Common use of Indemnification of Parent Indemnified Parties Clause in Contracts

Indemnification of Parent Indemnified Parties. (a) From and after the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6), each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent and its officers, directors, Affiliates, employees, agents and representatives, including the Company (the “Parent Indemnified Parties”), against any and all claims, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against or settling any of the foregoing (collectively, “Damages”), incurred or sustained by the Parent Indemnified Parties, or any of them (including the Company), directly or indirectly, as a result of the following: (i) any breach or inaccuracy of a representation or warranty of the Company contained in Section 2 or in a certificate or other instrument executed and delivered by the Company pursuant to this Agreement; (ii) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed by it prior to the Closing; (iii) any inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet; (iv) any amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without regard to such threshold.

Indemnification of Parent Indemnified Parties. (a) From and after After the Effective Time (but Time, and subject to Section 6.1 and the other applicable provisions of this Section 6)Article IX and the Escrow Agreement, each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent Parent, the Surviving Corporation and its and their respective officers, directors, Affiliatesemployees and shareholders (collectively, employees, agents and representatives, including the Company (the “Parent Indemnified Parties”), ) shall be indemnified and held harmless solely from the Indemnification Escrow Amount from and against any and all claimsLiabilities, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, expenses (including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses expenses) actually suffered or incurred by them (including, without limitation, in connection with investigatingany Third-Party Claim) (hereinafter, defending against or settling any of the foregoing (a “Loss” and collectively, “DamagesLosses”), incurred arising out of, relating to or sustained by the Parent Indemnified Parties, or any of them resulting from (including the Company), directly or indirectly, as a result of the following:without duplication): (i) any the breach of or inaccuracy of a in any representation or warranty of the Company contained in Section 2 or in a certificate or other instrument executed and delivered made by the Company pursuant (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” and words of similar import set forth therein) in this AgreementAgreement (other than the representations and warranties set forth in Section 4.12); (ii) any the failure of the Company or any of its Subsidiaries or the Shareholder Representative to perform or comply with any covenant or agreement applicable to it contained made by each of them in this Agreement to be performed by it prior to the Closing;Agreement; or (iii) any inaccuracy or omission in those matters giving rise to Tax Losses for which the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that Parent Indemnified Parties are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet; (iv) any amount paid (including be indemnified in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to accordance with Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing6.9(e). (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered Any payment pursuant to this Agreement, Section 9.2 shall be made in which case the maximum amount that form of a transfer from the Indemnification Escrow Account to the applicable Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal Party pursuant to the amount terms and conditions of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without regard to such threshold.

Indemnification of Parent Indemnified Parties. (a) From and after the Effective Time (but Time, subject to Section 6.1 the limitations set forth in this Article X, Biomet, Merger Sub and the other applicable provisions of this Section 6), each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent and its officers, their respective directors, Affiliatesofficers, employees, agents agents, Affiliates (including for purposes of clarity, after the Closing, the Surviving Corporation and representativesits Subsidiaries), including the Company successor and assigns (each a “Parent Indemnified Party” and, collectively, the “Parent Indemnified Parties”)) shall be indemnified and held harmless, by recourse to the full amount of the Escrow Funds and, solely to the extent permitted below and subject to the limitations set forth below, by recourse to the Securities Holders to, from and against any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, causes of action, assessments, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties costs and expenses, expenses (including reasonable attorneys’ and consultants’ fees and expenses and including but excluding consequential, incidental or indirect damages, lost profits, diminution in value or punitive, special or exemplary damages and, in particular, no “diminution of value,” “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any such reasonable out-of-pocket expenses incurred in connection with investigatingLosses, defending against or settling any of except for punitive damages solely to the foregoing (collectively, “Damages”), incurred or sustained by the Parent Indemnified Parties, or any of them (including