Common use of Indemnification of Parent and Merger Sub Clause in Contracts

Indemnification of Parent and Merger Sub. From and after the Closing and subject to the limitations contained in this Article IX, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, their respective Affiliates (including the Surviving Corporation) and each of their and their Affiliates’ respective shareholders, officers, directors, employees, agents, Representatives and successors and assigns (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (a) the inaccuracy or breach of any representations and warranties set forth in Article IV of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation of the Company or any Shareholder contained in this Agreement or any Ancillary Agreement (c) any demand for appraisal or assertion of dissenter’s rights by any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4), (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed by the Company or any of its Subsidiaries (at or prior to the Effective Time), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. From The Company agrees to indemnify and after the Closing and subject to the limitations contained in this Article IXhold harmless each of Parent, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, their respective Affiliates (including the Surviving Corporation) , each of their respective subsidiaries and affiliates and each of their and their Affiliatessubsidiaries’ and affiliates’ respective shareholdersdirectors, officers, directors, employees, agents, Representatives agents and successors employees (each an indemnified party) at all times from and assigns (collectively, after the “Parent Indemnified Parties”) Closing from and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs Damages (as defined below) that result from (i) the breach or expenses (including reasonable out-of-pocket expenses inaccuracy of investigation and reasonable and documented attorneys’ fees and expenses any representation or warranty of the Company set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a valid claim for indemnification is brought by an indemnified party, (ii) the Intrac Dispute, (iii) any Actionbreach or nonfulfillment by the Company, whether involving or any noncompliance by the Company with, any material covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iv) any claim by a Third-Party Claim holder or a claim solely between former holder of the Parties heretoCompany’s capital stock or options, to enforce warrants or other securities convertible into or exercisable for shares of the provisions hereof) and reasonable and documented attorneys’ fees Company’s capital stock (collectively, the “DamagesCompany Convertible Securities”) that the Parent Indemnified Parties have incurred arising out ofor any other person, seeking to assert, or based upon: (aA) ownership or rights of ownership to any shares of capital stock of the inaccuracy or breach Company; (B) any rights of any representations and warranties set forth in Article IV a stockholder of the Company (other than the right to receive the New Parent Shares pursuant to this Agreement or any Ancillary Agreement appraisal rights under the applicable provisions of the Corporation Law), including any Third-Party Claim alleging facts thatoption, if truepreemptive rights, would constitute a breach of or rights to notice or to vote; (C) any such representation rights under the charter or warranty, (b) a breach of any covenant or other obligation bylaws of the Company Company; or any Shareholder contained in this Agreement or any Ancillary Agreement (cD) any demand for appraisal claim that his, her or assertion its shares or Company Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of dissenter’s rights by whether an action, suit or proceeding can or has been made against the Company, and any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4)and all actions, (d) any inaccuracy in, or claims suits and Proceedings resulting from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, foregoing (e) Fraud committed by the Company hereinafter called a “Buyer Claim” or any of its Subsidiaries (at or prior to the Effective Time“Buyer Claims”), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. From By their approval of this Agreement and after the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing and Date agrees, subject to the limitations contained in this Article IXterms and conditions set forth herein, each Shareholder will, to severally and not jointlyjointly based upon such Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and hold harmless each of Parent, Merger Sub, their respective Affiliates (including the Surviving Corporation) , each of their respective subsidiaries and affiliates and each of their and their Affiliates’ subsidiaries' and affiliates' respective shareholdersdirectors, officers, directors, employees, agents, Representatives agents and successors employees (each an indemnified party) at all times from and assigns (collectively, after the “Parent Indemnified Parties”) Closing from and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses Damages (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”as defined below) that the Parent Indemnified Parties have incurred arising out of: results from (ai) the breach or inaccuracy or breach of any representations and warranties set forth in Article IV of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation warranty of the Company or such Company Stockholder set forth in the Agreement or in any Shareholder contained certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 10.1, or any Ancillary Agreement (cii) any demand for appraisal breach or assertion of dissenter’s rights by any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4), (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed nonfulfillment by the Company or such Company Stockholder, or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) any claim by a holder or former holder of the Company's capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's capital stock (the "CONVERTIBLE SECURITIES") or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCL), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of its Subsidiaries the foregoing (at hereinafter called a "BUYER CLAIM" or prior to the Effective Time"BUYER CLAIMS"), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. (a) From and after the Closing and subject to the limitations contained in this Article IX, each Shareholder Stockholder will, jointly and severally to the extent of the funds within the Indemnification Escrow Fund and the extent of the funds within the Special Indemnification Escrow Fund and, thereafter, severally and not jointly, in accordance with jointly up to such ShareholderStockholder’s Pro Rata Portion of the Merger Consideration, indemnify Parent Parent, GDC America, Inc. and Merger Sub, their respective Affiliates (including the Surviving Corporation) and each of their and their Affiliates’ respective shareholders, officers, directors, employees, agents, Representatives and successors and assigns (collectively, the “Parent Indemnified Parties”) and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (ai) the inaccuracy or breach of any representations and warranties set forth in Article IV of this Agreement or Agreement, any Ancillary Agreement (other than the Specified Offer Letters), including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (bii) a breach of