Common use of Indemnification by Stockholders Clause in Contracts

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIII, the Stockholders severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Document; (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) the PPP Loans, including (a) any Losses arising out of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the Closing.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIIISection 8.5, the Stockholders severally Stockholders, jointly and not jointly (in accordance with their Pro Rata Shares)severally, shall indemnify agree to indemnify, defend and defend each of Parent hold harmless Parent, its directors, officers, employees, agents and its Affiliates (including the Company) and their respective Representatives (collectivelyAffiliates, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, against any and all Losses incurred or sustained byDamages asserted against, or relating to, imposed upon, the Parent Indemnitees based uponsuffered or incurred by Parent, arising out ofMerger Subsidiary, its officers, directors, employees, agents and Affiliates, in connection with respect enforcing their indemnification rights pursuant to or this Section 8.2 by reason of: of or resulting from (a) any inaccuracy in untrue representation of, or breach of any of the representations or warranties of warranty by, the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf part of the Company pursuant to this Agreement (other than in respect of Section 3.22Agreement, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by undertaking of the Company or Stockholder Representative pursuant to in any part of this Agreement (other than to the extent that any breach or violation ofAgreement, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Document; (c) any Product Liability Claim or other third party claim made by any Stockholder, Optionholder or Convertible Note Holder relating to (i) the Company, whether presently in existence or arising hereafter from or related to any medical procedure performed on or before the Closing Date which utilized the Product, regardless of whether such Person’s rights with respect to the Merger ConsiderationProduct Liability Claim or third party claim arises out of or constitutes a breach of any representation, (ii) the calculations and determinations set forth on the Consideration Spreadsheetwarranty or covenant in this Agreement, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) any Liabilities related to the PPP LoansInterference Requests, including (a) any Losses arising regardless of whether such Liabilities arise out of or relating constitute a breach of any representation, warranty or covenant in this Agreement, (e) any Liabilities related to the PPP LoansMusket Litigation, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising regardless of whether such Liabilities arise out of or relating to the PPP Loans; (e) except for constitute a breach of any amounts related thereto that are included representation, warranty or covenant in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization this Agreement and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses payments made to Dissenting Stockholders pursuant to the DGCL or Indebtedness the CCC in excess of the Merger Consideration per share of Company Common Stock or Company Preferred Stock held by Dissenting Stockholders (each of the above shall be referred to herein as an “Indemnification Liability”). Notwithstanding the foregoing, if the Closing does not occur, the indemnification obligations set forth in this Section 8.2 shall be the obligation of the Company outstanding as of and not the Closing to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the ClosingStockholders.

Indemnification by Stockholders. (a) Subject to the other terms and conditions of limitations set forth in this Article VIIIIX, from and after Closing, Stockholders shall (severally in their pro rata portion based upon the percentage of the Merger Consideration to which they are entitled and not jointly) indemnify and hold harmless Parent, Merger Sub and each of their respective Affiliates (including, following the Effective Time, the Stockholders severally and not jointly (in accordance with their Pro Rata SharesCompany, including, for the avoidance of doubt, the Surviving Corporation), shall indemnify and defend the respective Representatives and Affiliates of each of Parent and its Affiliates the foregoing Persons (including the Company) and their respective Representatives (collectivelyeach, the a “Parent IndemniteesIndemnified Person”) against), from, against and shall hold each in respect of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses Losses, whether or not involving a Third Party Claim, incurred or sustained bysuffered by Parent Indemnified Persons or any of them as a result of, or imposed upon, the Parent Indemnitees based upon, arising out of (i) any breach of, with respect to or inaccuracy in, any representation or warranty made by reason of: (a) any inaccuracy Stockholders or the Company in this Agreement or breach of any of the representations Transaction Agreements (“Warranty Breaches”) and (ii) any breach of covenant or warranties agreement of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed Transaction Agreements by the Company or Stockholder Representative pursuant to the Stockholders. (a) Notwithstanding any other provision of this Agreement (other than to the extent that contrary, for the avoidance of doubt, Stockholders shall have no liability to any breach or violation ofParent