Common use of Indemnification by the Securityholders Clause in Contracts

Indemnification by the Securityholders. (a) Subject to the terms of this Article 8, from and after the Closing, the Securityholders shall (x) jointly and severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified Persons”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by the Company in this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iii) any breach of any covenant or agreement of the Group Companies to be performed prior to the Closing or the Securityholder Representative contained in this Agreement; (iv) any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determined); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation Agreements).

Indemnification by the Securityholders. (a) Subject to the other terms and conditions of this Article 8Agreement, from each Indemnifying Securityholder shall severally (based on each such holder’s Pro Rata Share), and after not jointly, indemnify, defend and hold harmless Parent, MergerCo and, effective at the Closing, without duplication, the Securityholders shall (x) jointly and severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates Surviving Company and their respective officers, directors, shareholders, members, employees, successors directors and permitted assigns members of their boards (collectively, the each a “Buyer Parent/MergerCo Indemnified PersonsParty”) and hold them harmless from and against to the extent of any and all Losses asserted against, imposed upon or incurred or suffered sustained by a Buyer any of the Parent/MergerCo Indemnified Person resulting from or Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) any the breach or inaccuracy of any representation or warranty made by of the Company contained herein or contained in this Agreement or in any certificate delivered by the Company at the Closing Certificate delivered pursuant hereto (to this Agreement, other than a Fundamental Representation)in respect of (A) the Specified Representations, (B) the IP Representations and (C) the Environmental Representations; (ii) any the breach or inaccuracy of any Fundamental Representation made by representation or warranty of the Company in this Agreementrespect of the IP Representations and the Environmental Representations; (iii) the breach of any representation or warranty of the Company in respect of the Specified Representations (other than under Section 4.8 (Taxes) hereof); (iv) any breach of any covenant or agreement of the Group Companies Company contained herein (other than covenants and agreements relating to be performed prior to the Closing or the Securityholder Representative Taxes contained in this Agreement; (iv) any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determinedSection 7.6); (v) any Losses attributable to (A) all Taxes (or the non-payment thereof) of the Company and its Subsidiaries for all taxable periods ending on or before the Closing Funded Indebtedness Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period”), (B) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any of its Subsidiaries (or any predecessor of any of the foregoing) is or was a member prior to the Closing, including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar state, local, or foreign law or regulation; (C) any and all Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing; (D) the breach of representations and warranties of the Company in respect of Taxes contained in Section 4.8 hereof, and (E) the breach of covenants and agreements of the Company in respect of Taxes contained in Section 7.6; provided, however, that in the case of clauses (A), (B), (C), (D) and (E) above, the Securityholders shall be liable only to the extent that such Taxes are not included in the calculation of the Closing Funded IndebtednessNet Working Capital. In the case of any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any Taxes based on or measured by income, receipts, sales or payroll of the Company and its Subsidiaries for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as finally determinedof the close of business on the Closing Date (and for such purpose, the taxable period of any partnership or other pass-through entity in which the Company or any of its Subsidiaries holds a beneficial interest shall be deemed to terminate at such time), and the amount of other Taxes of the Company and its Subsidiaries for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period; provided, however, that notwithstanding the foregoing and anything to the contrary in this Agreement, the Securityholders shall not be liable for (i) any Taxes resulting from an election made under Code Section 338(g) or under any comparable provisions of any other state, local or foreign laws, or (ii) any Taxes incurred on the Closing Date after the Closing that are outside the normal course of business of the Company or its Subsidiaries consistent with past practices; (vi) any Company Transaction Expenses of the Company’s fees, costs and expenses in connection with the negotiation and the consummation of the transactions contemplated by this Agreement and not included in the Closing Company Transaction Expenses, as finally determinedcalculation of the Estimated Net Working Capital; (vii) any Action or claim (including any claims or Actions relating payments paid with respect to any payments made Dissenting Shares to the extent that such payments, in accordance with this Agreementthe aggregate, exceed the Closing Date Payment Schedule or other instructions value of the Securityholder Representativeamounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares; (viii) the use by a current or former holder of equity or equity-linked securities any Group the Company or EIP (excluding, for purposes any Subsidiary of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) the inclusion in the Company Intellectual Property Assets of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminatedOpen Source Materials; and (viiiix) the matters set forth on Schedule 8.29.2(a)(ix), subject to the limitations set forth therein. (b) Subject The Parent/MergerCo Indemnified Parties’ indemnification rights pursuant to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out ofSection 9.2(a) shall be limited as follows: (i) The Parent/MergerCo Indemnified Parties shall not be entitled to any breach indemnification pursuant to Sections 9.2(a)(i)-(ii), until the aggregate dollar amount of all such Losses that would otherwise be indemnifiable equals or inaccuracy exceeds $250,000 (the “Threshold”), at which time the Parent/MergerCo Indemnified Parties shall be entitled to indemnification of any