any covenant or other obligation of the Company or any Shareholder the Stockholders’ Representative contained in this Agreement or any Ancillary Agreement (cother than the Specified Offer Letters), (iii) any Third-Party Claim in respect of Closing Indebtedness or Company Transaction Expenses to the extent such claim was not taken into account in the calculation of the Closing Date Purchase Price or any adjustment thereto pursuant to Section 3.3, (iv) any demand for appraisal or assertion of dissenter’s rights by any Shareholder stockholder of the Company in connection with the Merger (including the amount per Share payable to the applicable any amounts paid in respect of a Dissenting Share in accordance with Section 2.4excess of the Fully Diluted Common Number), (dv) any inaccuracy in, or claims from any Shareholder Stockholder related to or arising out of, the Allocation Closing Consideration Schedule, including to the extent any Shareholder Stockholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Closing Consideration Schedule, (evi) Fraud committed by the Company or any of its Subsidiaries (at or prior to the Effective Time), (fvii) any Pre-Closing Taxes and (gviii) the Special Indemnification Items. (b) From and after the Closing and subject to the limitations contained in this Article IX, a Stockholder will severally, and not jointly, up to such Stockholder’s Pro Rata Portion of the Merger Consideration, indemnify and hold the Parent Indemnified Parties harmless against all Damages that the Parent Indemnified Parties have incurred arising out of a breach of any representation, warranty, covenant or other agreement of such Stockholder, in such capacity, contained in this Agreement or any Ancillary Agreement (other than the Specified Offer Letters). For the avoidance of doubt, only the breaching Stockholder, and no other Stockholder, shall have indemnification obligations under this Section 9.1(b).

Indemnification of Parent and Merger Sub. From By their approval of this Agreement and after the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing and Date agrees, subject to the limitations contained in this Article IXterms and conditions set forth herein, each Shareholder will, to severally and not jointlyjointly based upon such Company Stockholder’s pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Common Stock, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and hold harmless each of Parent, Merger Sub, their respective Affiliates (including Sunset, the Surviving Corporation) , each of their respective subsidiaries and affiliates and each of their and their Affiliatessubsidiaries’ and affiliates’ respective shareholdersdirectors, officers, directors, employees, agents, Representatives agents and successors employees (each an indemnified party) at all times from and assigns (collectively, after the “Parent Indemnified Parties”) Closing from and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses Damages (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”as defined below) that the Parent Indemnified Parties have incurred arising out of: results from (ai) the breach or inaccuracy or breach of any representations and warranties set forth in Article IV of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation warranty of the Company or such Company Stockholder set forth in the Agreement or in any Shareholder contained certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 11.1, or any Ancillary Agreement (cii) any demand for appraisal breach or assertion of dissenter’s rights by any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4), (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed nonfulfillment by the Company or such Company Stockholder, or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent and Sunset, or (iii) any claim by a holder or former holder of the Company’s capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company’s capital stock (the “Convertible Securities”) or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the Corporation Law), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of its Subsidiaries the foregoing (at hereinafter called a “Parent Claim” or prior to the Effective Time“Parent Claims”), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. From and after the Closing and subject (a) Subject to the limitations contained in this Article IX8, the Company and the Shareholders shall severally, but not jointly, defend, indemnify and hold harmless Parent and Merger Sub and their respective officers, directors, stockholders, employees and agents from and against any and all losses, claims, judgments, liabilities, demands, charges, suits, penalties, costs or expenses, including court costs and reasonable attorneys' fees, in each Shareholder willcase net of insurance proceeds and tax benefits (to the extent quantifiable), ("Claims and Liabilities") with respect to or arising from (i) the breach of any warranty or any inaccuracy of any representation made by the Company in this Agreement, (ii) the breach of any covenant or agreement made by the Company in this Agreement or (iii) the transfer of the SMB Business. (b) In addition the obligations set forth in Section 8.1(a) above, the Company and the Shareholders shall, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion defend, indemnify and hold harmless Parent and Merger Sub, Sub and their respective Affiliates (including the Surviving Corporation) and each of their and their Affiliates’ respective shareholders, officers, directors, employeesstockholders, agents, Representatives employees and successors agents against any and assigns (collectively, all Claims and Liabilities with respect to or arising from any claims for any right to receive Merger Consideration made by any Person who is not a holder of Company Stock at the “Parent Indemnified Parties”) Effective Time or is a holder of Company Stock and hold claiming a right to Merger Consideration inconsistent with the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (a) the inaccuracy or breach of any representations and warranties set forth in Article IV of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation of the Company or any Shareholder contained in this Agreement or any Ancillary Agreement Merger Consideration Certificate. (c) any demand for appraisal or assertion of dissenter’s rights by any Shareholder (including Any indemnification payable with respect to Claims and Liabilities asserted pursuant to this Section 8.1 shall be apportioned among the amount per Share Shareholders, on a pro rata basis based on their respective ownership interests as set forth on the Merger Consideration Certificate. No indemnification shall be payable with respect to the applicable Share in accordance with Claims and Liabilities asserted pursuant to this Section 2.4), (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including 8.1 to the extent the cumulative amount of all such Claims and Liabilities exceeds $1,000,000 (the "Indemnification Cap"), and the liability of any Shareholder is entitled to receive any amounts in excess under this Section 8.1 shall not exceed the Shareholder's portion of the amounts indicated liability, on a pro rata basis based upon such Shareholder's ownership interest as set forth on the Allocation Schedule, (e) Fraud committed by the Company or any of its Subsidiaries (at or prior to the Effective Time), (f) any Pre-Closing Taxes and (g) the Special Indemnification ItemsMerger Consideration Certificate.