Indemnified Person, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Document; (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder relating Losses attributable to (i) to the extent any such Person’s rights with respect to Tax actually reduces the Merger Consideration, any Taxes (excluding reserves for deferred Taxes) reflected as a liability on the Closing Balance Sheet; (ii) any Taxes that are attributable to any transaction outside of the calculations and determinations set forth on the Consideration SpreadsheetMerger as contemplated in this Agreement that is entered into by Parent, Merger Sub, or their Affiliates or at the direction of Parent, Merger Sub, or their Affiliates that occurs on or after the Closing Date; and (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) the PPP Loans, including (a) Taxes with respect to any Losses arising out of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in taxable period beginning after the Closing Liabilities in Date or the calculation portion of any Straddle Period occurring after the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the ClosingDate.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIIIARTICLE IX, the Stockholders Stockholders, severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company or the Stockholders contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VIARTICLE VII), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative the Stockholders pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth thereinARTICLE VII, in which case it is being understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Documentpursuant to ARTICLE VII); (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder Stockholder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) except to the extent that such claim is the result of Parent’s failure to fully perform any covenant, agreement or undertaking under this Agreement, or the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) any amounts paid to the PPP Loansholders of Dissenting Shares, including (a) any Losses arising out interest required to be paid thereon, that are in excess of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out what such holders would have received hereunder had such holders not been holders of or relating to the PPP LoansDissenting Shares; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing (other than the Permitted Indebtedness) to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net LiabilityClosing, or if paid by Parent or either Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability deducted in the calculation determination of Closing Net LiabilityMerger Consideration; (f) any claim or right asserted or held by any person who is a current officer or director of the Company (against the Final Surviving Company, against Parent, against any Affiliate of Parent) of entitlement to indemnification or the reimbursement of expenses in connection with any indemnity claim or any other relief or remedy (under the Charter Documents, under any indemnification agreement or under any applicable Law providing for indemnification of directors or officers) with respect to any act or omission on the part of such person or any event or other circumstance that arose, occurred or existed at or prior to the Effective Time to the extent not covered by the D&O Tail Policy; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal the matters set forth on or before Section 9.02(g) of the ClosingDisclosure Schedules.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article ARTICLE VIII, the Stockholders Stockholders, severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.22Agreement, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary DocumentAgreement; (c) any claim made by any Stockholder, Optionholder Stockholder or Convertible Note Holder Warrantholder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) or the calculations and determinations set forth on the Closing Merger Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials)Schedule; (d) the PPP Loans, including (a) any Losses arising out of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Closing Indebtedness of the Company outstanding as of the Closing Amount to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net LiabilityClosing, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability deducted in the calculation determination of Aggregate Closing Net Liability; orMerger Consideration; (e) the loss of Annual Service Fee with respect to the GE Contract calculated as set forth in Section 8.04(f); (f) any Losses resulting from the Company’s failure to provide timely notice regarding the transactions contemplated by this Agreement under that certain Office Lease between the Company and Crystal Building, LLC dated January 12, 2017, as amended by that certain First Amendment dated March 21, 2017; (g) any claims or actions Losses related to the disclosure set forth in item 2 in Section 3.11(t) of the Disclosure Schedules; (h) any Losses related to the Company’s failure to obtain Proprietary Information and Invention Assignment Agreements from any of the persons listed in Section 3.11(g) the Disclosure Schedules, with such Losses being determined based on the rights the Surviving Corporation would have had if the Company’s form of such agreement had been executed and delivered by such individual(s); and (i) any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver Losses related to Parent a Letter of Transmittal on or before any inaccuracies in the ClosingClosing Merger Consideration Schedule.