representation or warranty made by such Securityholder all Losses that would otherwise be indemnifiable pursuant to Sections 9.2(a)(i)-(ii) (including all Losses incurred prior to exceeding the Threshold), subject to the other limitations and qualifications set forth in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation);Article IX. (ii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to Section 9.2(a)(i) for any breach amount of indemnifiable Losses pursuant to Section 9.2(a)(i), in the aggregate, in excess of the then remaining portion of the General Claims Escrow Amount held in the Escrow Fund and the right of the Parent/MergerCo Indemnified Parties to recover for any indemnifiable Losses pursuant to Section 9.2(a)(i) shall be limited solely and exclusively to the then remaining portion of the General Claims Escrow Amount held in the Escrow Fund; provided, however, that the foregoing provisions of this Section 9.2(b)(ii) shall not apply to Losses sustained or inaccuracy incurred due to fraud by or on behalf of any Fundamental Representation made the Company or the Stockholders in connection with the transactions contemplated by such Securityholder in this Agreement or in any Option Cancellation Agreement; and. (iii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to Sections 9.2(a)(ii) or (viii) for any amount of indemnifiable Losses pursuant to Section 9.2(a)(ii) or (viii), in the aggregate, in excess of the sum of (A) the then remaining portion of the General Claims Escrow Amount held in the Escrow Fund plus (B) $5,500,000; provided, Parent has the sole option whether to recover such amounts first against the then remaining portion of the General Claims Escrow Amount held in the Escrow Fund; and provided, further, that the foregoing provisions of this Section 9.2(b)(iii) shall not apply to Losses sustained or incurred due to fraud by or on behalf of the Company or the Stockholders in connection with the transactions contemplated by this Agreement. (iv) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification (A) pursuant to Sections 9.2(a)(iii) through (vii) or (B) in connection with fraud by or on behalf of the Company in connection with the transactions contemplated by this Agreement for any amount of indemnifiable Losses, in the aggregate, in excess of the aggregate amount of the Merger Consideration actually paid to, received by and not otherwise forfeited by the Indemnifying Securityholders; provided, however, in the event an Indemnifying Securityholder participated in, or had actual knowledge of, fraud by or on behalf of the Company or the Stockholders in connection with the transactions contemplated by this Agreement, such Indemnifying Securityholder’s liability for such fraud shall be unlimited. (v) For purposes of clarity, the limitations set forth in clauses (ii) through (iv) of this Section 9.2(b) shall be inclusive of each other and shall not be applied cumulatively. (vi) For purposes of determining the amount of Losses arising from a breach of or inaccuracy in any representation, warranty, covenant or agreement obligation of such Securityholder contained the parties in this Agreement but not for purposes of determining whether any such representation, warrant, covenant or obligation has been breached or is inaccurate, limitations or qualifications as to dollar amount, materiality or Material Adverse Effect set forth in such representation, warranty, covenant or obligation shall be disregarded. (vii) No indemnification shall be payable to a Parent/MergerCo Indemnified Party with respect to claims asserted by such Parent/MergerCo Indemnified Party pursuant to Section 9.2(a) after the Indemnification Cut-Off Date or the applicable survival period set forth in Section 9.1, as the case may be. (viii) With respect to any claim for indemnification made by the Parent/MergerCo Indemnified Parties pursuant to this Agreement, each Securityholder shall only be liable (subject to the other Transaction Document limitations set forth herein) for such Securityholder’s Pro Rata Share of the Losses associated with such claim. (including ix) No indemnification shall be payable to a Parent/MergerCo Indemnified Party to the Option Cancellation Agreementsextent of any Losses asserted against, imposed upon or incurred or sustained by any of the Parent/MergerCo Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with the matters set forth on Schedule 9.2(b)(ix).

Indemnification by the Securityholders. Subject to the limitations set forth in this ARTICLE X: (a) Subject to the terms of this Article 8The Securityholders shall, from on a several basis (and after the Closing, the Securityholders shall (x) jointly and severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) not on a joint and several basis as among the Key Members (up basis, except with respect to the sum of the Key Members’ aggregate Securityholder Pro Rata Sharesmatters described in Section 7.08(f), and (z) which shall be on a joint and several basis), indemnify, defend and hold harmless Parent and each of its Representatives (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shareseach, indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the a “Buyer Parent Indemnified PersonsParty”) and hold them harmless from and against and in respect of, and pay and reimburse each Parent Indemnified Party for, any and all Losses incurred claims, losses, liabilities, costs, expenses, fines, penalties and damage, including reasonable investigation costs, settlement costs, court costs and reasonable legal fees and expenses (“Damages”) suffered or suffered by paid as a Buyer Indemnified Person resulting from result of, in connection with, relating to or arising out of: from (i) any the breach or inaccuracy by the Target Companies of any representation or warranty made by the Company Target Companies in this Agreement or in the Schedules or any certificate delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation); hereunder, (ii) any the breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iii) any breach Target Companies of any covenant or agreement of the Group Companies to be performed by them prior to the Closing or the Securityholder Representative contained in under this Agreement; , (iii) any Transaction Expenses that were not included or reflected in the Final Transaction Expenses or any Contingent Bonuses, (iv) any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expensesaccordance with Section 7.08(f), as finally determined); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtednessand all claims brought by Xxxxxx Xxxxxxx or any of his Affiliates, as finally determined; and/or (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.210.02 (the “Special Litigation”). Notwithstanding anything to the contrary in this Agreement, the Securityholders shall have no liability of any nature whatsoever to any Parent Indemnified Party with respect to the Special Litigation (as set forth on Schedule 10.02) except with respect to Damages for which the Securityholder Indemnifying Party receives notice in accordance with Section 10.06 on or before the date which is thirty (30) months from the Closing Date (the “Special Litigation End Date”). In the event that the Special Litigation is dismissed, resolved, or terminated by a final judgment, consent, stipulation, or other disposition by a court of competent jurisdiction, or settled in accordance with the terms hereof, at any time following the Survival End Date and prior to the Special Litigation End Date, all remaining Indemnification Escrow Funds, as herein defined, shall be released and distributed to Securityholders in accordance with the terms hereof and subject to the terms of the Indemnification Escrow Agreement after the payment from the Indemnification Escrow Fund to the applicable Parent Indemnified Party of any amounts to be paid in connection with such dismissal, resolution, termination, consent, stipulation or other disposition. (b) Subject to the terms of this Article 8VMG Tax-Exempt LP shall indemnify, from defend and after the Closing, hold harmless each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Parent Indemnified Persons and hold them harmless Parties from and against and in respect of, and pay and reimburse each Parent Indemnified Party for, any and all Losses incurred Damages suffered or suffered by paid as a Buyer Indemnified Person resulting from result of, in connection with, relating to or arising out of: from (i) the breach by any breach of VMG Blocker Corp., VMG General Partner or inaccuracy VMG Tax-Exempt LP of any representation or warranty made by such Securityholder Party in this Agreement, in any Option Cancellation Agreement or the Schedules or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); hereunder, (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any the breach of any covenant or agreement to be performed by any such Party prior to the Closing under this Agreement, and/or (iii) the breach of such Securityholder any covenant or agreement to be performed by VMG General Partner or VMG Tax-Exempt after the Closing under this Agreement; provided that nothing contained in this Agreement or any other Transaction Document (including Section 10.02(b) shall limit the Option Cancellation Agreementsindemnification obligations of the Securityholders set forth in Section 10.02(a). (c) Any Party providing indemnification pursuant to the provisions of this ARTICLE X is hereinafter referred to as a “Securityholder Indemnifying Party.” (d) Any Damages payable by any Securityholder Indemnifying Party pursuant to this Section 10.02 shall first be paid from the Indemnification Escrow Funds, and thereafter, directly from such Securityholder Indemnifying Party.

Indemnification by the Securityholders. (a) Subject to the other terms of this Article 8, from and after the ClosingSection 6.3, the Securityholders shall (x) jointly and will, severally to the extent of the Indemnity Escrow Amountbut not jointly, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Sharesdefend, indemnify Buyer and its Affiliates hold harmless Parent, Merger Sub and their respective officers, directors, shareholders, members, employees, successors and permitted assigns Representatives (collectively, the “Buyer Parent Indemnified PersonsParties”) and hold them harmless ), from and against and in respect of any and all Losses Losses, incurred or suffered by a Buyer any of Parent Indemnified Person resulting from or Parties arising out of, based upon or related to: (i) any inaccuracy or breach or inaccuracy of any representation of the representations or warranty warranties made by the Company in this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation)Transaction Documents; (ii) any breach of or inaccuracy of failure to comply with any Fundamental Representation covenant or agreement made by the Company in this AgreementAgreement or the other Transaction Documents; (iii) any breach Proceedings by equity holders or employees, or former equity holders or employees, or any Persons claiming to be an equity holder, of the Company relating to: (i) the exercise of dissenters’, appraisal or similar rights; (ii) any alleged right to receive any securities, options, cash or other consideration not provided pursuant to this Agreement; (iii) the Information Statement, including any claims relating to any untrue statement or alleged untrue statement of a material fact contained in the Information Statement, or in any amendment or supplement thereto, or relating to any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (iv) the existence of any covenant equity, employee benefit, employee stock option or agreement of the Group Companies to be performed prior other similar contractual right with respect to the Closing or the Securityholder Representative contained in this AgreementCompany; (iv) any Pre-Company Taxes for any Tax period (or portion thereof) ending on or prior to the Closing Date, excluding 50% of any Transfer Taxes incurred in connection with this Agreement or any of the Contemplated Transactions (but only to the extent that such Pre-Closing Taxes are were not reflected as a liability taken into account in the calculation final determination of Working Capital); provided that notwithstanding anything to the contrary in this Agreement, Parent Indemnified Parties shall not have any right to indemnification under this Agreement for Losses relating to Taxes resulting from actions taken by Parent, the Company or any of its Affiliates after the Closing Working Capital or as Company Transaction Expenses, as finally determined);on the Closing Date that are outside the ordinary course of business; and (v) any claim relating to any Closing Funded Date Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company or Selling Transaction Expenses not fully paid on the Closing Date or not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions computation of the Securityholder Representative) by a current or former holder of equity or equity-linked securities Merger Consideration (including, without limitation, any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking adjustment to assert, or based upon or arising out of: (i) ownership or rights Merger Consideration pursuant to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation AgreementsSection 1.7).