Indemnification of Parent and Merger Sub. From By their approval of this Agreement and after the Closing Merger and by their acceptance of the Merger Consideration, each of the Designated Company Stockholders agrees, subject to the limitations contained in this Article IXterms and conditions set forth herein, each Shareholder will, to severally and not jointly, based upon such Designated Company Stockholder's pro rata share of the Merger Consideration payable in accordance with such Shareholder’s Pro Rata Portion respect of all outstanding shares of Company Stock, indemnify Parent and hold harmless each of Parent, Merger Sub, their respective Affiliates (including the Surviving Corporation) , each of their respective subsidiaries and affiliates and each of their and their Affiliates’ subsidiaries' and affiliates' respective shareholdersdirectors, officers, directors, employees, agents, Representatives agents and successors employees (each an indemnified party) at all times from and assigns (collectively, after the “Parent Indemnified Parties”) Closing from and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs Damages (as defined below) that result from (i) the breach or expenses (including reasonable out-of-pocket expenses inaccuracy of investigation and reasonable and documented attorneys’ fees and expenses any representation or warranty of the Company set forth in this Agreement or in any certificate or other document delivered in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (a) the inaccuracy or breach of any representations and warranties set forth in Article IV of transactions contemplated by this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any (as such representation or warrantywarranty would read if all qualifications as to materiality and material adverse effect were deleted therefrom) as of the date the same were made, with respect to which a claim for indemnification is brought by an indemnified party within the Survival Period described in Section 8.1, or (bii) a any breach of or nonfulfillment by the Company, or any covenant noncompliance by the Company with, any covenant, agreement, or obligation contained herein or in any certificate or other obligation document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) the Excluded Obligations, or (iv) any claim by a holder or former holder of the Company's or Enikia LLC's Securities or options, warrants or other securities convertible into or exercisable for shares of the Company's or Enikia LLC's Securities (the "CONVERTIBLE SECURITIES") or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any equity security of the Company or any Shareholder contained in this Agreement or any Ancillary Agreement Enikia LLC; (cB) any demand for appraisal or assertion rights of dissenter’s rights by any Shareholder an equity holder of the Company (including other than the amount per Share payable right to receive the applicable Share in accordance with Section 2.4Merger Consideration pursuant to this Agreement), including any option, preemptive rights, or rights to notice or to vote; (dC) any inaccuracy inrights of an equity holder of Enikia LLC, including any option, preemptive rights or claims rights to notice or to vote; (D) any rights under the Certificate of Incorporation or By-Laws of the Company; or (E) any claim that his, her or its Company Shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and proceedings resulting from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, foregoing (e) Fraud committed by the Company hereinafter called a "BUYER CLAIM" or any of its Subsidiaries (at or prior to the Effective Time"BUYER CLAIMS"), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. From and after the Closing and subject (a) Subject to the limitations contained set forth in this Article IXVIII, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, Sub and their respective Affiliates (including after the Closing, the Surviving Corporation) Corporation and each of their its Subsidiaries), and their Affiliates’ respective shareholderssuccessors and permitted assigns, officers, employees, directors, employeesmanagers, agentsmembers, Representatives partners, stockholders and successors agents and assigns their heirs and personal representatives (collectively, the “Parent Indemnified PartiesIndemnitees”) shall be indemnified solely out of the Indemnity Escrow Account from and hold against, and the Escrow Agent shall cause to be paid to the Parent Indemnified Parties harmless against Indemnitees the amount of, any and all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses Losses actually incurred by any of the Parent Indemnitees based upon (i) any failure of the representations and warranties of the Company contained in this Agreement (including reasonable out-of-pocket expenses the schedules and exhibits attached hereto and the certificate delivered pursuant to Section 7.1(a)) to be true and correct (A) as of investigation and reasonable and documented attorneys’ fees and expenses the date hereof or (B) in connection all material respects as of the Closing Date (or, with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, respect to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (a) the inaccuracy or breach of any representations and warranties set forth in Article IV that address matters as of this Agreement or a different date, the failure of such representations and warranties to be true and correct as of such date), (ii) any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation the covenants or warranty, (b) a breach of any covenant or other obligation agreements of the Company or any Shareholder contained in this Agreement or any Ancillary Agreement (c) any demand for appraisal or assertion of dissenter’s rights by any Shareholder (including the amount per Share payable schedules and exhibits attached hereto and the certificate delivered pursuant to the applicable Share in