AUTHORIZE THE REPRESENTATIVE (I) TO TAKE ALL ACTION NECESSARY IN CONNECTION WITH
THE IMPLEMENTATION OF THE AGREEMENT ON BEHALF OF THE FORMER STOCKHOLDERS OR THE
SETTLEMENT OF ANY DISPUTE, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO MATTERS
PERTAINING TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT AND THE ESCROW
AGREEMENT, (II) TO GIVE AND RECEIVE ALL NOTICES REQUIRED TO BE GIVEN UNDER THE
AGREEMENT AND THE ESCROW AGREEMENT, AND (III) TO TAKE ANY AND ALL ADDITIONAL
ACTION AS IS CONTEMPLATED TO BE TAKEN BY OR ON BEHALF OF THE FORMER STOCKHOLDERS
BY THE TERMS OF THIS AGREEMENT AND THE ESCROW AGREEMENT.
(IV)
IF NO REPRESENTATIVE IS EVER APPOINTED OR IF ANY REPRESENTATIVE
DIES, BECOMES LEGALLY INCAPACITATED OR RESIGNS FROM SUCH POSITION, ANOTHER
PERSON DESIGNATED BY THE REMAINING REPRESENTATIVES, OR IF NONE REMAIN, BY THE
FORMER STOCKHOLDERS HOLDING THE RIGHT TO RECEIVE MORE THAN 50% IN INTEREST OF
THE ESCROW CASH (THE "REQUISITE FORMER STOCKHOLDERS"), WHO SHALL BE IDENTIFIED
TO PARENT AS SOON AS PRACTICABLE, SHALL FILL SUCH VACANCY AND SHALL BE DEEMED TO
BE THE REPRESENTATIVE FOR ALL PURPOSES OF THIS AGREEMENT; PROVIDED, HOWEVER,
THAT NO CHANGE IN THE REPRESENTATIVE SHALL BE EFFECTIVE UNTIL PARENT IS GIVEN
WRITTEN NOTICE OF SUCH CHANGE.
IF NO REPRESENTATIVE IS THEN CURRENTLY SERVING,
THE REPRESENTATIVE SHALL BE DEEMED TO BE THE REQUISITE FORMER STOCKHOLDERS.
7
(V)
ALL DECISIONS AND ACTIONS BY THE REPRESENTATIVE AS PROVIDED IN
THIS SECTION 1.11 OR UNDER THE ESCROW AGREEMENT SHALL BE BINDING UPON ALL OF THE
FORMER STOCKHOLDERS, AND NO FORMER STOCKHOLDER SHALL HAVE THE RIGHT TO OBJECT,
DISSENT, PROTEST OR OTHERWISE CONTEST THE SAME.
(VI)
BY THEIR EXECUTION AND/OR APPROVAL OF THIS AGREEMENT AND THE
MERGER, THE COMPANY AND ITS STOCKHOLDERS AGREE THAT:
(A)
PARENT SHALL BE ABLE TO RELY CONCLUSIVELY ON THE INSTRUCTIONS AND
DECISIONS OF THE REPRESENTATIVE AS TO ANY ACTIONS REQUIRED OR PERMITTED TO BE
TAKEN BY THE REPRESENTATIVE HEREUNDER AND UNDER THE ESCROW AGREEMENT, AND NO
PARTY HEREUNDER SHALL HAVE ANY CAUSE OF ACTION AGAINST PARENT FOR ANY ACTION
TAKEN BY PARENT IN RELIANCE UPON THE INSTRUCTIONS OR DECISIONS OF THE
REPRESENTATIVE;
(B)
ALL ACTIONS, DECISIONS AND INSTRUCTIONS OF THE REPRESENTATIVE
SHALL BE CONCLUSIVE AND BINDING UPON ALL OF THE FORMER STOCKHOLDERS AND NO
FORMER STOCKHOLDER SHALL HAVE ANY CAUSE OF ACTION AGAINST THE REPRESENTATIVE FOR
ANY ACTION TAKEN, DECISION MADE OR INSTRUCTION GIVEN BY THE REPRESENTATIVE UNDER
THIS AGREEMENT, THE ESCROW AGREEMENT, EXCEPT FOR FRAUD OR WILLFUL BREACH OF THIS
AGREEMENT BY THE REPRESENTATIVE; AND
(C)
THE PROVISIONS OF THIS SECTION 1.11 ARE INDEPENDENT AND SEVERABLE,
SHALL CONSTITUTE AN IRREVOCABLE POWER OF ATTORNEY, COUPLED WITH AN INTEREST AND
SURVIVING DEATH, GRANTED BY THE FORMER STOCKHOLDERS TO THE REPRESENTATIVE AND
SHALL BE BINDING UPON THE EXECUTORS, HEIRS, LEGAL REPRESENTATIVES AND SUCCESSORS
OF EACH FORMER STOCKHOLDER.
(D)
ALL FEES AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ALL
ATTORNEY'S FEES AND EXPENSES INCURRED IN CONNECTION WITH DEFENDING OR SETTLING
ANY CLAIM BY PARENT UNDER THIS AGREEMENT, AND ANY AMOUNTS UNDER SUBSECTION (E)
BELOW, INCURRED BY THE REPRESENTATIVE SHALL BE