Common use of Securityholders’ Representative Clause in Contracts

Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in this Agreement (including Sections 1.15 (Exchange/Payment), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 5.6 (Tax Matters), 8 (Indemnification) and 10.1 (Amendment)), the Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement or the completion and execution of the Letters of Transmittal or Joinder Agreement shall be deemed to have designated ▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Securityholders (the “Securityholders’ Representative”). (b) The Securityholders’ Representative may resign at any time. In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Securityholders who hold at least a majority in interest of the Ownership Percentages at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. (c) By their adoption of this Agreement, acceptance of consideration under this Agreement or the delivery of the Letter of Transmittal and/or Surrender Agreement, as applicable, contemplated by Section 1.16 (Exchange/Payment), the Securityholders shall be deemed to have agreed, in addition to the foregoing, that: (i) the Securityholders’ Representative shall be appointed and constitute the exclusive agent and true and lawful attorney-in-fact of each Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement and the agreements ancillary hereto. The Securityholders’ Representative hereby accepts such appointment; (ii) the Securityholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in the name of any or all of the Securityholders or otherwise) any and all documents, including the Escrow Agreement, that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Securityholder individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby and thereby, including the payment of any Adjustment Amount pursuant to Section 1.17(g) (Post-Closing Adjustment) and the payment of any amounts in satisfaction of any claims for indemnification made by Parent pursuant to Section 8 (Indemnification), and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing; provided, however, that the Securityholders’ Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule; (iii) Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given or made by the Securityholders’ Representative as to any of the matters described in this Section 1.22 (Securityholders’ Representative), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions; (iv) all actions, decisions and instructions of the Securityholders’ Representative shall be conclusive and binding upon each of the Securityholders, and no Securityholders shall have any cause of action against the Securityholders’ Representative and the Securityholders’ Representative will not be liable for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement or the Escrow Agreement on the part of the Securityholders’ Representative; (v) the provisions of this Section 1.22 (Securityholders’ Representative) and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (A) are independent and severable, are irrevocable and coupled with an interest, and shall survive the death, incompetence, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto; and (B) shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated by this Agreement; (vi) no Securityholders shall have any cause of action against the Securityholders’ Representative for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Securityholders’ Representative Engagement Agreement are waived; (vii) the Securityholders’ Representative shall be entitled to: (x) rely upon the Closing Payment Schedule, (y) rely upon any signature believed by it to be genuine, and (z) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party; and (viii) the provisions of this Section 1.22 (Securityholders’ Representative) shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Securityholder, and any references in this Agreement to a Securityholder or the Securityholders shall mean and include the successors to the Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (d) At the Closing, Parent shall cause to be deposited, in an account designated by the Securityholders’ Representative, $50,000 (the “Securityholders’ Representative Reserve”). The Securityholders’ Representative Reserve may be applied as the Securityholders’ Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities, charges, losses, fines, damages, claims, forfeitures, actions, judgments, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) that the Securityholders’ Representative incurred in connection with the transactions contemplated by this Agreement and the Securityholders’ Representative Engagement Agreement, including in connection with the matters contemplated by Section 1.17 (Exchange/Payment) and the evaluation or defense of any claim for indemnification under this Agreement (the “Securityholders’ Representative Expenses”). The Securityholders’ Representative will hold these funds in a non-interest bearing account separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or Liability for any loss of principal of the Securityholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative may contribute funds to the Securityholders’ Representative Reserve from any consideration otherwise distributable to the Participating Securityholders. The balance of the Securityholders’ Representative Reserve held pursuant to this Section 1.21(d) (Securityholders’ Representative), if any, shall, at the sole discretion of the Securityholders’ Representative and at such time to be determined in the sole discretion of the Securityholders’ Representative, be distributed as set forth in Section 1.5 (Conversion of Shares) or Section 1.6 (Treatment of Company Options), as applicable, to the Participating Securityholders. Prior to any such distribution of the Securityholders’ Representative Reserve, the Securityholders’ Representative shall deliver to Parent and the Payment Agent an updated Closing Payment Schedule (which need not be certified) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder (which distribution shall be subject to Section 1.16(f) (Exchange/Payment)). (e) Certain Participating Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement and the Securityholders’ Representative Engagement Agreement. As between the Participating Securityholders and the Securityholders’ Representative, neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Securityholders’ Representative Group”) shall be liable for any act done or omitted hereunder or under the Escrow Agreement as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith except for fraud or willful breach of this Agreement or the Escrow Agreement by the Securityholders’ Representative. The Securityholders’ Representative Group shall be indemnified, defended and held harmless and reimbursed by the Participating Securityholders against any Securityholders’ Representative Expenses incurred without bad faith, gross negligence or willful misconduct on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder and in connection with any Securityholders’ Representative Expenses, at the election of the Securityholders’ Representative, at any time first, from the Securityholders’ Representative Reserve, to the extent any funds remain in such fund, and second, directly from the Participating Securityholders according to each Participating Securityholder’s Ownership Percentage; provided, however, that no Participating Securityholder shall be liable to the Securityholders’ Representative for any amount in excess of the portion of the Upfront Merger Consideration actually paid to such Participating Securityholder. The Participating Securityholders acknowledge that the Securityholders’ 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 contemplated hereby. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholders’ Representative and the Closing or any termination of this Agreement.

Securityholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the ClosingEach Effective Time Holder (other than (i) such Company Stockholders, including any actions that the Securityholdersif any, who have perfected appraisal or dissenters’ Representative mayrights under Delaware Law or California Law, and (ii) Acquiror, in its sole discretion, determine to be necessary, desirable or appropriate in connection with any capacity other than as a Company Securityholder under this Agreement) by virtue of the matters set forth in this Agreement (including Sections 1.15 (Exchange/Payment), 1.17 (Post-Closing Adjustment), 1.18 (Milestone Consideration), 5.6 (Tax Matters), 8 (Indemnification) approval and 10.1 (Amendment)), the Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement or the completion and execution of the Letters of Transmittal other appointment authorization documentation, or Joinder Agreement by accepting any consideration payable hereunder, shall be deemed to have designated ▇▇▇▇▇▇ ▇▇▇▇▇ agreed to appoint Fortis Advisors LLC, a Delaware limited liability company, as the representative of the Securityholders (the “Securityholders’ Representative”). (b) The Securityholders’ Representative may resign at any time. In the event the Securityholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Securityholders who hold at least a majority in interest of the Ownership Percentages at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. (c) By their adoption of this Agreement, acceptance of consideration under this Agreement or the delivery of the Letter of Transmittal and/or Surrender Agreement, as applicable, contemplated by Section 1.16 (Exchange/Payment), the Securityholders shall be deemed to have agreed, in addition to the foregoing, that: (i) the Securityholders’ Representative shall be appointed and constitute the exclusive its agent and true and lawful attorney-in-fact of each Securityholder, with full power in his, her or its name for and on his, her or its behalf to act according to the terms of this Agreement and in general to do all things and to perform all acts including executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement and the agreements ancillary hereto. The Securityholders’ Representative hereby accepts such appointment; (ii) the Securityholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Securityholders (in Effective Time Holders to act for the name of any or all of Effective Time Holders with regard to matters pertaining to the Securityholders or otherwise) any and all documentsMerger, including the Escrow Agreement, that the Securityholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Securityholders’ Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Securityholder individuallyhereby, including Sections 1.17, 1.18, 1.19, 5.4(b), 5.5(b), 5.8, 7.3, ARTICLE VIII and ARTICLE IX, give and receive notices and communications, authorize payment to any Indemnified Person in satisfaction of claims by any Indemnified Person (C) take including from the Indemnity Escrow Account), object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person against any Effective Time Holder or refrain from taking by any actions (whether by negotiationEffective Time Holder against any Indemnified Person or any dispute between any Indemnified Person and any such Effective Time Holder, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related in each case relating to this Agreement and or the transactions contemplated hereby and thereby, including the payment of any Adjustment Amount pursuant to Section 1.17(gtake all other actions that are either (i) (Post-Closing Adjustment) and the payment of any amounts in satisfaction of any claims for indemnification made by Parent pursuant to Section 8 (Indemnification), and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement; provided, however, that the Securityholders’ Representative shall have no obligation to act on behalf of the SecurityholdersEffective Time Holders, except as expressly provided herein and in the Securityholders’ Representative Engagement Escrow Agreement, and for purposes of clarity, there are no obligations of the Effective Time Holders that require the action of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit agreement or the Company Disclosure Schedule; Letter. Each Effective Time Holder agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. Such agency may be changed by the Effective Time Holders upon written notice signed by the Effective Time Holders representing at least a majority in interest of all Effective Time Holders (iiibased on their Pro Rata Share of the Merger Consideration) Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoeverthe “Majority Effective Time Holders”) on from time-to-time. Notwithstanding the instructions and decisions given or made by foregoing, the Securityholders’ Representative as may resign at any time by providing written notice of intent to any resign to the Effective Time Holders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the matters described in this Section 1.22 (Securityholders’ Representative), and no party shall have any cause appointment of action against Parent for any action taken a successor by Parent in reliance upon any such instructions or decisions; (iv) all actions, decisions and instructions of the Majority Effective Time Holders. If the Securityholders’ Representative shall be conclusive and binding upon each of removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Majority Effective Time Holders shall appoint a successor to the Securityholders’ Representative, and no Securityholders shall have any cause immediately thereafter notify Acquiror the identity of action against such successor. Any such successor shall succeed the former the Securityholders’ Representative and as the Securityholders’ Representative will not be liable hereunder. If for any action takenreason there is no Securityholders’ Representative at any time, decision made all references herein to the Securityholders’ Representative shall be deemed to refer to the Majority Effective Time Holders. No