accordance with Section 2.47.1(b)), or (diii) any inaccuracy in, or and all claims from any Shareholder related to or arising out ofof the termination of the Terminated Employees. (b) From and after the Closing Date and ending upon the release of all remaining assets in the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement, the Allocation Schedule, including Parent Indemnitees will be entitled to the extent reimbursement for Losses for which any Shareholder Parent Indemnitee is entitled to receive indemnification pursuant to Section 8.3(a) by release of assets to Parent from the Indemnity Escrow Account by the Escrow Agent in accordance with the terms of the Escrow Agreement and such release of funds from the Indemnity Escrow Account shall serve as the sole and exclusive remedy available to the Parent Indemnitees to be indemnified and held harmless for any Losses pursuant to this Section 8.3. (c) The Escrow Agreement shall provide that all of the remaining assets in the Indemnity Escrow Account shall be released to the Securityholders in accordance with their Pro Rata Percentages upon the expiration of the Escrow Period, except for any amounts which are the subject of any claims for indemnity made in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed good faith by the Company or any of its Subsidiaries (at or Parent Indemnitees prior to the Effective Time)expiration of the Escrow Period. (d) If Backstop Securities shall have been deposited into the Indemnity Escrow Account, then in the event that any amounts are due to a Parent Indemnitee pursuant to this Section 8.3, the parties shall cause the Escrow Agent to release from the Indemnity Escrow Account to such Parent Indemnitee (fi) any Pre-Closing Taxes with respect to Backstop Securities held by the Escrow Agent on account of the Backstop Investors, Backstop Securities held in the Indemnity Escrow Account having an aggregate Face Amount and accumulated but unpaid dividends thereon equal to the lesser of (A) the amount of such indemnifiable Loss multiplied by the aggregate Pro Rata Percentage of all of the Backstop Investors or (B) the aggregate Face Amount and accumulated but unpaid dividends of all Backstop Securities then held in the Indemnity Escrow Account and (gii) with respect to amounts held by the Special Indemnification ItemsEscrow Agent on account of all other Securityholders, by wire transfer of immediately available funds, in each case in accordance with the Pro Rata Percentages. Any such release by the Escrow Agent shall be made in accordance with the Order of Priority. Dividends paid on, or distributions made in respect of, Backstop Securities held in the Indemnity Escrow Account shall be made by Parent directly to the Backstop Investors. In the event that there are accumulated but unpaid dividends on the Backstop Securities held in the Indemnity Escrow Account, the Backstop Investors shall have the right to receive such dividends when and as they are paid without regard to the facts and circumstances of the release, if any, of the Backstop Securities from the Indemnity Escrow Account.

Indemnification of Parent and Merger Sub. 9.1.1 From and after the Closing and subject Closing, only to the limitations contained in this Article IXextent of the Unspecified Escrowed Funds, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, the Acquired Companies and their respective Affiliates (including the Surviving Corporation) and each of their and their Affiliates’ respective shareholdersdirectors, officers, directorsemployees, employeesAffiliates, stockholders, agents, Representatives and representatives, successors and permitted assigns (collectively, the “Parent Indemnified PartiesIndemnitees”), shall be entitled to be indemnified for and held harmless from: (a) any Losses based upon, resulting from, arising out of, caused by or in connection with the failure of, any inaccuracy in, or breach of, any of the representations and hold warranties in Article 4 (other than the Parent Indemnified Parties harmless against all damagesrepresentations in Section 4.7 which are covered in Section 9.1(c) below) to be true and correct on the date hereof or the Closing Date; provided, losseshowever, out-for purposes of calculating Losses for any breach of or inaccuracy in such representations and warranties, any materiality, Material Adverse Effect or similar qualifications in such representations and warranties shall be disregarded; (b) any Losses based upon, resulting from, arising out of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs caused by or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim breach or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: (a) the inaccuracy or breach nonperformance of any representations and warranties set forth in Article IV of this Agreement covenant, agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation of the Company or any Shareholder contained the Stockholders’ Representative in this Agreement or any Ancillary Agreement Agreement; (c) notwithstanding any demand for appraisal disclosure contained herein or assertion otherwise known to any of dissenter’s rights the Parent Indemnitees, any Losses based on, resulting from, arising out of, caused by or in connection with any (1) Taxes payable by any Shareholder Acquired Company with respect to any Pre-Closing Tax Period or for the Straddle Period to the extent allocable or attributable to the portion of such period prior to the Closing (except to the extent such Taxes are reflected in the Final Adjustment Statement), or (2) breaches of the representations or warranties in Section 4.7 hereof. For purposes of this paragraph 9.1(c), in the case of any Straddle Period, (i) real, personal and intangible property Taxes (“Property Taxes”) of the Acquired Companies allocable to the period prior to the Closing shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in such period up to and including the Closing Date and