the Company), directly or indirectly, extent actually paid to an unrelated third party as a result of a final non-appealable judgment) (hereinafter, a “Loss” or the following: “Losses”), sustained or incurred by any Parent Indemnified Party, resulting from or arising out of (i) any breach or inaccuracy of a representation or warranty of made in Article III (other than the Company contained in Section 2 or in a certificate or other instrument executed and delivered by the Company pursuant to Special Representations) of this Agreement; , (ii) any failure breach of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed by it prior to the Closing; Special Representations, (iii) any inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive liability for Taxes pursuant to the terms Section 9.1(a) of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet; Agreement, (iv) any amount paid (including Closing Date Debt or any Company Transaction Expenses that are not taken into account in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 calculation of the DGCL in excess of the considerationMerger Consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its Affiliates prior amounts payable pursuant to the Closing NuVasive Settlement Agreement or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this AgreementCappuccino Agreements, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (Bvi) with respect to any Fundamental Matter, or (ii) Damages arising out exercise of fraud, any willful breach or intentional misrepresentation of or related to this Agreementthe appraisal rights described in Section 2.8, the Consideration Spreadsheet or other certificate or instrument delivered pursuant reasonable costs of responding to this Agreement, in which case and contesting a claim for appraisal rights and the maximum amount that payment of any Excess Dissenting Share Amount. The obligation of the Securities Holders to indemnify and hold the Parent Indemnified Parties may recover from each Escrow Participant for such Damages harmless hereunder shall be limited (A) joint and several with respect to an amount equal any recovery by the Parent Indemnified Parties of amounts from the Escrow Funds, and (B) several on a pro rata basis (as determined below) of any Losses with respect to any recovery by the amount Parent Indemnified Parties of amounts directly from the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow ParticipantHolders; provided, however, that such liability any claim for indemnification under the foregoing clause (B) shall first be determined sought from the holders of Common Stock, In-the-Money Common Warrants and the Carveout Plan Participants in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation their respective Pro Rata Share of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not applyLosses, and Parent and the other Parent Indemnified Parties shall not that a claim for indemnification may be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except sought from holders of Preferred Stock only to the extent that the amount of Losses exceeds the aggregate Merger Consideration paid to the holders of Common Stock, In-the-Money Common Warrants and the Carveout Plan Participants; and provided further that any claim for indemnification against holders of Preferred Stock shall be sought based on the relative priority of the series of Preferred Stock with respect to liquidation preferences (first Series A Preferred, then Series B Preferred, and then Series C Preferred), such that recovery may be sought from a more senior series only to the extent that the amount of Losses exceeds the amount of Merger Consideration paid to the Common Stock, In-the-Money Common Warrants and Carveout Plan Participants and to the holders of any junior series of Preferred Stock and pro rata among the holders of the respective series of Preferred Stock based on the aggregate amounts received by such holders in respect of such shares of such series of Preferred Stock. The Parent Indemnified Parties shall be required to first obtain payment of Losses from the Escrow Funds, and shall only be permitted to obtain payment of Losses from the Securities Holders once the Escrow Funds have been exhausted. (b) If any Parent Indemnified Party becomes entitled to any indemnification pursuant to Article IX or Section 10.2(a), the amount of Losses that such Parent Indemnified Party is entitled to recover pursuant to Article X or Section 10.2(a) shall be limited as follows: (i) no Losses shall be payable pursuant to Section 10.2(a)(i) until the total of all such Losses pursuant to Section 10.2(a)(i) exceeds 0.75% of the Purchase Price (the “Deductible”), and then only the amounts in excess of the Deductible shall be payable; (ii) the aggregate amount of such Damages against which all payments made in satisfaction of claims for indemnification with respect to Losses pursuant to Section 10.2(a)(i) shall not exceed $14,250,000; (iii) the Parent Indemnified Parties would otherwise shall only be entitled permitted to be indemnified exceeds $50,000. If the aggregate amount obtain payment of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject Losses pursuant to the other limitations set forth in this Agreement, be entitled to be indemnified Section 10.2(a)(v) from the Escrow Fund Funds; and (iv) in no circumstance shall any Securities Holder be liable for their Damages without regard more than his, her or its portion of the Merger Consideration actually received by such Securities Holder pursuant to such thresholdthis Agreement and the Escrow Agreement.