Indemnification by Stockholders. Subject (a) Each Stockholder, jointly and severally (subject to the other terms and conditions subsection (b) of this Article VIII, the Stockholders severally and not jointly (in accordance with their Pro Rata SharesSection 7.1), shall agree to defend, indemnify and defend each of hold Buyer, Parent and its Affiliates (including the Company) and their respective Representatives (collectivelysubsidiaries and affiliates and persons serving as officers, the “Parent Indemnitees”) againstdirectors, partners or employees thereof and shall hold each any person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (individually a "Buyer Indemnified Party" and collectively the "Buyer Indemnified Parties") harmless from and against, and shall pay and reimburse each of them for, against any and all Losses incurred Claims (as defined in Section 1.2 hereof), and any diminution in value of the Subject Assets or the Business (it being understood that the consideration paid for the Subject Assets hereunder shall not be presumed to be the value of the Business), whether or not arising out of third-party claims and including all reasonable amounts paid in investigation, defense or settlement of the foregoing, which may be sustained by, or imposed upon, the Parent Indemnitees suffered by any of them based upon, arising out of, with respect to or by reason ofof or otherwise in respect of or in connection with: (ai) any inaccuracy in or breach of any representation or warranty made by Seller or either Stockholder in this Agreement, or in any Schedule or exhibit to this Agreement or any certificate or other document delivered in connection with the consummation of the representations transactions contemplated by this Agreement (collectively, "Buyer Representation and Warranty Claims"); (ii) any breach of any covenant or warranties of the Company contained agreement made by Seller or either Stockholder in this Agreement or in any certificate Schedule or instrument delivered by or on behalf of the Company pursuant exhibit to this Agreement or any certificate or other document delivered in connection with the consummation of the transactions contemplated by this Agreement; (iii) any Claim relating to the business or operations of Seller other than the Business; (iv) any Claim (other than the Contract Liabilities) relating to the operations and assets of the Business which arises in connection with or on the basis of events, acts, omissions, conditions or any other state of facts occurring or existing on or prior to the Closing Date (including, in each case, without limitation, any Claim relating to or associated with the products or services of the Business sold or provided on or prior to the Closing Date, tax matters, pension and benefits matters, any failure to comply with applicable laws and/or permitting or licensing requirements, any matters involving Xxxxxx Xxxxxxxx and environmental and worker health and safety matters (provided that Efessiou and not Angelides agrees to indemnify Buyer and Parent for any Claim related to matters involving Xxxxxx Xxxxxxxx); and (v) any liability of Seller other than the Contract Liabilities. The rights of Buyer Indemnified Parties to recover indemnification in respect of any Claim arising under clause (ii), (iii), (iv), or (v) of this Section 3.227.1(a) shall not be limited by the fact that such Claim may also constitute a Buyer Representation and Warranty Claim, it being understood that the sole remedy for any such inaccuracy in or breach thereof preceding clause shall not be interpreted so as to allow two separate remedies. (b) The rights of Buyer Indemnified Parties to recover indemnification under this Section 7.1 shall be subject to the following limitations: (i) No indemnification shall be payable by Seller or a Stockholder with respect to Buyer Representation and Warranty Claims or Claims arising under Sections 7.1(a)(ii) unless the total of all amounts payable pursuant to Article VI)this Section 7.1 shall exceed $25,000 in the aggregate, whereupon the total amount of such Claims shall be recoverable in accordance with the terms thereof; provided, however, that such $25,000 limitation shall not apply with respect to Claims involving fraud or intentional misrepresentation and provided further that any Ancillary Document as claim brought under Sections 7.1(a)(iii) or 7.1(a)(iv) above shall not be subject to such limitation if they are also Buyer Representation and Warranty Claims; and; (ii) All rights to indemnification with respect to Buyer Representation and Warranty Claims shall expire on the third anniversary of the Closing Date, except that Buyer Representation and Warranty Claims relating to or involving fraud or tax matters shall survive until and shall expire on the date such representation three months after the termination of the applicable statute of limitations relating thereto. Notwithstanding the preceding sentence, if on or warranty was made or as if such representation or warranty was made on and as prior to the third anniversary of the Closing Date (except for representations and warranties that expressly relate a specific state of facts shall have become known which may give rise to a specified dateclaim for indemnification under Section 7.1(a)(i) and a Buyer Indemnified Party shall have given written notice of such facts known by such Buyer Indemnified Party at such time to Seller and Stockholder, then the inaccuracy right to indemnification with respect thereto shall remain in or breach of which will be determined with reference effect without regard to when such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure matter shall be such remedy set forth in Article VI) or any Ancillary Document; (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder relating finally determined and disposed of. All rights to (i) such Person’s rights indemnification under this Section 7.1 with respect to the Merger Considerationclaims arising under Section 7.1(a)(ii), (ii7.1(a)(iii), 7.1(a)(iv) the calculations and determinations set forth 7.1(a)(v) shall, except as they may otherwise be extended, survive until and shall expire on the Consideration Spreadsheetdate three months after the