the denominator of which is the number of days in the Straddle Period; and (ii) the Taxes of the Acquired Companies (other than Property Taxes) allocable to the portion of the Straddle Period prior to the Closing shall be computed as if such taxable period ended as of the close of business at the Closing Date. Notwithstanding the foregoing, the Parent Indemnitees shall not be entitled to any indemnification pursuant to this Agreement for any Loss relating to a liability for Taxes (i) for any Tax period beginning after the Closing Date or the portion of any Straddle Period that is not allocable or attributable to the portion of such period prior to the Closing pursuant to the preceding sentence of this Section 9.1(c), (ii) attributable to any action (including any election made or deemed made under Code Section 338 with respect to any Acquired Company) taken after the amount per Share payable Closing by Parent, any of Parent’s Affiliates (including any Acquired Company) or any transferee of Parent or any of its Affiliates (other than any such action expressly required by applicable law or by this Agreement) (a “Buyer Tax Act”) or (iii) attributable to the applicable Share in accordance with Section 2.4), a breach by Parent of its obligations under this Agreement; (d) any inaccuracy inLosses based upon, or claims from any Shareholder related to or arising out of, of or caused by the Allocation Schedule, including disallowance or unavailability of a deduction or the failure to the extent any Shareholder is entitled to receive withhold any amounts in excess required to be withheld pursuant to Section 4999 of the amounts indicated on the Allocation ScheduleCode, (e) Fraud committed with respect to any “excess parachute payment” made by the Company or any of its Subsidiaries (at the Acquired Companies within the meaning of Section 280G of the Code made on or prior to the Effective Time), Closing Date; and (fe) any Pre-Closing Taxes Losses based upon, arising out of or caused by (i) any failure to properly and successfully exercise the covenant defeasance option in accordance with the terms of the provisions of the Indenture; (ii) any failure to comply with the terms and provisions of the Indenture with respect to the redemption of the Securities (as defined in the Indenture); and (giii) any failure to otherwise satisfy the Special Indemnification Itemsobligations of any of the Acquired Companies under or with respect to the Indenture or the Securities.

Indemnification of Parent and Merger Sub. From and after the Closing and subject Subject to the limitations contained set forth in this Article IX9, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, Sub and their respective Affiliates (including including, from and after the Effective Time, the Surviving CorporationCorporation and its Subsidiaries) and each of their and their Affiliates’ respective shareholders, officers, directors, agents, representatives, employees, agents, Representatives and successors and assigns (collectively, the hereinafter referred to individually as a “Parent Indemnified PartiesPerson” and collectively as “Parent Indemnified Persons”) shall be indemnified, compensated and hold held harmless by the Parent Indemnified Parties harmless Equityholders (on a joint and several basis, to the extent of the Escrow Fund and any offset against Earnout Consideration, and otherwise on a several and not joint basis, allocated among the Consenting Equityholders based on their respective Indemnity Pro Rata Shares, in each case as further provided in Section 9.2(c)), as set forth in this Article 9, from and against any and all damagesactions or causes of action, lossesproceedings, out-of-pocket expensesettlements, Liabilitiesjudgments, finesamounts payable, claims, forfeitures, obligations, Actionspayments, Taxes, judgmentsdiminutions in value, and Liabilities, including interest, awards, penalties, feesrestitution, costs or expenses disgorgement, fines and fees (including reasonable out-of-pocket expenses attorneys’ and consultants’ fees and reasonable costs of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereofClaims) and reasonable and documented attorneys’ fees (collectively, “DamagesLosses”) that the Parent Indemnified Parties have incurred ), arising out of: of or resulting from any of the following: (ai) any breach, untruth or inaccuracy of (A) any representation or warranty of the inaccuracy Company contained in this Agreement as of the date hereof or as of the Closing Date as though such representation or warranty were made on the Closing Date, determined, in each case, without regard to any material, materiality, or Material Adverse Effect qualification contained therein, or (B) any representation, warranty or certification of the Company (or any officer thereof) contained in any certificate delivered pursuant to Section 7.2 or any other certificate or document delivered pursuant to this Agreement as of the date such representation, warranty or certification is made, determined, in each case, without regard to any material, materiality, or Material Adverse Effect qualification contained therein; (ii) any breach or non-performance by the Company or the Equityholders’ Representative of any representations and warranties set forth of its covenants or agreements contained in Article IV this Agreement; (iii) any fraud or intentional misrepresentation by or on behalf of the Company, any Equityholders or any Series D Holders under or relating to this Agreement or related to the Company, any Ancillary Agreement including of its Subsidiaries or the transactions contemplated hereby; (iv) any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, (b) a breach of any covenant or other obligation Indebtedness of the Company or any Shareholder contained of its Subsidiaries to the extent not paid prior to Closing or deducted from the Closing Merger Consideration as contemplated in the definition thereof; (v) any