Indemnification of Parent Indemnified Parties. (a) From and after Following the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6)Time, each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify Indemnifying Stockholder shall indemnify, defend and hold harmless Parent Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and its officers, directors, Affiliates, employees, agents and representatives, including the Company Subsidiaries) and their respective Representatives, stockholders, successors and assigns (collectively, the “Parent Indemnified Parties”)) from and against, against and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, any and all claimsDamages based upon, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against arising from or settling related to any of the foregoing following (collectivelyregardless of whether or not such Damages relate to any third party claim) (each a “Parent Claim”): (a) any breach of any representation or warranty made by the Company or the Stockholder Representative in this Agreement or in any document, “Damages”certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement as of the date hereof or as of the Closing Date (except that those representations and warranties which address matters only as of a particular date shall remain true, complete and correct as of such date) (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term Material Adverse Effect (except where (w) Material Adverse Effect appears in Section 4.9, (x) material qualifies Contracts in the first sentence of Section 4.19(n), incurred (y) material qualifies third party Intellectual Property or sustained by services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the Parent Indemnified Parties, or any first sentence of them (including the CompanySection 4.21(a), directly or indirectly, as a result of the following:) were deleted therefrom); (ib) any breach or inaccuracy non-fulfillment of a representation any covenant or warranty of the Company contained agreement in Section 2 this Agreement or in a any document, certificate or other instrument executed and required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement; (ii) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement that was to be performed by it (i) the Company prior to the ClosingEffective Time or (ii) the Stockholder Representative; (iiic) any inaccuracy or omission amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the sections calculation of Closing Total Equity Consideration in the Consideration Spreadsheet corresponding to Sections 1.3(c)Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant except to the terms extent that such Excess Closing Company Debt has been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (e) any fraud, willful misrepresentation or intentional breach of this Agreement by the Company or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration SpreadsheetStockholder Representative; (ivf) any amount paid (including in by Parent, the form of shares of Parent Common Stock, based on Company or the Parent Common Stock Price Per Share) in Surviving Corporation to any Company Stockholder with respect of to Dissenting Shares pursuant to Section 262 of the DGCL in excess of the considerationvalue such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, if anyand all interest, costs, expenses and fees incurred by the Company, Parent or the Surviving Corporation in connection with the exercise of all dissenters’ rights under the DGCL; (g) any amounts that a Company Securityholder is entitled to which receive in connection with the holder thereof would otherwise have been Merger pursuant to the Company Organizational Documents, the Warrants, any written or oral agreement with the Company or any other Legal Requirements in excess of the amount indicated on the Final Securityholder Schedule as the amount such Company Securityholder is entitled to receive in connection with the Merger or due to any inaccuracy therein; (h) any (i) Taxes of the Company or any Company Subsidiary with respect to such Dissenting Shares any Tax periods ending on or prior to the Closing Date and for the portion of any Straddle Period ending at the close of business on the Closing Date (determined as provided in Section 16.1) other than (A) as a result of any actions taken or elections made by Parent, the Surviving Corporation or their respective Affiliates on the Closing Date, following the Closing, that are outside of the ordinary course of business, or (B) any Vested Option Employer Tax Obligation (ii) Transfer Taxes for which the Company Stockholders are responsible pursuant to Section 16.2, (iii) Tax of any predecessor entity of the Company or any Company Subsidiary, (iv) payment of any Tax under this Agreement; and Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Tax Law) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period beginning on or prior to the Closing Date (including any arrangement for group or consortium Tax relief or similar arrangement), (v) payment of any Tax with reference to the Tax liability of another Person in each case as a result of any obligation to indemnify any other Person or as a result of any obligation under any agreement or arrangement entered into on or prior to the Closing Date, (Avi) any fraud committed Taxes imposed on Parent, Merger Sub, the Company or the Surviving Corporation resulting from the Merger to the extent not withheld pursuant to Section 3.7(e) and (vii) amounts due in respect of all Reports of Foreign Bank and Financial Accounts (TD F 90-22.1), Foreign Bank Account Reports FinCEN 114, similar reports, and successor forms or reports to any of the foregoing (each an “FBAR Report”) required to be filed by the Company or any of its Affiliates prior to Company Subsidiary for any period beginning on or before the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this AgreementDate, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fundincluding, in which the case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect each of (i) Damages through (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (whichvii), for the avoidance of doubt, shall include all Damages associated with the Note Consideration)investigation, which amount shall exclude review, remediation and resolution of any Escrowed Securities until actually disbursed to such Escrow Participant; providedof the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, howeverin their capacities as Company Securityholders, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraudthe authorization, willful breach or intentional misrepresentation of such Escrow Participant in respect execution and delivery of this Agreement, the Consideration Spreadsheet performance by the Company of its obligations hereunder or other certificate or instrument delivered pursuant to this Agreement.the consummation of the transactions contemplated hereby); and (cj) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement claim by a Company Securityholder with respect to Damages under Section 6.2(a)(i)the actions or omissions of the Stockholder Representative, except to including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth Stockholder Representative in this Agreement, be entitled to be indemnified from Agreement or in the Escrow Fund for their Damages without regard to such thresholdAgreement.

