Shareholder Agent. (a) By approving and adopting this Agreement or by executing and delivering a letter of transmittal pursuant to Section 3.04, each Shareholder, without further act of any Shareholder, shall have irrevocably authorized and appointed ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Shareholder Agent for each such Shareholder, as the agent and attorney-in-fact for and on behalf of such Shareholder to act on behalf of such Shareholder with respect to this Agreement, the Escrow Agreement and the Exchange Agent Agreement to the fullest extent permitted by applicable Law and to take any and all actions and make any decisions required or permitted to be taken by the Shareholder Agent pursuant to this Agreement, the Escrow Agreement or the Exchange Agent Agreement, including the power to (i) give and receive notices and communications hereunder and under the Escrow Agreement and the Exchange Agent Agreement, (ii) authorize delivery to Parent of amounts from the Escrow Fund in satisfaction of claims by any Parent Indemnitee pursuant to Article X, (iii) object to such deliveries, (iv) 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 any disputes or other matters under Section 3.04 or Section 3.06 or indemnification claims under Article X, (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vi) make all elections or decisions contemplated by this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vii) engage, employ or appoint any Representatives (including attorneys, accountants and consultants) to assist the Shareholder Agent in complying with its duties and obligation, and (viii) take all actions necessary or appropriate in the judgment of the Shareholder Agent as may be required of any of the Shareholders after the Effective Time or for the accomplishment of the foregoing. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders, or by operation of Law, whether by death or other event. (b) The Shareholder Agent may resign at any time; provided, however, in no event shall the Shareholder Agent resign without the holders of a majority in interest of the Escrow Fund having first appointed a new Shareholder Agent who shall assume such duties immediately upon the resignation of the Shareholder Agent. In the event of the death or disability of the Shareholder Agent, a successor Shareholder Agent shall be appointed by the Shareholders who hold a majority in interest of the Escrow Fund. Notice of such appointment shall be given to Parent within ten (10) days of the appointment, such appointment to be effective upon the later of the date indicated in such notice or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. The Shareholder Agent may be changed by the Shareholders from time to time upon not less than thirty (30) days’ prior written notice to Parent; provided that the Shareholder Agent may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Agent may be filled by approval of the holders of a majority in interest of the Escrow Fund, with such new appointment to be effective upon the later of the date indicated in the notice thereof to Parent or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. No bond shall be required of the Shareholder Agent, and the Shareholder Agent shall not receive compensation for his services. Notices or communications to or from the Shareholder Agent shall constitute notice to or from each of the Shareholders. (c) The Shareholder Agent has the unlimited authority and power to act on behalf of each Shareholder with respect to this Agreement and the transactions contemplated hereby. Any decision, act, consent or instruction of the Shareholder Agent shall constitute a decision of all Shareholders, and shall be final, binding and conclusive upon each of the Shareholders, and the Escrow Agent, the Paying Agent and Parent may rely conclusively upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each Shareholder. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Escrow Agent, the Paying Agent, Parent and the Surviving Entity are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Agent. Parent shall be entitled to deal exclusively with the Shareholder Agent on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Shareholder Agent, and on any other action taken or purported to be taken on behalf of any Shareholder by the Shareholder Agent, as being fully binding upon such Person. (d) The Shareholder Agent shall not be liable for any act done or omitted hereunder as Shareholder Agent while acting in good faith. The Shareholders shall severally indemnify, on the basis of each such holder’s Pro Rata Share, the Shareholder Agent and hold the Shareholder Agent harmless against any loss, liability or expense incurred without reckless or intentional misconduct or bad faith on the part of the Shareholder Agent and arising out of or in connection with the acceptance or administration of the Shareholder Agent’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Agent. (e) The Shareholder Agent represents and warrants to Parent, Merger Sub and the Company as follows: (i) the Shareholder Agent has the right and capacity to execute and deliver this Agreement and to perform his obligations hereunder; (ii) neither the execution and delivery of this Agreement nor the consummation or performance of any of the obligations hereunder or under the Escrow Agreement or the Exchange Agent Agreement by the Shareholder Agent will, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation of or breach of any provision of, any Contract to which the Shareholder Agent is bound; and (iii) this Agreement constitutes a legal, valid and binding obligation of the Shareholder Agent enforceable against the Shareholder Agent in accordance with its terms, except as such enforceability may be limited by Equitable Exceptions.