Company Transaction Expenses (including, regardless of any disclosure on the Company Disclosure Schedule, any broker’s, financial advisor’s, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement) to the extent not paid prior to the Closing or deducted from the Closing Merger Consideration as contemplated in the definition thereof; (vi) any Claim relating to the exercise or purported exercise of Appraisal Rights or Dissenters’ Rights under the Appraisal Rights Statutes (including all legal fees and expenses and other court cost and expenses), as well as any obligation to pay additional consideration in respect of any Dissenting Shares, with such Losses to include the amount equal to the excess, if any, of (A) any amounts Parent, Merger Sub, the Company or the Surviving Corporation are required 87 by a court of competent jurisdiction to pay, or pay in settlement, in respect of any Dissenting Shares (to the extent a Governmental Authority determines that any Appraisal Rights Statute is applicable to the Merger) over (B) the amount of the portion of the Merger Consideration into which such Dissenting Shares would have been converted in the Merger had such shares not been Dissenting Shares; (vii) any Claim (A) that any Stock Option, Warrant, Convertible Note or share of Preferred Stock or Common Stock entitles the holder thereof to anything other than the cash payments specified in Sections 3.1 or 3.2, (B) that any Stock Option was not validly cancelled, or any Warrant was not validly terminated, as of the Effective Time, (C) that any share of Series D Preferred Stock was not validly redeemed prior to, or cancelled at or prior to, the Effective Time, (D) that any Convertible Note was not validly converted into capital stock of the Company prior to the Closing, or that any Convertible Note was not validly redeemed or repaid in connection with Closing (other than as a result of Parent’s failure to comply with Section 3.11(a)), (E) made by or on behalf of any Equityholder, alleged Equityholder or any other Person (including any Series D Holder) who asserts that they were entitled to any of the Merger Consideration (or any additional or incremental amount of Merger Consideration) by virtue of any Contract (including any Warrant or Convertible Note), ownership of capital stock of the Company (including any shares of Series D Preferred Stock) or otherwise, or (F) challenging, disputing or objecting to the amount of the portion of the Merger Consideration received or to be received by any such Equityholder or alleged Equityholder; (viii) any Claim (A) challenging, disputing or objecting to the Merger or the Merger Consideration, (B) alleging violations of fiduciary duty by any director, officer or agent of the Company in connection with the Merger or the other transactions contemplated by this Agreement or (C) by any Ancillary Agreement Equityholder relating to (cI) any demand for appraisal alleged action or assertion failure to act on its behalf by the Equityholders’ Representative or (II) the authority of dissenter’s rights by the Equityholders’ Representative; (ix) any Shareholder (A) errors, inaccuracies or omissions in the Payout Schedule or any Updated Payout Schedule, or (B) failure of the Payout Schedule or any Updated Payout Schedule to comply with or conform to the Charter or the Company Equity Plans as in effect immediately prior to the Effective Time; (x) the obligations of the Surviving Corporation pursuant to Section 6.17 (including the amount per Share payable any indemnification of, or payments or advancements to, any Covered Person in compliance therewith, but excluding any indemnification of, or payments or advancements to, any Covered Person to the applicable Share extent arising out of any conduct, acts or omissions of such Covered Person after the Closing Date in accordance with Section 2.4his or her capacity as a director, manager, managing director or officer of the Surviving Corporation or any Subsidiary of the Surviving Corporation); (xi) regardless of any disclosure on the Company Disclosure Schedule, any transaction between the Company or any of its Subsidiaries, on the one hand, and any Equityholder (or Series D Holder) or any Affiliate of an Equityholder (or Series D Holder), on the other hand; (dxii) regardless of any inaccuracy indisclosure on the Company Disclosure Schedule, the following Taxes and, except as otherwise provided in Section 10.3, any Losses incurred in contesting or claims otherwise in connection with any such Taxes: (A) Taxes imposed on the Company or any of its Subsidiaries with respect to Tax periods ending on or before the date of the Effective Time; (B) with respect to Straddle Periods, Taxes imposed on the Company or any of its Subsidiaries which are 88 allocable, pursuant to Section 10.1, to the portion of such period ending on the date of the Effective Time; (C) Taxes imposed on or with respect to the transactions contemplated by this Agreement; (D) Taxes imposed on any Person other than the Company or any of its Subsidiaries for which the Company or any of its Subsidiaries is liable by operation of Law or agreement with respect to any Tax period or any portion of a Tax period occurring on or before the date of the Effective Time; and (E) Taxes imposed on Parent, the Company or any of its Subsidiaries or, after the Effective Time, the Surviving Corporation or any of its Subsidiaries, as a result of any breach of warranty or misrepresentation under Section 4.16; provided, however, that a Tax shall not be taken into account for purposes of this clause (xii) if, and to the extent that, Liability for such Tax (1) has been taken into account as a reduction in Working Capital for purposes of Section 3.8; or (2) is attributable to any action of Parent or any of its Affiliates after the Closing on the Closing Date outside of the ordinary course of business or relates to any Tax attributable to any Tax period or portion thereof beginning