Indemnification of Parent Indemnified Parties. Each Equityholder shall severally and not jointly (in proportion to the number of Fully Diluted Shares held by each Equityholder immediately prior to the Effective Time) indemnify, defend and hold harmless the Parent Indemnified Parties from, against and in respect of, and to pay the Parent Indemnified Parties the amount of, any and all Damages that are directly or indirectly suffered or incurred by any of the Parent Indemnified Parties or to which any of the Parent Indemnified Parties may otherwise become directly or indirectly subject (regardless of whether or not such Damages relate to any Third-Party Claim), and that arise from or as a result of, or are directly or indirectly connected with any of the following (each a “Parent Claim”): (a) From and after the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6), each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent and its officers, directors, Affiliates, employees, agents and representatives, including the Company (the “Parent Indemnified Parties”), against any and all claims, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against misrepresentation or settling any of the foregoing (collectively, “Damages”), incurred or sustained by the Parent Indemnified Parties, or any of them (including the Company), directly or indirectly, as a result of the following: (i) any breach or inaccuracy failure of a any representation or warranty of made by the Company contained or the Equityholders’ Representative in Section 2 this Agreement, any Ancillary Document, or in a any other certificate or other instrument executed and delivered in connection with the Transactions by the Company pursuant or the Equityholders’ Representative to be true and correct in all respects as of the date hereof and as of the Closing, without giving effect to any materiality, Material Adverse Effect, or other similar limitations or qualifications (for purposes of this Agreement, each statement or other item of information set forth in the applicable Company Disclosure Schedule (without giving effect to any supplements or updates thereto made after the date hereof) shall be deemed to be a representation and warranty made by the Company in this Agreement); (b) any breach or non-fulfillment of any covenant or agreement made or to be performed by the Equityholders, the Company or the Equityholders’ Representative in this Agreement, any Ancillary Document, or in any other agreement or instrument entered into in connection with this Agreement; (iic) any amounts that an Equityholder is entitled to receive in connection with the Merger pursuant to this Agreement (other than pursuant to Section 2.07 or 2.08), the Organizational Documents, a written or oral agreement with the Company, or any other applicable Law that is in excess of the amount indicated on the updated Transaction Schedule delivered to Parent prior to the Closing as the amount such Equityholder is entitled to receive in connection with the Merger; (d) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement Transaction Schedule to be performed true and correct in all respects; (e) the operation of Colorescience at any time prior to or after the Effective Time, the ownership of Colorescience by it the Company prior to the ClosingEffective Time, or the consummation of the Spin Out; (iiif) (i) any inaccuracy or omission in the sections unpaid Taxes of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet; (iv) any amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its Affiliates prior Subsidiaries with respect to any Pre-Closing Tax Period, (ii) the Closing unpaid Taxes of any Person (other than the Company or any of its Subsidiaries) for which the Company or any of its Affiliates has Knowledge Subsidiaries is liable, pursuant to an arrangement or agreement entered into on or prior to the Closing and Date, under Treasury Regulations Section 1.1502-6 (Bor any similar provision of state, local or foreign Law), as a transferee or successor by Contract or otherwise, but excluding any Tax Sharing Agreements (iii) any willful breach or intentional misrepresentation unpaid Taxes of or related to this Agreementthe Company, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to Subsidiaries, or the Closing or of Equityholders resulting from the Transactions, including any Transfer Taxes for which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim Equityholders are responsible pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter7.07, or (iiiv) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount unpaid Taxes of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for resulting from the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow ParticipantSpin Out; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement.or (cg) Without limiting any of the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(imatters described on Schedule 9.02(g), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without regard to such threshold.