Indemnification by the Securityholders. (a) Subject In the event that the Closing occurs, and subject to the terms of this Article 8, from and after the Closinglimitations expressly set forth in Section 9.6 hereof, the Securityholders shall (x) jointly and severally will have an obligation, on an individual basis solely in proportion to the extent aggregate Merger Consideration payable to them pursuant to this Agreement, to indemnify, defend and hold harmless the Purchaser, each of the Indemnity Escrow AmountPurchaser's Affiliates, the Surviving Corporation and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum each of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, membersofficers, employees, successors agents, consultants, advisors, representatives and permitted assigns equity holders (collectively, the “Buyer "Purchaser Indemnified Persons”Parties") and hold them harmless from and against against, and will pay to the Purchaser Indemnified Parties the monetary value of, any and all Losses incurred or suffered by a Buyer the Purchaser Indemnified Person Parties arising out of or resulting from any of the following: any inaccuracy in or arising out of: (i) any breach or inaccuracy of any representation or warranty made by of the Company contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in to this Agreement; (iii) any ; the nonfulfillment, nonperformance or other breach of any covenant or agreement of the Group Companies Company required to be fulfilled or performed at or prior to the Closing or the Securityholder Representative Effective Time contained in this Agreement; (iv) , any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determined); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Ancillary Agreement or in any Option Cancellation Agreementcertificate or instrument delivered by the Company pursuant hereto; and (iii) any breach action taken by the Stockholder Representative which the Stockholder Representative is not authorized to take under Section 11.1 hereof; any failure of any covenant Securityholder to have good, valid and marketable title to the issued and outstanding shares of Company Capital Stock or agreement Options issued in the name of such Securityholder holder free and clear of all Encumbrances; and any assertion or recovery by any Stockholder of the fair value, interest, and expenses or other amounts pursuant to dissenters' rights exercised or purportedly exercised pursuant to the DGCL (it being understood that any such Losses will not include the pro rata share of the Merger Consideration such asserting or recovering Stockholder would have received pursuant to this Agreement). For purposes of determining under this Section 9.1 whether there is any inaccuracy in, or whether the Company has breached, any such representation, warranty or covenant, and the amount of any Losses associated therewith, the parties agree that all references to "material," "materially" or "materiality," or to whether a breach would have a "Material Adverse Effect" contained in this Agreement the Specified Representations will be disregarded for purposes of calculating such Losses (although any such qualifications will be taken into account for purposes of determining the existence of such an inaccuracy or any other Transaction Document (including breach and whether such representation or warranty has been inaccurate or breached in the Option Cancellation Agreementsfirst instance).

Indemnification by the Securityholders. (a) Subject to the terms of this Article 8limitations set forth herein, from each Securityholder shall, severally and not jointly, indemnify and defend Parent, the Buyer and their respective Affiliates (including, after the Closing, the Securityholders shall (xCompany) jointly and severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates and their respective stockholders, members, managers, officers, directors, shareholdersemployees, members, employeesagents, successors and permitted assigns (the “Buyer Indemnitees”) against, and shall hold them harmless from, any and all losses, damages, claims (including third-party claims), charges, Liabilities, actions, suits, proceedings, interest, penalties, Taxes, diminutions in value (but excluding any diminution in value related to the reduction or disallowance of any net operating losses of the Company), costs and expenses (including legal and other advisor fees and fees and costs incurred in enforcing rights under this Agreement) (collectively, the “Buyer Indemnified PersonsLosses”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or from, arising out of: , or incurred by any Buyer Indemnitee in connection with, or otherwise with respect to (i) any inaccuracy or breach or inaccuracy of any representation or warranty made by the Company in this Agreement or brought down in any the certificate delivered by furnished to the Company at the Closing Buyer pursuant hereto (other than a Fundamental Representationto Section 6.2(d); ; (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iiiif such breach occurs prior to the Interim Effective Time) any breach or the Representative of any covenant or agreement of the Group Companies to be performed prior to the Closing or the Securityholder Representative contained in this Agreement; ; (iii) any fees, expenses or other payments incurred or owed by the Company or any Seller to any agent, broker, investment banker or other firm or Person retained or employed by it in connection with the transactions contemplated by this Agreement; (iv) any Tax (other than any payroll or similar tax imposed on amounts payable pursuant to this Agreement) imposed on the Company with respect to any Pre-Closing Taxes Period (except to the extent that the Sellers have already made payments with respect of such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determinedTax pursuant to Section 5.10(a); ); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; the failure by the Company to deliver an executed Acknowledgment and Release from the Persons listed on Section 8.2(a) of the Company Disclosure Schedule; and (vi) any Company Transaction Expenses not included the allocation of Severance (as defined in the Closing Company Transaction Expenses, as finally determined; (viiSeverance Plan) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, under the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP Severance Plan (excluding, for the avoidance of doubt, Losses resulting from, arising out of or in connection with the failure of Buyer or Parent to pay any Severance when due). For purposes of clarity, Buyerclarifying the meaning of “several” indemnification by the Securityholders under this Section 8.2(a), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (iiy) any right based on such Personamounts recovered by Indemnified Persons from the Escrow Fund pursuant to this ARTICLE VIII shall be deemed to have been “severally” recovered