termination of the applicable statute of limitations relating thereto. The limitations herein with respect to Buyer Representation and Warranty Claims and claims arising under Sections 7.1(a)(ii), or 7.1(a)(iii) and 7.1(a)(iv) shall not limit the rights of any Buyer Indemnified Party with respect to any other claims under this Section 7.1; and (iii) Notwithstanding anything contained in this Section 7.1 to the Amended Information Package contrary, Seller and Stockholder shall not be required to indemnify Buyer Indemnified Parties with respect to Buyer Representation and Warranty Claims or Claims arising under Section 7.1(a)(ii) in an aggregate amount in excess of $8,660,000 plus any Contingent Payment actually made (excluding together, the publicly available Parent information included in such materials"Indemnity Cap"); (d) the PPP Loans, including (a) any Losses arising out of or except with respect to claims relating to or involving fraud or tax matters, as to which no such limit shall apply. Until the PPP Loansfirst anniversary of the Closing, the PPP Loan Applications, the PPP Forgiveness Applications, each Stockholder may satisfy his or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out her indemnification obligations to Buyer Indemnified Parties by delivery of or relating shares of Parent Stock to the PPP Loans; (e) except for any amounts related thereto that are included in relevant Buyer Indemnified Party having a value equal to such indemnification obligations, such value per share to be determined by taking the Closing Liabilities in the calculation average of the Closing Net Liability, closing price on the Loan Authorization and Agreement NASDAQ National Market System for an Economic Injury Disaster Loan dated June 10, 2020 the Parent's stock for the thirty (SBA Loan # 134394790530) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at or trading days immediately prior to the Closing and to receipt of such stock by the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the ClosingBuyer Indemnified Party.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIII1VIII, the Stockholders severally shall, jointly and not jointly (in accordance with their Pro Rata Shares)severally, shall indemnify and defend each of Parent Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Buyer Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.223.19, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI1VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein1VI, in which case it is being understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Document;pursuant to 1VI); or (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) the PPP Loans, including (a) any Losses arising out of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by deducted from the Company at or prior to the Closing and to the extent not included as a Closing Liability Purchase Price in the calculation determination of the Post-Closing Net Liability, or if paid by Parent or Merger Sub at or prior Adjustment pursuant to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the ClosingSection 2.11(d).

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIIIIX, and except as set forth below, the Stockholders who receive Closing Merger Consideration, severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the CompanyCompany and its Subsidiaries) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of each of the Company Company, the Stockholders contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company Company, the Stockholders pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VIVII), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative Company, the Stockholders pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth thereinVII, in which case it is being understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in pursuant to Article VI) or any Ancillary DocumentVII); (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder Stockholder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) or the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) any claim made by a “Company Indemnitee” (as such term is defined in the PPP Loans, including (aO&R Contract) any Losses arising out of or under the O&R Contract relating to the PPP Loans, Merger or the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loanstransactions contemplated by this Agreement; (e) except for any amounts related thereto that are included in Tax Claim relating to the Closing Liabilities in the calculation classification under any applicable Law of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 any individual characterized (SBA Loan # 1343947905or mischaracterized) between or treated by the Company and the SBA (the “EIDL Loan”), the application therefore or any of its Subsidiaries as an independent contractor or consultant and any audit or Legal Proceeding arising out of such application and loan;tax and/or other obligations resulting therefrom; or (f) any post-Closing corrections or adjustments to Net Indebtedness and Transaction Expenses to the extent that such corrections or Indebtedness adjustments would have otherwise decreased the Merger Consideration pursuant to any provision hereof. Notwithstanding anything contained herein to the contrary, (i) no Stockholder shall be liable for another Stockholder’s breach of Article IV, and (ii) Stockholders with a Pro Rata Share of less than One Percent (1%) shall not have personal liability (beyond their share of the Indemnification Escrow Fund) for claims relating to breaches of the representations and warranties of the Company outstanding as contained in Article III of the Closing this Agreement and their share of such liability shall be allocated to the extent not paid or satisfied by the Company at or prior to the Closing Xxxxxxx Xxxxxxx and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the ClosingXxxxxx Xxxxxxx.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIII, the Stockholders severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary Document; (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) the PPP Loans, including (a) any Losses arising out of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the Closing.