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Shareholder Agent. (a) By approving In the event that the Merger is approved by the requisite shareholders of the Company, effective upon such approval, and adopting this Agreement or by executing and delivering a letter of transmittal pursuant to Section 3.04, each Shareholder, without further act of any Shareholdersuch shareholder, shall have irrevocably authorized the Requisite Consenting Holders may appoint, by written notice to the Company and appointed ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Parent, an individual as the Shareholder Agent for each such Shareholder, as the true and lawful agent and attorney-in-fact for and on behalf of each holder of Company Capital Stock (except such Shareholder to act on behalf of such Shareholder shareholders, if any, as shall have perfected their appraisal rights with respect to Dissenting Shares under California Law) under this Agreement, the Escrow Agreement and the Exchange Agent Agreement Escrow Agreements (the “Shareholder Agent”), subject to such individual’s acceptance thereof and such individual’s execution and delivery to Parent and the fullest extent permitted by applicable Law and to take any and all actions and make any decisions required or permitted to be taken by the Shareholder Agent pursuant Company of a joinder to this AgreementAgreement as the “Shareholder Agent” hereunder, the Escrow (i) to give and receive notices, requests, claims, instructions, demands, objections, or other communications or documents with respect to any claims or other matters under this Agreement or the Exchange Agent Agreement, including the power to (i) give and receive notices and communications hereunder and under the Escrow Agreement and the Exchange Agent AgreementAgreements, (ii) authorize to demand the delivery to Parent of any portion of the Merger Consideration under this Agreement (including any amounts from in the Holdback Escrow Fund in satisfaction of claims by Account, any Parent Indemnitee pursuant to Article XDeferred Cash Consideration, or any Contingent Shares or Earnout Shares issuable under this Agreement), (iii) object to such deliveriesauthorize, for purposes of this Agreement and the Escrow Agreements, the distribution of any amounts from the Holdback Escrow Fund or the Expense Escrow Fund, (iv) agree to negotiate, or enter into settlements and compromises of, and or to demand litigation or arbitration and of, any claims or other disputes involving Parent or Merger Sub arising under this Agreement or the Escrow Agreements (excluding any claims with respect to the Contingent Shares and/or Deferred Cash Consideration that do not fall within clause (v) of this Section 8.3(a)), (v) to comply with any orders and awards of courts and awards of arbitrators with respect to any disputes such claims or other matters under Section 3.04 or Section 3.06 or indemnification claims under Article Xdisputes, (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vi) make all elections or decisions contemplated by this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vii) engage, employ or appoint any Representatives (including attorneys, accountants and consultants) to assist the Shareholder Agent in complying with its duties and obligation, and (viii) take all actions necessary or appropriate in the judgment of the Shareholder Agent as may be required of any of the Shareholders after the Effective Time or for the accomplishment of the foregoing. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders, or by operation of Law, whether by death or other event.
(b) The Shareholder Agent may resign at any time; provided, however, in no event shall the Shareholder Agent resign without the holders of a majority in interest of the Escrow Fund having first appointed a new Shareholder Agent who shall assume such duties immediately upon the resignation of the Shareholder Agent. In the event of the death or disability of the Shareholder Agent, a successor Shareholder Agent shall be appointed by the Shareholders who hold a majority in interest of the Escrow Fund. Notice of such appointment shall be given to Parent within ten (10) days of the appointment, such appointment to be effective upon the later of the date indicated in such notice or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. The Shareholder Agent Such agency may be changed by the Shareholders holders of Company Capital Stock from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided provided, however, that (i) neither the Shareholder Agent may not be removed unless removed, nor a new Person appointed as successor Shareholder Agent in connection with such removal, without the consent of the holders of a Company Capital Stock who would be entitled to at least two-thirds interest of the then-remaining balance in the Expense Escrow Fund agree to upon the distribution of such removal balance in accordance with the provisions of Article II and to (ii) in the identity of the substituted agent. Any event a vacancy in the position of the Shareholder Agent as a result of the resignation or death of the Person who formerly held such position, such vacancy may be filled by approval the consent of the holders of a majority in interest of the Escrow Fund, with such new appointment to be effective upon the later of the date indicated in the notice thereof to Parent or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall Company Capital Stock who would be entitled to rely on the decisions and actions at least a majority of the prior Shareholder Agent as described then-remaining balance in Section 11.01(a) above. No bond shall be required the Expense Escrow Fund upon the distribution of the Shareholder Agent, and the Shareholder Agent shall not receive compensation for his services. Notices or communications to or from the Shareholder Agent shall constitute notice to or from each of the Shareholders.