from all of the Securityholders and (z) with respect to claims for indemnification under this Section 8.2(a) that would not be paid out of the Escrow Fund if any indemnification payment is owed, each Securityholder’s capacity as a claimed holder of equity or equity-linked securities indemnification obligation pursuant to this ARTICLE VIII (including subject to the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters limitations set forth on Schedule 8.2in ARTICLE VIII) shall be limited to such Securityholder’s Post-Closing Pro Rata Share of the applicable Losses with respect to which the indemnification payment is made. (b) Subject The Securityholders shall not be liable for any Losses pursuant to Section 8.2(a)(i) or 8.2(a)(ii) (other than Losses arising from breaches of the Company Fundamental Representations or arising from willful breaches of covenants) unless and until the aggregate amount of all Losses incurred by the Buyer Indemnitees under Sections 8.2(a)(i) and 8.2(a)(ii) (other than Losses arising from breaches of the Company Fundamental Representations or arising from willful breaches of covenants) exceeds $2,000,000, in which event the Securityholders shall be liable for all of the Losses from the first dollar. From and after the Closing, (i) the Escrow Fund shall be the sole recourse and exclusive remedy for the Buyer Indemnitees against the Securityholders for satisfaction of the Securityholders’ indemnification obligations pursuant to Sections 8.2(a)(i) and 8.2(a)(ii) (except in the case of Losses arising from breaches of Fundamental Representations or arising from willful breaches of covenants if there are no funds and/or Parent Units remaining in the Escrow Fund to satisfy indemnification obligations with respect to such Losses) and (ii) any indemnification obligations of the Securityholders under Sections 8.2(a)(iii), 8.2(a)(iv), 8.2(a)(v) and 8.2(a)(vi) shall first be satisfied from the Escrow Fund to the extent that there are funds and/or Parent Units remaining in the Escrow Fund. In addition, in no event shall any Securityholder’s aggregate liability pursuant to Section 8.2(a)(i) for breaches of Company Fundamental Representations exceed (i) 50% of the total consideration payable to such Securityholder pursuant to ARTICLE II of this Agreement (inclusive of such Securityholder’s allocable portion of the Escrow Fund) less (ii) any amount from the Escrow Fund allocable to such Selling Securityholder previously used to satisfy any indemnification claims hereunder. To the extent any indemnification obligations under Section 8.2(a) for which recourse is not limited to the Escrow Fund cannot be satisfied from the Escrow Fund, each Securityholder may, in such Securityholder’s discretion, satisfy a portion of such indemnification obligations by transferring Parent Units to the applicable Buyer Indemnitee (and such transfer shall be deemed a payment by the Securityholder to the applicable Buyer Indemnitees of an amount equal to the number of Parent Units transferred multiplied by the Parent Unit Value); provided, however, that no more than 58% of the amount of each indemnification obligation may be satisfied by a Securityholder by transferring Parent Units. The foregoing limitations shall not apply in the case of fraud. Notwithstanding anything contained herein to the contrary, in no event shall a Securityholder’s liability for indemnifiable Losses of the Buyer Indemnitees exceed the aggregate consideration received by such Securityholder pursuant to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation Agreements).

Indemnification by the Securityholders. (a) Subject to the terms of this Article 8, from and after the Closing, the Securityholders shall (x) jointly and Each Securityholder severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not jointjointly) basis as to shall indemnify and hold harmless the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer Company and each of its Affiliates and their respective officersAffiliates, directors, shareholdersofficers, employees, members, employeesmanagers, successors agents and each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), any underwriter that facilitates the sale of Registrable Securities and any Person who controls such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted assigns (collectivelyby applicable law, the “Buyer Indemnified Persons”) and hold them harmless from and against any and all Losses incurred to which they or suffered by any of them may become subject insofar as such Losses arise out of or are based upon any untrue or alleged untrue statement of a Buyer Indemnified Person resulting from or arising out of: (i) material fact contained in any breach or inaccuracy of any representation or warranty made by the Company in this Agreement Registration Statement pursuant to which Registrable Securities were registered, Prospectus, preliminary Prospectus, road show or in any certificate delivered by amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in the case of any Prospectus, preliminary prospectus or road show, in light of the circumstances under which they were made, to make the statements therein not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information furnished to the Company at by or on behalf of such Securityholder specifically for inclusion therein; provided, however, that the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iii) any breach of any covenant or agreement of the Group Companies maximum amount to be performed prior indemnified by such Securityholder pursuant to this Section 12(b) shall be limited to the Closing net proceeds (after deducting underwriters’ discounts and commissions) received by such Securityholder in the registration to which such Registration Statement, Prospectus, preliminary prospectus or the road show relates; provided, further, that a Securityholder Representative contained shall not be liable in this Agreement; (iv) any Pre-Closing Taxes (case to the extent that prior to the filing of any such Pre-Closing Taxes are Registration Statement, Prospectus, preliminary prospectus or road show or any amendment thereof or supplement thereto, each Securityholder has furnished in writing to the Company, information expressly for use in, and within a reasonable period of time prior to the effectiveness of such Registration Statement or the use of the Prospectus, preliminary prospectus or road show, or any amendment thereof or supplement thereto which corrected or made not reflected as a liability misleading information previously provided to the Company. This indemnity agreement will be in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determined); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating addition to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities liability which any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation Agreements)may otherwise have.

