii) if the Stockholder Representative was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or a witness or other participant in, any threatened, pending or completed Proceeding (a “Stockholder Representative Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that the Stockholder Representative is or was a stockholder representative, or by reason of any action or inaction on the part of the Stockholder Representative while serving in such capacity, against any and all expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Proceeding), judgments, fines and penalties of such Stockholder Representative Claim, and (iii) any Taxes imposed on the Stockholder Representative as a result of the actual or deemed receipt of any payments under this Agreement ((i), (ii) and (iii), collectively, the “Stockholder Representative Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Stockholder Representative Expenses. Notwithstanding the foregoing, in no event shall the Stockholder Representative be indemnified for any Stockholder Representative Expenses that arise out of the Stockholder Representative’s gross negligence, bad faith or willful misconduct or Shareholders with respect to any Proceeding instituted action taken or suffered by the Stockholder Shareholders’ Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to enforce be genuinely and duly authorized, nor for any other action or interpret this Agreement, if a court of competent jurisdiction determines that each inaction with respect to the indemnification or other obligations of the material assertions made by Shareholders under this Section 2.5, including the Stockholder defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholders’ Representative’s own gross negligence or willful misconduct. The Shareholders’ Representative may, in such Proceeding was not made all questions arising under this Agreement or any agreement contemplated hereunder, rely on the advice of counsel, and for anything done, omitted or suffered in good faith or was frivolous. All Stockholder Representative Expenses shall be paid on a pro rata basis by the Company Equityholders Shareholders’ Representative shall not be liable to the Shareholders. The Shareholders shall jointly and severally indemnify the Shareholders’ Representative and hold him harmless for any loss, liability or expense incurred by the Shareholders’ Representative arising out of or relating to the Shareholders’ Representative’s actions hereunder so long as the Shareholders’ Representative acted in accordance with its, his good faith and without gross negligence or her Allocable Percentage of the Merger Consideration received hereunderwillful misconduct.