Indemnification by Stockholders. Subject From and after the Closing, subject to the other terms and conditions of this Article VIIISections 12.4 through 12.6, the Stockholders shall, severally and not jointly (in accordance with their Pro Rata Shares)jointly, shall indemnify and defend each of hold harmless the Parent and its Affiliates (including the Company) and their respective Representatives (collectivelyIndemnified Parties, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, against any and all Losses suffered or incurred by any such party by reason of or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason ofof any of the following: (a) any inaccuracy in or the breach by the Company of any representation or warranty contained herein or in any document or instrument delivered by the Company in connection with this Agreement or the other Transaction Documents, or the failure of any such representation or warranty to be true and correct when made or deemed made; (b) the representations breach or warranties non-fulfillment of any covenant or agreement of the Company contained in this Agreement or in any certificate document or instrument delivered by or on behalf of the Company pursuant to in connection with this Agreement (or the other than in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth therein, in which case it is understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in Article VI) or any Ancillary DocumentTransaction Documents; (c) any claim made or demand by any StockholderPerson (other than a Stockholder to the extent of his, Optionholder her or Convertible Note Holder relating to (iits Stockholder Ownership Percentage) such Person’s rights asserting any equity interest in the Company; provided that with respect to the Merger Consideration, (ii) the calculations and determinations matter set forth on the Consideration Spreadsheet, or Schedule 5.9 hereto involving Xxxxxx Xxxxxxxx (iiiAAA Arbitration No. 11-160-00591-2) the Amended Information Package (excluding indemnification set forth in this Section 12.(c) shall be limited to Losses that are specifically attributed to claims for equity interests in the publicly available Parent information included in such materials)Company as evidenced by the findings of fact or conclusions of law of a court of competent jurisdiction or arbitrator; (d) the PPP Loansmatter disclosed on Schedule 12.2(d), including regardless of whether such matter (ai) represents a failure of any Losses arising out representation or warranty contained in any Transaction Document to be true and correct when made or deemed made or (ii) represents a breach of any warranty, covenant or relating to agreement of the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, Company or any other application Owner contained in any Transaction Documents or certification submitted (iii) was disclosed to Parent in connection with the PPP Loans and (b) any audit Transaction Document or other Legal Proceeding arising out of or relating to the PPP Loans;otherwise; or (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”matter disclosed on Schedule 12.2(e), the application therefore and regardless of whether such matter (i) represents a failure of any audit representation or Legal Proceeding arising out of such application and loan; (f) warranty contained in any Transaction Expenses Document to be true and correct when made or Indebtedness deemed made or (ii) represents a breach of any warranty, covenant or agreement of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at any Owner contained in any Transaction Documents or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net Liability, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (giii) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver was disclosed to Parent a Letter of Transmittal on in any Transaction Document or before the Closingotherwise.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIII, the Stockholders Stockholders, severally and not jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent Holdings and its Affiliates (including Holdings and the Company) and their respective Representatives (collectively, the “Parent Holdings Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Holdings Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.223.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth thereinVI, in which case it is being understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in pursuant to Article VI) or any Ancillary Document); (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder Stockholder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) or the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials); (d) any amounts paid to the PPP Loansholders of Dissenting Shares, including (a) any Losses arising out interest required to be paid thereon, that are in excess of or relating to the PPP Loans, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out what such holders would have received hereunder had such holders not been holders of or relating to the PPP LoansDissenting Shares; (e) except for any amounts related thereto that are included in the Closing Liabilities in the calculation of the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not paid or satisfied by the Company at or prior to the Closing and to the extent not included as a Closing Liability in the calculation of Closing Net LiabilityClosing, or if paid by Parent Holdings or Merger Sub at or prior to the Closing; (f) the PPP Loans, including, without limitation, any non-compliance with the PPP Loans or with the CARES Act, any litigation arising in respect thereof or in relation thereto, any audit, review or investigation pertaining to the extent not included as a Closing Liability PPP Loans, and any retroactive determination of ineligibility with respect to the PPP Loans or reversal of forgiveness granted in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver to Parent a Letter of Transmittal on or before the Closingrespect thereof.