Indemnification by the Securityholders. (a) Subject to the terms provisions of this Article 8IX, from the Securityholders shall, severally, but not jointly, indemnify, defend and after hold harmless Parent, MergerCo and, effective at the Closing, without duplication, the Securityholders shall (x) jointly and severally to the extent of the Indemnity Escrow Amount, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates Surviving Company and their respective officers, directors, shareholders, members, employees, successors directors and permitted assigns members of their boards or representatives (collectively, the each a “Buyer Parent/MergerCo Indemnified PersonsParty”) and hold them harmless from and against to the extent of any and all Losses asserted against, imposed upon or incurred or suffered sustained by a Buyer any of the Parent/MergerCo Indemnified Person resulting from or Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) any the breach or inaccuracy of any representation or warranty made by of the Company contained herein or contained in any Schedule to this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto (to this Agreement, other than a Fundamental Representationin respect of the Specified Representations; provided, however, that any materiality or any similar qualifications contained in such representations and warranties shall be disregarded for the purpose of assessing any indemnification obligation under this Section 9.2(a)(i); (ii) any the breach or inaccuracy of any Fundamental Representation made by representation or warranty of the Company in respect of the Specified Representations (provided that the Securityholders’ Representative is given an Indemnification Claim Notice during the applicable survival period specified in Section 9.1 above) other than breaches of the representations in Section 4.8, which are governed exclusively by Section 9.2(a)(iv)); provided, however, that any materiality or any similar qualifications contained in such representations and warranties shall be disregarded for the purpose of assessing any indemnification obligation under this AgreementSection 9.2(a)(ii); (iii) any breach of any covenant or agreement of the Group Companies to be performed prior to the Closing Company or the Securityholder Representative Securityholders contained herein or contained in any Schedule to this Agreement or any certificate delivered pursuant to this Agreement; (iv) (A) the breach of any representation or warranty of the Company in respect of Section 4.8 (provided, however, that any materiality or any similar qualifications contained in such representations and warranties shall be disregarded for the purpose of assessing any indemnification obligation under this Section 9.2(a)(iv)), and, without duplication, (B) (i) all Taxes (or the non-payment thereof) of the Company for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period’’), (ii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor) is or was a member on or prior to the Closing Date, including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar state, local, or foreign law or regulation, (iii) any and all Taxes of any Person imposed on the Company as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing, and (iv) the employer portion of all payroll or similar Taxes to be incurred as a result of payments under this Agreement in respect of Company Participation Units; provided, however, that the Securityholders shall be liable only to the extent that such Pre-Closing Taxes are not included or reflected as a liability in the calculation of the Final Closing Net Working Capital Capital. In the case of any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any Taxes based on or measured by income, receipts, sales or payroll of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other Taxes of the Company Transaction Expenses, as finally determined)for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period; (v) any Closing Funded Indebtedness of the Company’s fees, costs and expenses in connection with the negotiation and the consummation of the transactions contemplated by this Agreement and not included in the calculation of the Final Closing Funded Indebtedness, as finally determined;Adjustment Amount; or (vi) any payments or Losses arising out of, or relating to, (A) the Company Transaction Expenses not included Participation Units, or (B) the Company Incentive Compensation Plan, in each case, other than the Aggregate Participation Unit Base Consideration At Closing Company Transaction Expensesand the Aggregate Participation Unit Additional Consideration, as finally determined;if any. (viib) The Parent/MergerCo Indemnified Parties’ indemnification rights pursuant to Section 9.2(a) shall be limited as follows: (i) The Parent/MergerCo Indemnified Parties shall not be entitled to any Action indemnification pursuant to Sections 9.2(a)(i) and 9.2(a)(ii) until the aggregate dollar amount of all such Losses that would otherwise be indemnifiable equals or claim exceeds $200,000 (the “Threshold”), at which time the Parent/MergerCo Indemnified Parties shall be entitled to indemnification of all Losses that would otherwise be indemnifiable pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) (including all Losses incurred prior to exceeding the Threshold). (ii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to Section 9.2(a)(i) for any amount of indemnifiable Losses pursuant to Section 9.2(a)(i) in excess of the Escrow Amount and the right of the Parent/MergerCo Indemnified Parties to recover for any indemnifiable Losses pursuant to Section 9.2(a)(i) shall be limited solely and exclusively to the Escrow Amount; provided, however, that the foregoing provisions of this Section 9.2(b)(ii) shall not apply to Losses sustained or incurred due to fraud or any willful misconduct or willful concealment by or on behalf of the Company or the Members. (iii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to Section 9.2(a) (other than pursuant to Section 9.2(a)(i)) for any amount of indemnifiable Losses in excess of the aggregate amount of the Merger Consideration and from any Member in excess of such Member’s pro rata portion of the aggregate amount of the Merger Consideration; provided, however, that the foregoing provisions of this Section 9.2(b)(iii) shall not apply to Losses sustained or incurred due to fraud or any willful misconduct or willful concealment by or on behalf of the Company or the Members. (iv) No indemnification shall be payable to a Parent/MergerCo Indemnified Party with respect to claims asserted by such Parent/MergerCo Indemnified Party pursuant to Section 9.2(a)(i) after the Indemnification Cut-Off Date. (v) In calculating the amount of Losses suffered or Actions relating incurred by Parent/MergerCo Indemnified Party there shall be deducted the amount of any insurance proceeds or any recovery from a third party, actually paid to such Parent/MergerCo as a result of any payments made in accordance with this Agreementsuch Losses (excluding the premiums associated therewith). In the event that any claim for indemnification asserted hereunder is, or may be, the Closing Date Payment Schedule subject of any insurance coverage or other instructions right to indemnification or contribution from any third Person, such Parent/MergerCo Indemnified Party expressly agrees to promptly notify the applicable insurance carrier of any such claim or loss and tender defense thereof to such carrier, and shall also promptly notify any potential third party indemnitor or contributor which may be liable for any portion of such losses or claims. The Parent/MergerCo Indemnified Party further agrees to pursue, at the cost and expense of the Securityholder RepresentativeSecurityholders, such claims diligently and to reasonably cooperate, at the cost and expense of the Securityholders, with each applicable insurance carrier and third party indemnitor or contributor. The Parent/MergerCo Indemnified Party shall use commercially reasonable efforts to seek recoveries under insurance policies and shall reimburse the Securityholders for any damages indemnified by them, which is subsequently recovered by the Parent/MergerCo Indemnified Party under any such insurance. (vi) by Notwithstanding anything to the contrary herein, Securityholders shall not be obligated to indemnify Parent/MergerCo against any Losses as a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assertresult of, or based upon or arising out of: (i) ownership or rights to ownership (or from, any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject liability to the terms of this Article 8, from and after extent the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement amount of such Securityholder contained claim or liability is taken into account in this Agreement or any other Transaction Document (including determining the Option Cancellation Agreements)Final Closing Adjustment Amount.

