Agreement to be complied with by the
Shareholder Representative.
(c)
All decisions and actions by the Shareholder Representative 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 Shareholder
Representative shall have no Liability in respect of any action, claim, or
proceeding brought against the Shareholder Representative by any Shareholder if
the Shareholder Representative took or omitted taking any action in good faith
or took or omitted to take such action at the direction of the Shareholders
owning a majority of the outstanding Preferred Stock immediately prior to the
Closing.
(D)
THE DESIGNATION OF THE SHAREHOLDER REPRESENTATIVE AS ATTORNEY-IN-FACT
FOR EACH SHAREHOLDER IS COUPLED WITH AN INTEREST AND IS BINDING UPON SUCH
SHAREHOLDER NOTWITHSTANDING THE DEATH, INCAPACITY OR DISSOLUTION OF ANY SUCH
SHAREHOLDER.
IF ANY SUCH EVENT SHALL OCCUR PRIOR TO THE COMPLETION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE SHAREHOLDER REPRESENTATIVE IS,
NEVERTHELESS, TO THE EXTENT THAT IT IS LEGALLY ABLE TO DO SO, AUTHORIZED AND
DIRECTED TO COMPLETE ALL TRANSACTIONS AND ACT PURSUANT TO THIS AUTHORITY AS IF
SUCH EVENT HAD NOT OCCURRED.
(E)
THE SHAREHOLDER REPRESENTATIVE'S ACCEPTANCE OF ITS DUTIES UNDER THIS
AGREEMENT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS, WHICH THE PARTIES
HERETO AGREE SHALL GOVERN AND CONTROL WITH RESPECT TO ITS RIGHTS, DUTIES,
LIABILITIES AND IMMUNITIES AS THE SHAREHOLDER REPRESENTATIVE (BUT NOT IN ITS
CAPACITY AS A SHAREHOLDER):
-58-
(I)
THE SHAREHOLDER REPRESENTATIVE, IN ITS CAPACITY AS SHAREHOLDER
REPRESENTATIVE, MAKES NO REPRESENTATION AND HAS NO RESPONSIBILITY AS TO THE
VALIDITY OF THIS AGREEMENT OR OF ANY OTHER INSTRUMENT REFERRED TO HEREIN, OR AS
TO THE CORRECTNESS OF ANY STATEMENT CONTAINED HEREIN, AND IT SHALL NOT BE
REQUIRED TO INQUIRE AS TO THE PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT
BY ANY PARTY.
(II)
THE SHAREHOLDER REPRESENTATIVE SHALL BE PROTECTED IN ACTING UPON
WRITTEN NOTICE, REQUEST, WAIVER, CONSENT, RECEIPT OR OTHER PAPER OR DOCUMENT,
NOT ONLY AS TO ITS DUE EXECUTION AND THE VALIDITY AND EFFECTIVENESS OF ITS
PROVISIONS, BUT ALSO AS TO THE TRUTH OF ANY INFORMATION THEREIN CONTAINED, WHICH
IT IN GOOD FAITH BELIEVES TO BE GENUINE AND WHAT IT PURPORTS TO BE.
(III)
THE SHAREHOLDER REPRESENTATIVE, IN ITS CAPACITY AS SHAREHOLDER
REPRESENTATIVE, SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT, OR FOR ANY ACT
DONE OR STEP TAKEN OR OMITTED BY IT IN GOOD FAITH, OR FOR ANY MISTAKE OF FACT OR
LAW, OR FOR ANYTHING WHICH IT MAY DO OR REFRAIN FROM DOING IN CONNECTION
THEREWITH, EXCEPT ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(IV)
THE SHAREHOLDER REPRESENTATIVE, IN ITS CAPACITY AS THE SHAREHOLDER
REPRESENTATIVE, MAY CONSULT WITH COMPETENT AND RESPONSIBLE LEGAL COUNSEL
SELECTED BY IT, AND IT SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY IT
IN GOOD FAITH IN ACCORDANCE WITH THE ADVICE OF SUCH COUNSEL.
(F)
THE SHAREHOLDERS SHALL BEAR PRO RATA (BASED ON THE PER SHARE MERGER
CONSIDERATION OWED TO EACH) FOR ALL EXPENSES (INCLUDING REASONABLE