(c) The Shareholder Agent has the unlimited authority and power to act on behalf of each Shareholder with respect to this Agreement and the transactions contemplated hereby. Any decision, act, consent or instruction of the Shareholder Agent shall constitute a decision of all Shareholders, and shall be final, binding and conclusive upon each of the Shareholders, and the Escrow Agent, the Paying Agent and Parent may rely conclusively upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each Shareholder. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Escrow Agent, the Paying Agent, Parent and the Surviving Entity are hereby relieved from any liability to any Person for any acts done by them balance in accordance with such decision, act, consent or instruction the provisions of the Shareholder Agent. Parent shall be entitled to deal exclusively with the Shareholder Agent on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Shareholder Agent, and on any other action taken or purported to be taken on behalf of any Shareholder by the Shareholder Agent, as being fully binding upon such PersonArticle II.
(d) The Shareholder Agent shall not be liable for any act done or omitted hereunder as Shareholder Agent while acting in good faith. The Shareholders shall severally indemnify, on the basis of each such holder’s Pro Rata Share, the Shareholder Agent and hold the Shareholder Agent harmless against any loss, liability or expense incurred without reckless or intentional misconduct or bad faith on the part of the Shareholder Agent and arising out of or in connection with the acceptance or administration of the Shareholder Agent’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Agent.
(e) The Shareholder Agent represents and warrants to Parent, Merger Sub and the Company as follows: (i) the Shareholder Agent has the right and capacity to execute and deliver this Agreement and to perform his obligations hereunder; (ii) neither the execution and delivery of this Agreement nor the consummation or performance of any of the obligations hereunder or under the Escrow Agreement or the Exchange Agent Agreement by the Shareholder Agent will, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation of or breach of any provision of, any Contract to which the Shareholder Agent is bound; and (iii) this Agreement constitutes a legal, valid and binding obligation of the Shareholder Agent enforceable against the Shareholder Agent in accordance with its terms, except as such enforceability may be limited by Equitable Exceptions.
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Shareholder Agent. (a) By approving Upon and adopting by the Shareholder's approval of this Agreement or by executing and delivering a letter of transmittal pursuant to Section 3.04the Merger in accordance with the DGCL, each Shareholder, and without the further act of any Shareholder, each Shareholder shall be deemed to have irrevocably authorized appointed and appointed accepted Mark Freitas as such Shareholder's ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Shareholder Agent for each such Shareholder, as the agent ve and true and lawful attorney-in-fact for and on behalf of such Shareholder agent to act on behalf of in such Shareholder with respect to this AgreementShareholder's name, the Escrow Agreement place and the Exchange Agent Agreement to the fullest extent permitted by applicable Law and stead to take any and all actions and make any decisions required permitted to be taken or permitted contemplated to be taken by the Shareholder Agent pursuant to under this Agreement, including without limitation the Escrow Agreement payment, discharge or settlement of any action in connection with the Exchange Agent Agreement, including the power to (i) give and receive notices and communications hereunder and under the Escrow Agreement and the Exchange Agent Agreement, (ii) authorize delivery to Parent of amounts from the Escrow Fund indemnification provisions set forth in satisfaction of claims by any Parent Indemnitee pursuant to Article X, (iii) object to such deliveries, (iv) agree to negotiate, enter into settlements and compromises ofSection 9 hereof, and demand arbitration to execute in the name and comply on behalf of such Shareholder any agreement, certificate, instrument or document to be delivered in connection with orders of courts and awards of arbitrators with respect to any disputes the indemnification provisions set forth in Section 9 hereof by the Shareholders or other matters under Section 3.04 or Section 3.06 or indemnification claims under Article X, (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vi) make all elections or decisions contemplated by this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vii) engage, employ or appoint any Representatives (including attorneys, accountants and consultants) to assist the Shareholder Agent in complying with its duties and obligationotherwise, and (viii) to take all any actions necessary or appropriate which in the judgment of the Shareholder's Agent is considered necessary or desirable in connection with the foregoing (in such capacity and not individually, the "Shareholder Agent"). The Shareholder Agent may consult with legal counsel, independent public accountants and other reputable experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Shareholder Agent shall not have any duty to actively ascertain or inquire as may be required to the performance or observance of any of the Shareholders after the Effective Time terms, covenants or for the accomplishment of the foregoing. The provisions conditions of this SectionAgreement. As to any matters not expressly provided for in this Agreement, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and Shareholder Agent shall not be terminated required to exercise any discretion or take any action, unless so authorized and directed in writing by any act Shareholders who contributed a majority of any one or more the Escrow Parent Shares to the escrow created under the Escrow Agreement (the "Majority Company Shareholders, or by operation of Law, whether by death or other event.