Indemnification by the Securityholders. (a) Subject In the event that the Closing occurs, and subject to the terms of this Article 8, from and after the Closinglimitations expressly set forth in Section 9.6 hereof, the Securityholders shall (x) jointly and severally will have an obligation, on an individual basis solely in proportion to the extent aggregate Merger Consideration payable to them pursuant to this Agreement, to indemnify, defend and hold harmless the Purchaser, each of the Indemnity Escrow AmountPurchaser’s Affiliates, the Surviving Corporation and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum each of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, membersofficers, employees, successors agents, consultants, advisors, representatives and permitted assigns equity holders (collectively, the “Buyer Purchaser Indemnified PersonsParties”) and hold them harmless from and against against, and will pay to the Purchaser Indemnified Parties the monetary value of, any and all Losses incurred or suffered by a Buyer the Purchaser Indemnified Person Parties arising out of or resulting from or arising out ofany of the following: (ia) any inaccuracy in or breach or inaccuracy of any representation or warranty made by of the Company contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in to this Agreement; (iiib) any the nonfulfillment, nonperformance or other breach of any covenant or agreement of the Group Companies Company required to be fulfilled or performed at or prior to the Closing or the Securityholder Representative Effective Time contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by the Company pursuant hereto; (ivc) any Pre-Closing Taxes (action taken by the Stockholder Representative which the Stockholder Representative is not authorized to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determined)take under Section 11.1 hereof; (vd) any Closing Funded Indebtedness not included in Closing Funded Indebtednessfailure of any Securityholder to have good, as finally determined; (vi) any valid and marketable title to the issued and outstanding shares of Company Transaction Expenses not included Capital Stock or Options issued in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions name of the Securityholder Representative) by a current or former such holder free and clear of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminatedall Encumbrances; and (viiie) any assertion or recovery by any Stockholder of the matters set forth on Schedule 8.2. (b) Subject fair value, interest, and expenses or other amounts pursuant to dissenters’ rights exercised or purportedly exercised pursuant to the terms of this Article 8, from and after DGCL (it being understood that any such Losses will not include the Closing, each Key Member, on a joint and several basis (up to the sum pro rata share of the Key Members’ aggregate Securityholder Pro Rata SharesMerger Consideration such asserting or recovering Stockholder would have received pursuant to this Agreement). For purposes of determining under this Section 9.1 whether there is any inaccuracy in, or whether the Company has breached, any such representation, warranty or covenant, and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy amount of any Losses associated therewith, the parties agree that all references to “material,” “materially” or “materiality,” or to whether a breach would have a “Material Adverse Effect” contained in the Specified Representations will be disregarded for purposes of calculating such Losses (although any such qualifications will be taken into account for purposes of determining the existence of such an inaccuracy or breach and whether such representation or warranty made by such Securityholder has been inaccurate or breached in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation Agreementsfirst instance).

Indemnification by the Securityholders. (a) Subject to the terms of this Article 8, from and after the ClosingSection 7.5, the Securityholders Securityholders, severally but not jointly, shall (x) jointly and severally to the extent of the Indemnity Escrow Amountsave, and thereafter, (y) on a joint and several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Sharesdefend, indemnify Buyer and hold harmless the Acquiror and its Affiliates and their respective Affiliates, officers, directors, shareholdersemployees, members, employeesagents, successors and permitted assigns (collectively, the “Buyer Acquiror Indemnified PersonsParties”) and hold them harmless from and against any and all Losses losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, Taxes, costs and expenses (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or suffered by defending the foregoing), but (unless arising under a Buyer Indemnified Person Third Party Claim) not including any punitive, incidental, consequential, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (hereinafter collectively, “Losses”) to the extent resulting from or arising out offrom: (ia) any breach or inaccuracy of any representation or warranty made by the Company contained in this Agreement (or in any certificate delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representationherewith); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iiib) any breach of any covenant or agreement of by the Group Companies to be performed prior to the Closing or the Securityholder Representative Company contained in this Agreement; Agreement (iv) or any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determinedcertificate delivered herewith); (vc) except to the extent constituting an Excluded Tax and subject to Section 7.5, any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, liability for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership all Taxes (or rights to ownership non-payment thereof) of the Company or any of its Subsidiaries for Tax periods (or portions thereof) ending on or before the Closing or (ii) all Income Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any of its Subsidiaries (or any claim alleging predecessor of such ownership person) is or rights was a member on or prior to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options)Closing, including any option, preemptive right or right pursuant to notice or to vote or (iii) any claim that such Person’s equity or equityTreasury Regulations Section 1.1502-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated6; and (viiid) any claim for appraisal of Dissenting Shares for an amount in excess of the matters set forth on Schedule 8.2. (b) Subject right to receive a portion of the Merger Consideration pursuant to the terms and conditions of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this Agreement, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder contained in this Agreement or any other Transaction Document (including the Option Cancellation Agreements).