after the Closing Date; (xiii) regardless of any disclosure on the Company Disclosure Schedule, the treatment as an “excess parachute payment” (within the meaning of Code Section 280G(b)) of any payment made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company, the Surviving Corporation or any of their respective Affiliates or Subsidiaries before, on or after the Closing Date pursuant to written or oral Contracts or agreements entered into on or prior to the Closing Date; (xiv) regardless of any disclosure on the Company Disclosure Schedule, any Liability of the Company under, resulting from any Shareholder related to or arising out of, of Section 409A of the Allocation ScheduleCode, including to the extent any Shareholder is entitled to receive any amounts in excess Liability of the amounts indicated Company or any of its Subsidiaries for any Claims from any Person for indemnification or reimbursement of any taxes, penalties or other liability such Person incurs under, as a result of or arising out of Section 409A of the Code; (xv) regardless of any disclosure on the Allocation Company Disclosure Schedule, (eA) Fraud committed the existence prior to the Effective Time of the Cayman Subsidiary, (B) any action, omission, election, decision or conduct prior to the Effective Time by or with respect to (including by the Company or any of its Subsidiaries with respect to) the Cayman Subsidiary, including the preparation or filing of (at or any failure to prepare or file) Tax Returns, or the payment of (or any failure to pay) Taxes, by or with respect to the Cayman Subsidiary, (C) any fact, event, development, circumstance or condition in respect of the Cayman Subsidiary existing prior to the Effective Time, (D) any Contract or arrangement entered into by or with (including by the Company or any of its Subsidiaries with) the Cayman Subsidiary prior to the Effective Time (except to the extent such Losses arise from or result from a breach of such Contract or arrangement by the Surviving Corporation or any of its Subsidiaries after the Effective Time), or (f) any Pre-Closing Taxes and (gE) the Special Indemnification Items.performance of, or any actions taken in furtherance of or in compliance with, Section 6.19; (xvi) regardless of any disclosure on the Company Disclosure Schedule, any failure, prior to the Closing, by the Company, any Subsidiary of the Company or any of their respective officers, directors, managers, managing directors or employees, or by any other Person acting on behalf of the Company or any Subsidiary of the Company, to comply with applicable Health Care Laws or Improper Payment Laws; and (xvii) items listed on Exhibit Q.

Indemnification of Parent and Merger Sub. From The Company agrees to indemnify and after the Closing and subject to the limitations contained in this Article IXhold harmless each of Parent, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, their respective Affiliates (including the Surviving Corporation) , each of their respective subsidiaries and affiliates and each of their and their Affiliatessubsidiaries’ and affiliates’ respective shareholdersdirectors, officers, directors, employees, agents, Representatives agents and successors employees (each an indemnified party) at all times from and assigns (collectively, after the “Parent Indemnified Parties”) Closing from and hold the Parent Indemnified Parties harmless against all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs Damages (as defined below) that result from (i) the breach or expenses (including reasonable out-of-pocket expenses inaccuracy of investigation and reasonable and documented attorneys’ fees and expenses any representation or warranty of the Company set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a valid claim for indemnification is brought by an indemnified party, or (ii) any Actionbreach or nonfulfillment by the Company, whether involving or any noncompliance by the Company with, any material covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) any claim by a Third-Party Claim holder or a claim solely between former holder of the Parties heretoCompany’s capital stock or options, to enforce warrants or other securities convertible into or exercisable for shares of the provisions hereof) and reasonable and documented attorneys’ fees Company’s capital stock (collectively, the “DamagesCompany Convertible Securities”) that the Parent Indemnified Parties have incurred arising out ofor any other person, seeking to assert, or based upon: (aA) ownership or rights of ownership to any shares of capital stock of the inaccuracy or breach Company; (B) any rights of any representations and warranties set forth in Article IV a stockholder of the Company (other than the right to receive the New Parent Shares pursuant to this Agreement or any Ancillary Agreement appraisal rights under the applicable provisions of the Corporation Law), including any Third-Party Claim alleging facts thatoption, if truepreemptive rights, would constitute a breach of or rights to notice or to vote; (C) any such representation rights under the charter or warranty, (b) a breach of any covenant or other obligation bylaws of the Company Company; or any Shareholder contained in this Agreement or any Ancillary Agreement (cD) any demand for appraisal claim that his, her or assertion its shares or Company Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of dissenter’s rights by whether an action, suit or proceeding can or has been made against the Company, and any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4)and all actions, (d) any inaccuracy in, or claims suits and Proceedings resulting from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, foregoing (e) Fraud committed by the Company hereinafter called a “Buyer Claim” or any of its Subsidiaries (at or prior to the Effective Time“Buyer Claims”), (f) any Pre-Closing Taxes and (g) the Special Indemnification Items.