Indemnification of Parent Indemnified Parties. (a) From Subject to the terms of this Article 8, from and after the Effective Time (but subject Closing, the Escrow Fund and, solely in the case of claims pursuant to Section 6.1 and the other applicable provisions of this Section 68.1(a)(7), each the 280G Escrow Participant agrees to severally Fund shall be made available (in accordance with its Participation Percentagethe terms of this Article 8 and the Escrow Agreement) and not jointly to indemnify and hold harmless Parent and its Affiliates (including, after the Closing, the Surviving Corporation) and each of their respective officers, directors, Affiliatesshareholders, managers, members, employees, agents and agents, representatives, including the Company successors and permitted assigns (the each such Person, a “Parent Indemnified PartiesParty”), ) harmless against and in respect of any and all claimsDamages, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any which such reasonable out-of-pocket expenses incurred in connection with investigating, defending against or settling any of the foregoing (collectively, “Damages”)Parent Indemnified Party has suffered, incurred or sustained by the Parent Indemnified Partiesbecome subject to arising out of, relating to, based upon or any of them (including the Company), directly or indirectly, as a result of the followingotherwise in respect of: (i1) any breach or inaccuracy of a any representation or warranty of the Company contained in Section 2 or in a certificate or other instrument executed and delivered made by the Company in Article 2 of this Agreement or in any certificate delivered at Closing pursuant to this Agreement; (ii2) any failure breach of or nonfulfillment of any covenant or obligation of the Company under this Agreement; (3) any amount by which the actual Third Party Expenses exceeds the Third Party Expenses set forth in the certificate described in Section 1.2(a)(5); (4) any amount by which the actual Company Indebtedness exceeds the Company Indebtedness set forth in the certificate described in Section 1.2(a)(5); (5) all Liabilities of any kind related to perform PCOA, including the PCOA Transaction; (6) all Liabilities of any kind related to any pre-Closing Action set forth in Section 2.7 of the Disclosure Schedule or comply with any covenant that should have been set forth in Section 2.7 of the Disclosure Schedule or agreement applicable to it contained in that arose between the date of this Agreement and the Closing and would have been required to be performed by set forth in Section 2.7 of the Disclosure Schedule had it arisen prior to the date hereof, in each case, to the extent such Liabilities arising in connection with each pre-Closing Action exceed on a per claim basis in the aggregate the sum of (i) amounts actually recovered with respect to such pre-Closing Action under the Company’s applicable insurance policies and (ii) applicable self-insured retention or deductible amounts under such policies with respect to such pre-Closing Action not previously retained or paid prior to the Closing; (iii7) all or any inaccuracy or omission portion of any Covered Payment constituting an “excess parachute payment” (as such term is defined in the sections Section 280G(b)(1) of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(fCode), including the loss of any amounts set forth therein that are paid to a Person deduction in excess respect of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheetpayments; (iv) 8) any amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this AgreementShare Payment; and (v9) fifty percent (A50%) of any fraud committed amounts paid by the Company or any of its Affiliates prior Parent to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered Escrow Agent pursuant to this Section 3.1 of the Escrow Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be Except to the Escrow Fund, extent otherwise provided in which case Parent Section 4.10 and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closingthis Section 8.1(b), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the sole source for payment of any and all Damages payable in connection with the indemnification provided to the Parent Indemnified Parties under this Article 8 (excluding for Damages payable pursuant to Section 8.1(a)(7)), and the Representative and Shareholders shall have no liability for any claims for indemnification asserted by the Parent Indemnified Parties hereunder. Damages payable pursuant to Section 8.1(a)(7) will be paid (1) first recoursefrom the 280G Escrow Fund, but not the exclusive remedy and (2) second, to the extent the 280G Escrow Fund is insufficientnot sufficient to satisfy such indemnification obligations, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, from the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000Fund. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified Each payment from the Escrow Fund for or the 280G Escrow Fund, as applicable, made pursuant to this Article 8 shall reduce, on a pro rata basis (based on their Damages without regard respective Pro Rata Portions) the additional consideration to such thresholdbe received by each Shareholder under the terms of the Escrow Agreement. Each Parent Indemnified Party’s right to seek indemnification pursuant to this Article 8 shall be subject to the last sentence of Section 4.10 to the extent applicable to the indemnification claim at issue.