Indemnification by the Securityholders. Each Securityholder shall indemnify and hold harmless the Purchaser, on a basis providing for shared culpability in accordance with each Securityholder’s Post-Closing Percentage Interest (except as otherwise provided in Section 11.01(a)), in respect of and against, and will compensate and reimburse the Purchaser for, any and all Damages incurred or suffered by any Purchaser Indemnified Party (regardless of whether such Damages relate to any Third Party Action) resulting from, relating to or constituting: (a) Subject any breach of or inaccuracy in any representation or warranty of (i) any Securityholder (with respect to which such Securityholder’s indemnification obligation (other than with respect to recovery against the terms of this Article 8, from and after the Closing, the Securityholders shall (x) jointly and severally to the extent of funds held in the Indemnity Escrow AmountAccount and, and thereafterif applicable, (ythe Interim Breach Escrow Account) on a joint and shall be several basis as among the Key Members (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and (z) on a several (and not joint) basis as to the Securityholders other than the Key Members in accordance with their respective Securityholder Pro Rata Shares, indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified Persons”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by the Company in this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by the Company in this Agreement; (iii) any breach of any covenant or agreement of the Group Companies to be performed prior to the Closing or the Securityholder Representative contained in this Agreement; (iv) any Pre-Closing Taxes (to the extent that such Pre-Closing Taxes are not reflected as a liability in the calculation of Closing Working Capital or as Company Transaction Expenses, as finally determined); (v) any Closing Funded Indebtedness not included in Closing Funded Indebtedness, as finally determined; (vi) any Company Transaction Expenses not included in the Closing Company Transaction Expenses, as finally determined; (vii) any Action or claim (including any claims or Actions relating to any payments made in accordance with this Agreement, the Closing Date Payment Schedule or other instructions of the Securityholder Representative) by a current or former holder of equity or equity-linked securities any Group Company or EIP (excluding, for purposes of clarity, Buyer), or by any other Person, seeking to assert, or based upon or arising out of: (i) ownership or rights to ownership (or any claim alleging such ownership or rights to ownership) of any equity or equity-linked security (including the Options) of any Group Company or EIP; (ii) any right based on such Person’s capacity as a claimed holder of equity or equity-linked securities (including the Options), including any option, preemptive right or right to notice or to vote or (iii) any claim that such Person’s equity or equity-linked interests (including the Options) of any Group Company or EIP were wrongfully repurchased, cancelled or terminated; and (viii) the matters set forth on Schedule 8.2. (b) Subject to the terms of this Article 8, from and after the Closing, each Key Member, on a joint and several basis (up to the sum of the Key Members’ aggregate Securityholder Pro Rata Shares), and each other Securityholder, on a several and not joint basis, indemnify the Buyer Indemnified Persons and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (i) any breach or inaccuracy of any representation or warranty made by such Securityholder in this AgreementAcquired Company, in any Option Cancellation Agreement or any certificate delivered by the Securityholders at the Closing pursuant hereto (other than a Fundamental Representation); (ii) any breach or inaccuracy of any Fundamental Representation made by such Securityholder in this Agreement or in any Option Cancellation Agreement; and (iii) any breach of any covenant or agreement of such Securityholder each case contained in this Agreement or any other agreement or instrument furnished to the Purchaser pursuant to this Agreement; (b) any failure to perform any covenant or agreement of any Securityholder or any Acquired Company (if such covenant or agreement requires performance by such Acquired Company at or prior to the Closing) contained in this Agreement or any other agreement or instrument furnished to the Purchaser pursuant to this Agreement; (c) any Indebtedness and any Transaction Document Expenses, in each case to the extent in excess of the amounts included in the final determination of the Purchase Price; (including d) (i) any and all Taxes due and payable by any Acquired Company for, or allocated in accordance with Section 9.01(g) to, any Pre-Closing Tax Period; (ii) any Taxes for which any Acquired Company has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Laws as a result of being a member of an affiliated, consolidated, combined, unitary or similar group on or prior to the Option Cancellation AgreementsClosing Date (other than any group which includes the Purchaser or any of its Affiliates); (iii) any Taxes of any Person imposed on any Acquired Company as a transferee or successor, pursuant to any contractual obligation, or otherwise, which Tax is related to the operations of any Acquired Company on or prior to the Closing Date or an event or transaction occurring before the Closing; (iv) any Transfer Taxes allocated to the Sellers pursuant to Section 9.01(d); and (v) any Chinese Capital Gains Tax; provided that the Securityholders’ obligations under this Section 11.01(d) shall not include any Taxes (A) that result from the manner in which the Purchaser finances its obligations under this Agreement, (B) that are attributable to any transactions outside the ordinary course of business occurring on the Closing Date but after the Closing, (C) to the extent such Taxes are included in the Net Working Capital and/or the Transaction Expenses, as finally determined under this Agreement, or (D) that are attributable to a breach of Section 9.01(f); (e) the Restructuring Transactions and the Distribution; or (f) any Actual Fraud or Knowing Misrepresentation on the part of any Acquired Company or any Securityholder in connection with the transactions contemplated by this Agreement.