(b) The Shareholder Agent may resign at any time; provided, however, in no event shall "). If the Shareholder Agent resign without the holders of a majority in interest of the Escrow Fund having first appointed a new Shareholder Agent who shall assume such duties immediately upon the resignation of the Shareholder Agent. In the event of the death resign, die, or disability of become unable to act or otherwise cease to serve as the Shareholder Agent, a successor Shareholder Agent shall be appointed by the Shareholders who hold a majority in interest Majority Company Shareholders. Any such successor Shareholder Agent shall have the same powers and duties as if appointed as the original Shareholder Agent hereunder. By approval of the Escrow Fund. Notice of such appointment shall be given to Parent within ten (10) days of the appointment, such appointment to be effective upon the later of the date indicated in such notice or the date such notice is received by Parent; provided, that until such notice is received, Parent this Agreement and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Merger, each Shareholder Agent as described in Section 11.01(a) above. The Shareholder Agent may be changed by the Shareholders from time to time upon not less than thirty (30) days’ prior written notice to Parent; provided agrees that the Shareholder Agent may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Agent may be filled by approval of the holders of a majority in interest of the Escrow Fund, with such new appointment to be effective upon the later of the date indicated in the notice thereof to Parent or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. No bond shall be required of the Shareholder Agent, and the Shareholder Agent shall not receive compensation for his services. Notices have any liability resulting from any act or communications to or from the omission of Shareholder Agent shall constitute notice (whether direct or indirect, in contract, tort or otherwise) to any Shareholder or from each to any person claiming through any Shareholder for or in connection with the engagement of the Shareholders.
(c) The Shareholder Agent has the unlimited authority and power to act on behalf of each Shareholder with respect to Agent, this Agreement and the transactions contemplated hereby. Any decisionhereby (including, without limitation, any subsequent act or failure to act), consent except in the event of gross negligence or instruction willful misconduct by Shareholder Agent as determined by a court of competent jurisdiction, and each Shareholder agrees to indemnify the Shareholder Agent shall constitute a decision of all Shareholdersfor, and shall be finalhold him harmless against, binding and conclusive upon each of the Shareholders, and the Escrow Agent, the Paying Agent and Parent may rely conclusively upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each Shareholder. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Escrow Agent, the Paying Agent, Parent and the Surviving Entity are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Agent. Parent shall be entitled to deal exclusively with the Shareholder Agent on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the Shareholder Agent, and on any other action taken or purported to be taken on behalf of any Shareholder by the Shareholder Agent, as being fully binding upon such Person.
(d) The Shareholder Agent shall not be liable for any act done or omitted hereunder as Shareholder Agent while acting in good faith. The Shareholders shall severally indemnify, on the basis of each such holder’s Pro Rata Share, the Shareholder Agent and hold the Shareholder Agent harmless against any loss, liability liability, claim or expense incurred without reckless or intentional misconduct or bad faith on the part of the Shareholder Agent and expense, including reasonable attorney's fees, arising out of or in connection with his duties as Shareholder Agent under this Agreement, including the acceptance costs and expenses of defending himself against any such loss, liability, claim or administration expense in connection herewith, unless such loss, liability, claim or expense shall have been determined by a court of competent jurisdiction to be a result of the Shareholder Agent’s duties hereunder's gross negligence or willful misconduct; provided, including that, in no event shall the reasonable fees and expenses liability of any legal counsel retained by Shareholder under this Section 11.16 exceed such Shareholder's Pro Rata Share of the Shareholder Agent.
(e) The Merger Consideration. It is understood and agreed that Shareholder Agent represents and warrants to Parent, Merger Sub and the Company as follows: (i) the Shareholder Agent has the right and capacity to execute and deliver will act under this Agreement and to perform his obligations hereunder; (ii) neither the execution and delivery of this Agreement nor the consummation or performance of any of the obligations hereunder or under the Escrow Agreement or the Exchange Agent Agreement by the as an independent contractor with duties solely to Shareholders. Shareholder Agent willshall be permitted (but shall not be required) to seek direction on any issue from Shareholders, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation of or breach of and shall be permitted to conclusively rely on any provision of, any Contract to which direction it receives from the Shareholder Agent is bound; and (iii) this Agreement constitutes a legal, valid and binding obligation of the Shareholder Agent enforceable against the Shareholder Agent in accordance with its terms, except as such enforceability may be limited by Equitable ExceptionsMajority Company Shareholders.