Indemnification of Parent and Merger Sub. From and after the Closing In accordance with and subject to the limitations contained in provisions of this Article IX10, each Shareholder willof the Majority Shareholders (collectively, severally "Indemnitors") shall, jointly and not jointlyseverally, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and hold harmless Parent, Merger Sub, their respective Affiliates (including the Surviving Corporation) and each of their Company and their Affiliates’ , and their respective shareholders, officers, directors, employeesagents and employees (other than for any officer, agentsdirector, Representatives agent or employee who is an Indemnitor hereunder; collectively, "Indemnitees"), from and successors against and assigns in respect of any and all loss, damage, liability, claim, cost and expense, including reasonable attorneys' fees and amounts paid in settlement pursuant to Paragraph 10.3(b) (collectively, the “Parent "Indemnified Parties”) and hold Losses"), suffered or incurred by any one or more of the Parent Indemnified Parties harmless against all damagesIndemnitees by reason of, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising out of: : (a) the inaccuracy any misrepresentation, breach of warranty, or breach or nonfulfillment of any representations agreement of Company or any of the Majority Shareholders contained in this Agreement, or in any certificate, schedule, document, agreement or instrument delivered to Parent and warranties set forth in Article IV Merger Sub by or on behalf of Company or any of the Majority Shareholders pursuant to the provisions of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty, Agreement; (b) a breach all obligations and liabilities of Company other than the Disclosed Liabilities, whether direct or indirect, fixed or contingent, known or unknown, including, without limitation, all obligations and liabilities resulting from or arising out of any covenant default, performance or other obligation of non-performance by Company prior to the Closing Date under or with respect to any Company or any Shareholder contained in this Agreement or any Ancillary Agreement Contract; and (c) any demand for appraisal claims, liabilities, obligations, damages, costs and expenses, known or assertion of dissenter’s rights unknown, fixed or contingent, claimed or demanded by any Shareholder (including the amount per Share payable to the applicable Share in accordance with Section 2.4)third parties against Parent, (d) any inaccuracy in, Merger Sub or claims from any Shareholder related to or Company arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed by the Company or any resulting from operation of its Subsidiaries (at or Company's Business prior to the Effective Time)Closing Date, (f) including without limitation, any Pre-Closing Taxes liability or obligation related to any recoupment of an amount previously paid or reimbursement to Company by any Government under the Medicare, Medicaid or any other state health care program or by any other third party payor with respect to health care services. Without limiting the generality of the foregoing or of any other provision of this Article 10, any amount that is recouped, offset, or otherwise taken by a Government or other Person acting as a third party payor for health care services in a manner that reduces a payment or reimbursement otherwise payable or due to an Indemnitee from such Person shall be deemed to constitute an immediate damage to the Indemnitee and (g) an Indemnified Loss hereunder at the Special Indemnification Itemstime of the recoupment, offset or other such taking, notwithstanding any right of any Person to appeal or otherwise protest with respect thereto; provided, however, that any amount that is subsequently recovered by or restored to the Indemnitee shall be immediately payable by the Indemnitee to any Indemnitor who has previously paid indemnification with respect thereto.

Indemnification of Parent and Merger Sub. From and after the Closing and subject Subject to the limitations contained in this Article IX12, each Shareholder will, severally and not jointly, in accordance with such Shareholder’s Pro Rata Portion indemnify Parent and Merger Sub, their respective Affiliates the Company (including the Surviving Corporationprior to Closing) and the Shareholders each of their shall jointly and severally indemnify, defend and hold harmless Parent, Merger Sub and their Affiliates’ , and their respective shareholdersofficers, officersmembers, managers, directors, employeesemployees and shareholders, agents, Representatives and their respective successors and assigns (collectively, the “"Parent Indemnified Parties”") from and hold the Parent Indemnified Parties harmless against any and all damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (including reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that the Parent Indemnified Parties have incurred arising Damages which arise out of: , result from or relate to: (a) the inaccuracy or any breach of any representations and warranties set forth representation or warranty made by the Company or Shareholders in Article IV of this Agreement or in any Ancillary Agreement including any Third-Party Claim alleging facts thatcertificate or document delivered at Closing by the Company or Shareholders pursuant to this Agreement, if trueprovided, would constitute a breach of that to the extent that any such representation or warranty, warranty is qualified by materiality or whether there is or could result a "Material Adverse Effect," such qualifications shall be ignored for purposes of indemnification under this Section 12.2(a); (b) any and all Taxes imposed on or assessed against the Company, the Subsidiaries and the Shareholders with respect to all Pre-Closing Periods, whether or not set forth on any Tax Return (but excluding payroll and withholding Taxes to the extent reserved for on the Closing Date Balance Sheet but only to the extent reflected as a breach Current Liability on the Statement of any covenant Working Capital); without limiting the generality of the foregoing, such Taxes shall include (i) all Taxes shown on the Final Returns, (ii) all sales, use, transfer or other obligation similar Taxes that arise or are due as a result of the Company Merger or any Shareholder contained in this Agreement Contemplated Transactions and (iii) all Taxes that arise or any Ancillary Agreement are due as a result of the transfer of the Excluded Assets to the Shareholders; (c) any demand and all amounts due to any Governmental Authority with respect to unclaimed property for appraisal or assertion all Pre-Closing Periods in excess of dissenter’s rights by any Shareholder (including the amount per Share payable to accrued therefor on the applicable Share in accordance with Section 2.4), Closing Date Balance Sheet; and (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (e) Fraud committed breach by the Company or Shareholders of any agreement, covenant or obligation of its Subsidiaries (at Shareholders or prior to the Effective Time), (f) any Pre-Closing Taxes and (g) the Special Indemnification ItemsCompany contained in this Agreement.