Indemnification of Parent Indemnified Parties. Subject to the other provisions of this Article V and the terms and conditions of the Escrow Agreement, from and after the Closing, each Parent Indemnified Party shall be indemnified solely, subject to Section 5.3, from the Indemnity Escrow Fund, with respect to all other claims, in each case for any and all Damages suffered or incurred by such Parent Indemnified Party arising out of or relating to: (a) From any breach by the Company or any Seller of, or failure by the Company or any Seller to perform, any of their respective covenants or other agreements set forth in this Agreement; (b) any breach of or inaccuracy in any warranty or representation of the Company or any Seller contained in this Agreement, notwithstanding the fact that a Parent Indemnified Party had knowledge of the breach, event or circumstance giving rise to the Damages or waived any closing condition relating thereto and, except with respect to the representation and after the Effective Time (but subject to warranty contained in Section 6.1 and the other applicable provisions of this Section 64.1(s)(iii), each Escrow Participant agrees without regard to severally any qualification or exception contained therein relating to materiality or Company Material Averse Effect; (c) Company Transaction Expenses (to the extent such expenses were not deducted from the Total Consideration in accordance with its Participation PercentageSection 2.5(c) or Section 9.14) and not jointly indemnify and hold harmless Parent Incremental Employment Taxes; and (d) without duplication of any amounts described in Section 5.2(a) or 5.2(b), all Taxes of the Company and its officersSubsidiaries relating or apportioned to any Pre-Closing Tax Period, directorsbut in the case of Non-Income Taxes, Affiliatesonly to the extent such Non-Income Taxes exceed the Company’s liability for current Non-Income Taxes payable as of the Closing Date, employeesdetermined in accordance with the same principles used in preparing the Balance Sheet; provided, agents however, that, with respect to indemnification for breaches or inaccuracies of representations and representativeswarranties pursuant to Section 5.2(b), including or with respect to any breach or failure to comply with the Company covenants or agreement contained in Section 6.1, a Parent Indemnified Party shall be indemnified only in the event that the aggregate amount (without duplication) of Damages suffered or incurred by all Parent Indemnified Parties with respect to all such matters, in the aggregate, exceeds $500,000 (the “Basket”) (with no individual claim aggregating to the Basket if the Damages suffered or incurred with respect to such claim are less than $5,000) and then only to the extent of such excess, other than the following items for which any Parent Indemnified Parties”)Party shall be indemnified from the first dollar: all Damages sustained, against any and all claims, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against or settling any of the foregoing (collectively, “Damages”), incurred or sustained by the Parent Indemnified Partiesincurred, or any of them (including the Company), directly or indirectly, accrued as a result of the following: (i) or arising out of any breach or inaccuracy of a representation or warranty the Specified Representations. Any payment to be paid out of the Company contained in Section 2 or in a certificate or other instrument executed and delivered by the Company Indemnity Escrow Fund pursuant to this Agreement; (ii) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to Section 5.2 shall be performed by it prior to the Closing; (iii) any inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive made pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections and conditions of the Consideration Spreadsheet; (iv) Escrow Agreement and Article II. The Common Holders and Option Holders shall not have any amount paid (including in right of contribution from the form of shares of Surviving Corporation or Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its their Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the claimed by a Parent Indemnified Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this AgreementParty. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without regard to such threshold.

Indemnification of Parent Indemnified Parties. (a) From Subject to the overall limitations and after the Effective Time (but subject to time limitations set forth in Section 6.1 and the other applicable provisions of this Section 6)10.5 below, each Escrow Participant Interest Holder agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent and its the Company and their respective officers, directors, Affiliates, employees, agents consultants, stockholders and representativesaffiliates (which after the Closing shall include the Company) (collectively, including the Company (the “"Parent Indemnified Parties”), ") from and against any and all claimsdamages, losses, claims, liabilities, damagesdemands, Taxescharges, costssuits, interestpenalties, awards, judgments, penalties costs and expenses, expenses (including reasonable court costs and attorneys’ and consultants’ ' fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against investigating and preparing for any litigation or settling any of the foregoing proceeding) (collectively, “"Damages”), incurred or sustained by the Parent Indemnified Parties, or ") which any of them (including the Company), directly or indirectly, as a result of the following: (i) any breach or inaccuracy of a representation or warranty of the Company contained in Section 2 or in a certificate or other instrument executed and delivered by the Company pursuant to this Agreement; (ii) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed by it prior to the Closing; (iii) any inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet; (iv) any amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and (v) (A) any fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing. (b) The Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified Parties may recover from each Escrow Participant for sustain, or to which any of Parent Indemnified Parties may be subjected, relating to or arising directly or indirectly out of any breach or default by the Company or the Interest Holder of any of their representations or warranties contained in Article V or VI hereof (determined without regard to any qualifications as to materiality in such representations or warranties) or any covenants or agreements under this Agreement. Any Damages shall be limited which any Parent Indemnified Party sustains, or to an amount equal to the amount which any of the consideration received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising out of fraudbe subjected, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration Spreadsheet or other certificate or instrument delivered pursuant are referred to this Agreement. (c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(a)(i) shall not apply, and Parent and the other herein as "Parent Indemnified Parties shall not be entitled to exercise any indemnification rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without regard to such thresholdCosts".