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Shareholder Agent. (a) By approving For purposes of this Agreement, immediately and adopting automatically upon Shareholder Approval of this Agreement or by executing Agreement, and delivering a letter without any further action on the part of transmittal pursuant to Section 3.04any Indemnifying Party, each Shareholder, without further act Indemnifying Party shall be deemed to have consented to the appointment of any Shareholder, shall have irrevocably authorized and appointed ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as his, her or its representative and the Shareholder Agent for each such Shareholder, as the agent and attorney-in-fact for and on behalf of each such Shareholder to act on behalf of such Shareholder with respect to this AgreementIndemnifying Party, the Escrow Agreement and the Exchange taking by the Shareholder Agent Agreement to the fullest extent permitted by applicable Law and to take of any and all actions and make the making of any decisions required or permitted to be taken by the Shareholder Agent pursuant to him or her under this Agreement, Agreement and the Escrow Agreement or the Exchange Agent Agreement, including the exercise of the power to (i) give and receive notices and communications hereunder and under the Escrow Agreement and the Exchange Agent Agreement, (ii) authorize delivery to Parent of amounts from the Escrow Fund Fund, or any portion thereof, in satisfaction of claims by any Parent Indemnitee pursuant to Article X, Indemnification Claims; (iii) object to such deliveries, (ivii) agree to to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims; (iii) resolve any disputes or other matters under Section 3.04 or Section 3.06 or indemnification claims under Article X, (v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vi) make all elections or decisions contemplated by this Agreement and any agreement contemplated hereby (including the Escrow Agreement and the Exchange Agent Agreement), (vii) engage, employ or appoint any Representatives (including attorneys, accountants and consultants) to assist the Shareholder Agent in complying with its duties and obligation, Indemnification Claims; and (viiiiv) take all actions necessary or appropriate in the judgment of the Shareholder Agent as may be required of any of the Shareholders after the Effective Time or for the accomplishment of the foregoing. The provisions foregoing and all of the other terms, conditions and limitations of this Section, including Agreement and the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders, or by operation of Law, whether by death or other eventEscrow Agreement.
(b) The Shareholder Agent may resign at any time; providedAccordingly, however, in no event shall the Shareholder Agent resign without the holders of a majority in interest of the Escrow Fund having first appointed a new Shareholder Agent who shall assume such duties immediately upon the resignation of the Shareholder Agent. In the event of the death or disability of the Shareholder Agent, a successor Shareholder Agent shall be appointed by the Shareholders who hold a majority in interest of the Escrow Fund. Notice of such appointment shall be given to Parent within ten (10) days of the appointment, such appointment to be effective upon the later of the date indicated in such notice or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. The Shareholder Agent may be changed by the Shareholders from time to time upon not less than thirty (30) days’ prior written notice to Parent; provided that the Shareholder Agent may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Agent may be filled by approval of the holders of a majority in interest of the Escrow Fund, with such new appointment to be effective upon the later of the date indicated in the notice thereof to Parent or the date such notice is received by Parent; provided, that until such notice is received, Parent and the Surviving Entity shall be entitled to rely on the decisions and actions of the prior Shareholder Agent as described in Section 11.01(a) above. No bond shall be required of the Shareholder Agent, and the Shareholder Agent shall not receive compensation for his services. Notices or communications to or from the Shareholder Agent shall constitute notice to or from each of the Shareholders.