Indemnification by Stockholders. Subject to the other terms and conditions of this Article VIIIIX, including the Cap (as defined below), the Stockholders severally and not Stockholders, jointly (in accordance with their Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the CompanyCompany and the Surviving Corporation) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.223.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VIVII), or any Ancillary Document as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or Stockholder Representative pursuant to this Agreement (other than to the extent that any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI is subject to a remedy set forth thereinVII, in which case it is being understood that the sole remedy for any such breach, violation or failure shall be such remedy set forth in pursuant to Article VI) or any Ancillary DocumentVII); (c) any claim made by any Stockholder, Optionholder or Convertible Note Holder Stockholder relating to (i) such Person’s rights with respect to the Merger Consideration, (ii) or the calculations and determinations set forth on the Consideration Spreadsheet, or (iii) the Amended Information Package (excluding the publicly available Parent information included in such materials);Statement; or (d) any amounts paid to the PPP Loansholders of dissenting shareholders, including (a) any Losses arising out of or relating interest required to the PPP Loansbe paid thereon, the PPP Loan Applications, the PPP Forgiveness Applications, or any other application or certification submitted in connection with the PPP Loans and (b) any audit or other Legal Proceeding arising out of or relating to the PPP Loans; (e) except for any amounts related thereto that are included in excess of what such holders would have received hereunder had such holders not been holders of dissenting Shares. The aggregate amount of all Losses for which the Closing Liabilities in Stockholders shall be liable pursuant to this Section 9.02 shall not exceed the calculation fair market value of (i) the Closing Net Liability, the Loan Authorization and Agreement for an Economic Injury Disaster Loan dated June 10, 2020 (SBA Loan # 1343947905) between the Company and the SBA (the “EIDL Loan”), the application therefore and any audit or Legal Proceeding arising out of such application and loan; (f) any Transaction Expenses or Indebtedness of the Company outstanding Merger Share Consideration as of the Closing Date (the “Cap”) and (ii) the Additional Consideration as of the date upon which such consideration is paid to the extent not paid or satisfied by Stockholders. Notwithstanding any inconsistent provision in this Agreement, the Company at or prior liability of the Stockholders under this Agreement shall be limited to the Closing and to conveyance of shares of Parent Common Stock received as Merger Share Consideration or as Additional Consideration by such the extent not included as a Closing Liability in the calculation of Closing Net LiabilityStockholders, or if paid by Parent or Merger Sub at or prior to the Closing, to the extent not included as a Closing Liability in the calculation of Closing Net Liability; or (g) any claims or actions by any Stockholder, Optionholder or Convertible Note Holder that does not sign and deliver which such shares shall be surrendered to Parent a Letter and cancelled in satisfaction of Transmittal on any such liability. The foregoing limitations shall apply regardless of the particular theory of liability, whether based in contract, tort or before otherwise, and shall constitute such the ClosingStockholders sole and exclusive liability under this Agreement.