bond shall be required of the Securityholders’ Representative. A decision, act, consent or instruction given of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Effective Time Holders and shall be final, binding and conclusive upon the Effective Time Holders. (b) Each Effective Time Holder (other than (i) such Company Stockholders, if any, who have perfected appraisal or dissenters’ rights under Delaware Law or California Law, and (ii) Acquiror, in any capacity other than as a Company Securityholder under this Agreement) by virtue of the approval and adoption of this Agreement or other appointment authorization documentation, or by accepting any consideration payable hereunder, (i) agrees that all actions taken by the Securityholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement or the Escrow Agreement on the part of the Securityholders’ Representative; (v) the provisions of this Section 1.22 (Securityholders’ Representative) and the powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (A) are independent and severable, are irrevocable and coupled with an interest, and shall survive the death, incompetence, bankruptcy or liquidation of any Securityholder and shall be binding on upon such Effective Time Holder and such Effective Time Holder’s successors as if expressly confirmed and ratified in writing by such Effective Time Holder, (ii) waives any successor thereto; and (B) shall be enforceable notwithstanding any rights or remedies that any Securityholder may have in connection with the transactions contemplated by this Agreement; (vi) no Securityholders shall have any cause of action against the Securityholders’ Representative for any action taken, decision made or instruction given by the Securityholders’ Representative under this Agreement, and all defenses which may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement and (iii) grants the Securityholders’ Representative Engagement full power and authority to interpret all the terms and provisions of this Agreement are waived;and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Effective Time Holder and its successors. (viic) By executing this Agreement under the heading “Securityholders’ Representative,” Fortis Advisors LLC, a Delaware limited liability company, hereby (i) accepts its appointment and authorization to act as Securityholders’ Representative as attorney-in-fact and agent on behalf of the Effective Time Holders in accordance with the terms of this Agreement, and (ii) agrees to perform its obligations under, discharge its obligations in connection with, and otherwise comply with, this Section 8.5. (d) The Securityholders’ Representative and its members, managers, officers, agents and employees shall not be liable to any Effective Time Holder for any act done or omitted hereunder as the Securityholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide advice of counsel, accountants and other professionals and experts retained by the Securityholders’ Representative shall be entitled to: (x) rely upon conclusive evidence of good faith). To the Closing Payment Schedule, (y) rely upon any signature believed fullest extent permitted by it to be genuine, and (z) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Securityholder or other party; and (viii) the provisions of this Section 1.22 (Securityholders’ Representative) shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Securityholder, and any references in this Agreement to a Securityholder or the Securityholders shall mean and include the successors to the Securityholders’ rights hereunder, whether pursuant to testamentary dispositionLegal Requirements, the laws of descent and distribution or otherwise. (d) At the Closing, Parent Effective Time Holders shall cause to be deposited, in an account designated by the Securityholders’ Representative, $50,000 (the “Securityholders’ Representative Reserve”). The Securityholders’ Representative Reserve may be applied as the Securityholders’ Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities, charges, losses, fines, damages, claims, forfeitures, actions, judgments, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) that the Securityholders’ Representative incurred in connection with the transactions contemplated by this Agreement and the Securityholders’ Representative Engagement Agreement, including in connection with the matters contemplated by Section 1.17 (Exchange/Payment) and the evaluation or defense of any claim for indemnification under this Agreement (the “Securityholders’ Representative Expenses”). The Securityholders’ Representative will hold these funds in a non-interest bearing account separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or Liability for any loss of principal of the Securityholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Securityholders’ Representative may contribute funds to the Securityholders’ Representative Reserve from any consideration otherwise distributable to the Participating Securityholders. The balance of the Securityholders’ Representative Reserve held pursuant to this Section 1.21(d) (Securityholders’ Representative), if any, shall, at the sole discretion of severally indemnify the Securityholders’ Representative and at such time to be determined in the sole discretion of the Securityholders’ Representative, be distributed as set forth in Section 1.5 (Conversion of Shares) or Section 1.6 (Treatment of Company Options), as applicable, to the Participating Securityholders. Prior to any such distribution of the Securityholders’ Representative Reserve, the Securityholders’ Representative shall deliver to Parent and the Payment Agent an updated Closing Payment Schedule (which need not be certified) setting forth the portion of the Securityholders’ Representative Reserve payable to each Participating Securityholder (which distribution shall be subject to Section 1.16(f) (Exchange/Payment)). (e) Certain Participating Securityholders have entered into an engagement agreement (the “Securityholders’ Representative Engagement Agreement”) with the Securityholders’ Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement and the Securityholders’ Representative Engagement Agreement. As between the Participating Securityholders and the Securityholders’ Representative, neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Securityholders’ Representative Group”) shall be liable for any act done or omitted hereunder or under the Escrow Agreement as Securityholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith except for fraud or willful breach of this Agreement or the Escrow Agreement by the Securityholders’ Representative. The Securityholders’ Representative Group shall be indemnified, defended and held hold them harmless and reimbursed by the Participating Securityholders against any Securityholders’ Representative Expenses loss, liability or expense incurred without bad faithgross negligence, gross negligence or willful misconduct or bad faith on the part of the Securityholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder hereunder, including any out-of-pocket costs and in connection with any expenses and legal fees and other legal costs reasonably incurred by the Securityholders’ Representative Expensesas well as any fee incurred pursuant to the Securityholders’ Representative engagement letter. Except as set forth in Section 8.6(b), any such loss, liability, expense or fee shall be recovered by the Securityholders’ Representative first from the Reserve, second from any distribution of the Combined Escrow Amount otherwise distributable to the Effective Time Holders pursuant to the terms hereof and the Escrow Agreement at the election time of distribution in accordance with written instructions delivered by the Securityholders’ Representative to the Escrow Agent, and third, directly from the Effective Time Holders according to their respective Pro Rata Share. The Securityholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Securityholders’ Representative shall establish a reserve to be held by the Escrow Agent in an amount not to exceed Five Hundred Thousand Dollars ($500,000) (the “Reserve”) from the Merger Consideration with respect to the Effective Time Holders based upon their Pro Rata Share to fund potential expenses of the Securityholders’ Representative in carrying out its authorized duties. The Securityholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Securityholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder and paid out of the Reserve. The Securityholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Securityholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. As determined in the sole discretion of the Securityholders’ Representative, at any time firston the later to occur of (i) the Escrow Release Date and (ii) the date on which there are no Outstanding Claims (as defined in the Escrow Agreement), from the Securityholders’ Representative Reserve, Escrow Agent shall release all remaining funds held by the Escrow Agent with respect to the extent any funds remain in such fund, Reserve (and second, directly from the Participating Securityholders according to each Participating Securityholder’s Ownership Percentage; provided, however, that no Participating Securityholder shall be liable not distributed or distributable to the Securityholders’ Representative for any amount in excess accordance with this Section 8.5(d)) to the Effective Time Holders (other than holders of Excluded Shares) in accordance with each such Effective Time Holder’s Pro Rata Share (and the portion attributable to former holders of the Upfront Merger Consideration actually Vested Company Options shall be paid to the Company’s payroll processor for further distribution to such Participating Securityholderformer holders of Vested Company Options). The Participating Securityholders acknowledge that No provision of this Agreement or the Escrow Agreement shall require the Securityholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial Liability liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to under this Agreement or the transactions contemplated herebyEscrow Agreement. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are reasonably sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. The immunities and rights to indemnification shall survive . (e) To the resignation or removal of extent the Securityholders’ Representative receives documents, spreadsheets or other forms of information from any party and the Securityholders’ Representative is required to deliver any such document, spreadsheet or other form of information to another party, the Securityholders’ Representative is not responsible for the content of such materials, nor is the Securityholders’ Representative responsible for confirming the accuracy of any information contained in such materials or reconciling the content of any such materials with any other documents, spreadsheets or other information. The Securityholders’ Representative shall not be liable to any Effective Time Holders for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Effective Time Holder to whom payment was due, but not made, shall be to recover from other Effective Time Holders any payment in excess of the amount to which they are determined to have been entitled pursuant to this Agreement; provided, however, that the foregoing recourse limitation shall not apply in any case where such error was due to fraud or willful misconduct by the Securityholders’ Representative. The Securityholders’ Representative shall be entitled to rely upon the Spreadsheet provided to it setting forth any apportionment or distribution of payments required to be made pursuant to this Agreement. (f) All of the immunities and powers granted to the Securityholders’ Representative under this Agreement shall survive the Closing or and any termination of this Agreement and the Escrow Agreement. The grant of authority provided for in this Section 8.5: (i) is coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Effective Time Holder and shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Effective Time Holders of the whole or any fraction of his, her or its interest in the Combined Escrow Amount.