(c) The Shareholder Agent has the have unlimited authority and power to act on behalf of each Shareholder Indemnifying Party with respect to this Agreement and the transactions contemplated herebyEscrow Agreement and the disposition, settlement or other handling of all Indemnification Claims, or other rights or obligations arising from and taken pursuant to this Agreement and the Escrow Agreement. Any The Indemnifying Parties will be bound by all actions taken by the Shareholder Agent in connection with this Agreement and the Escrow Agreement, and Parent and the Escrow Agent shall be entitled to rely on any action or decision of the Shareholder Agent. Without limiting the generality of the foregoing, each decision, act, consent or instruction of the Shareholder Agent shall will constitute a decision of all Shareholders, the Indemnifying Parties with respect to whom a portion of the Escrow Fund is held by the Escrow Agent and shall will be final, binding and conclusive upon each of the Shareholderssuch Indemnifying Parties, and Parent and the Escrow Agent, the Paying Agent and Parent may rely conclusively upon any such decision, act, consent or instruction of the Shareholder Agent as being the decision, act, consent or instruction of each Shareholderand every such Indemnifying Party. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Escrow Agent, the Paying Agent, Each of Parent and the Surviving Entity are Escrow Agent is hereby relieved from any liability to any Person person for any acts done by them it in accordance with such decision, act, consent or instruction of the Shareholder Agent.
(c) The Shareholder Agent will incur no liability with respect to any action taken or suffered by him or her in reliance upon any notice, direction, instruction, consent, statement or other document believed by him or her to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his or her own willful misconduct or gross negligence. Parent shall be entitled to deal exclusively with In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Agent may rely on all matters relating the advice of counsel, and the Shareholder Agent will not be liable to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed anyone for anything done, omitted or purported to be executed on behalf of any Shareholder suffered in good faith by the Shareholder Agent, and Agent based on such advice. The Shareholder Agent will not be required to take any other action taken involving any expense unless the payment of such expense is made or purported provided for in a manner satisfactory to be taken on behalf of any Shareholder by the Shareholder Agent, as being fully binding upon such Personhim or her.
(d) The Subject to the terms of the Escrow Agreement, at any time, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, may, and if the Shareholder Agent shall not be liable for any act done resigns, ceases to perform his or omitted hereunder as her duties in connection herewith or dies, holders of a majority in interest of the Escrow Fund, determined at the Effective Time, shall, appoint a new Shareholder Agent while acting by written consent by sending to Parent and the Escrow Agent notice and a copy of the written consent appointing such new Shareholder Agent(s) signed by holders of a majority in good faithinterest of the Escrow Fund. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent, the Escrow Agent and the Surviving Corporation.
(e) The Shareholders Indemnifying Parties on whose behalf the Shareholder Agent Escrow Amount was withheld from the Merger Consideration and included in the Stockholder Agent Escrow Fund pursuant to Section 1.8(d)(y), this Article 7 and the Escrow Agreement shall severally indemnifyseverally, on the basis of in accordance with each such holderIndemnifying Party’s Pro Rata Shareproportional share of the Merger Consideration, and not jointly indemnify the Shareholder Agent and hold the Shareholder Agent harmless from and against any loss, liability or expense of any nature incurred without reckless or intentional misconduct or bad faith on the part of the by such Shareholder Agent and arising out of or in connection with the acceptance or administration of its duties as Shareholder Agent, including reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by such Shareholder Agent’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the willful misconduct or gross negligence (“Shareholder AgentAgent Expenses”).
(ef) The Shareholder Agent represents and warrants Escrow Fund shall be available as a fund to Parent, Merger Sub and the Company as follows: (i) satisfy the Shareholder Agent has Expenses in accordance with the right escrow agreement relating thereto between the Shareholder Agent and capacity the escrow agent therefor. In the event the Shareholder Agent Escrow Amount shall be insufficient to execute and deliver this Agreement satisfy the expenses of the Shareholder Agent and to perform his obligations hereunder; (ii) neither the execution and delivery of this Agreement nor the consummation or performance of extent that any portion of the obligations hereunder or under Escrow Fund is scheduled to be distributed to the Escrow Agreement or Indemnifying Parties, the Exchange Shareholder Agent Agreement may recover out of such amount available for distribution and before any such distribution, the reasonable and documented legal fees and other professional service fee expenses incurred by the Shareholder Agent willin performance of his or her duties hereunder. In order to make any such recovery, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation of or breach of any provision of, any Contract to which the Shareholder Agent is bound; shall deliver a written notice to Parent and (iii) this Agreement constitutes a legal, valid and binding obligation of the Shareholder Agent enforceable against the Shareholder Escrow Agent in accordance with its termsthe applicable provisions of the Escrow Agreement, except as and, if required by law or the Escrow Agent, an accurately completed W-9 or W-8BEN. The Shareholder Agent shall also provide to Parent, with such enforceability may be limited by Equitable Exceptionswritten notice, an invoice showing the fees and expenses for the services performed.
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