Common use of Indemnification of Parent Indemnified Parties Clause in Contracts

Indemnification of Parent Indemnified Parties. Following the Effective Time, each Indemnifying Stockholder shall indemnify, defend and hold harmless Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and the Company Subsidiaries) and their respective Representatives, stockholders, successors and assigns (collectively, the “Parent Indemnified Parties”) from and against, and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, any and all Damages based upon, arising from or related to any of the following (regardless 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, 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), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 receive in connection with the 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 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 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, (vi) any 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 Company Subsidiary for any period beginning on or before the Closing Date, including, in the case of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow Agreement.

Indemnification of Parent Indemnified Parties. Following (a) From and after the Effective Time, each Indemnifying Stockholder shall indemnifysubject to the limitations set forth in this Article X, defend and hold harmless ParentBiomet, Merger Sub, Sub and Parent and their respective directors, officers, employees, agents, Affiliates (includingincluding for purposes of clarity, following after the Effective TimeClosing, the Surviving Corporation and the Company its Subsidiaries) and their respective Representatives), stockholders, successors 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 againstagainst any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, causes of action, assessments, losses, costs and expenses (including reasonable attorneys’ fees 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 Losses, except for punitive damages solely to the extent actually paid to an unrelated third party as a result of a final non-appealable judgment) (hereinafter, a “Loss” or the “Losses”), sustained or incurred by any Parent Indemnified Party, resulting from or arising out of (i) any breach of a representation or warranty made in Article III (other than the Company Special Representations) of this Agreement, (ii) any breach of the Company Special Representations, (iii) any liability for Taxes pursuant to Section 9.1(a) of this Agreement, (iv) any Closing Date Debt or any Company Transaction Expenses that are not taken into account in the calculation of the Merger Consideration, (v) any amounts payable pursuant to the NuVasive Settlement Agreement or the Cappuccino Agreements, or (vi) with respect to any exercise of the appraisal rights described in Section 2.8, the reasonable costs of responding to and contesting a claim for appraisal rights and the payment of any Excess Dissenting Share Amount. The obligation of the Securities Holders to indemnify and hold the Parent Indemnified Parties harmless hereunder shall be (A) joint and several with respect to 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 Parent Indemnified Parties of amounts directly from the Securities Holders; provided, however, that any claim for indemnification under the foregoing clause (B) shall first be sought from the holders of Common Stock, In-the-Money Common Warrants and the Carveout Plan Participants in accordance with their respective Pro Rata Share of such Losses, and that a claim for indemnification may be 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 compensated and reimbursed for, any and limited as follows: (i) no Losses shall be payable pursuant to Section 10.2(a)(i) until the total of all Damages based upon, arising from or related such Losses pursuant to any Section 10.2(a)(i) exceeds 0.75% of the following Purchase Price (regardless the “Deductible”), and then only the amounts in excess of whether or not such Damages relate to any third party claim) (each a “Parent Claim”):the Deductible shall be payable; (aii) the aggregate amount of 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 shall only be permitted to obtain payment of Losses pursuant to Section 10.2(a)(v) from the Escrow Funds; and (iv) in no circumstance shall any breach Securities Holder be liable for more than his, her or its portion of any representation or warranty made the Merger Consideration actually received by the Company or the Stockholder Representative in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative such Securities Holder 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), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 receive in connection with the 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 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 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, (vi) any 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 Company Subsidiary for any period beginning on or before the Closing Date, including, in the case of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow Agreement.

Indemnification of Parent Indemnified Parties. Following After the Effective Time, each Indemnifying Stockholder shall indemnify, defend Parent and hold harmless Parent, Merger Sub, their respective its Affiliates (including, following after the Effective Time, the Surviving Corporation and the Company Subsidiaries) and their respective RepresentativesCorporation), stockholdersofficers, directors, employees, agents, successors and assigns (collectively, the “"Parent Indemnified Parties”) from and against", and such Parent Indemnified Parties shall be entitled to be compensated indemnified and reimbursed for, held harmless for any and all Damages based uponliabilities, losses, damages, claims, incidental damages, interest, awards, judgments and penalties (including reasonable attorneys' and consultants' fees and expenses) actually suffered or incurred by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (hereinafter, a "Loss" and collectively, "Losses"), arising out of or resulting from or related to any of the following (regardless of whether or not such Damages relate to any third party claim) (each a “Parent Claim”without duplication): (ai) excluding any matters related to Taxes, the breach of any representation or warranty made by the Company or the Stockholder Representative in this Agreement (provided that in calculating the amount of any Loss, as opposed to whether there has been a breach, such Loss shall be calculated without regard to qualifications as to "materiality" including the word "material" or in Material Adverse Effect) and any document, other certificate or other instrument required to be delivered by GFI and 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), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom)Agreement; (bii) any the breach or non-fulfillment of any covenant or agreement made by GFI, the Representative and the Company in this Agreement or in and any document, other certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was Agreement, which, in the case of the Company, is to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 receive in connection with the 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 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 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; (iii) the payment by Parent, the Surviving Corporation, any Subsidiary or any Affiliate thereof of any Excluded Taxes; (iv) any action by any Stockholder in respect of any Dissenting Shares, but only to the extent Losses in respect thereof exceed the Per Share Merger Consideration otherwise payable in respect of such Dissenting Shares; (v) any Closing Expenses to the extent such Closing Expenses were not (A) deducted from the Merger Consideration, (B) paid or (C) reflected as liabilities in the calculation of Working Capital; or (vi) any Taxes imposed on Parent, the inaccuracy of the Per Share Merger Sub, the Company or the Surviving Corporation resulting from the Merger Consideration Certificate 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 Company Subsidiary for any period beginning on or before the Closing Date, including, it results in the case payment of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, excess Merger Consideration. Recovery under this indemnity shall be solely as provided in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow AgreementSection 9.04.

Indemnification of Parent Indemnified Parties. Following Subject to this Section 6.3, from and after the Effective TimeClosing Date, Parent, Federal, Purchaser, each Indemnifying Stockholder shall indemnify, defend and hold harmless Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and the Company Subsidiaries) Affiliate of Parent and their respective Representativesdirectors, stockholdersofficers, successors employees, Affiliates, representatives, successor and assigns (collectively, the collectively “Parent Indemnified Parties”) shall be entitled to payment and reimbursement from the Company and againstStockholders, jointly and severally (collectively the “Parent Indemnifying Parties”) of the amount of Losses suffered, incurred or paid by any Parent Indemnified Party, by reason of or otherwise arising from (a) any breach by the Company, any Stockholder or Voting Trustee of any covenant, agreement or obligation in this Agreement (whether to be performed before, on or after the Closing Date), (b) in respect of any Excluded Liabilities, (c) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by the Company, any Stockholder or Voting Trustee in Article 3 or any Exhibits or the certificates or other Closing documents delivered pursuant Section 7.2, or (d) any one or more Covered Matters. Notwithstanding anything herein to the contrary, if there is a misrepresentation or inaccuracy in, or a breach of, a representation or warrant in Article 3 or in a certificate given pursuant to Section 7.2.1 which has a Materiality Qualification (which breach shall be determined giving effect to such Materiality Qualification), the Parent Indemnified Parties shall be entitled to be compensated and reimbursed forindemnification for all Losses suffered, incurred or paid by any and all Damages based upon, Parent Indemnified Party by reason of or otherwise arising from such aforesaid misrepresentation, inaccuracy or related to any of breach, with such indemnifiable Losses determined as if the following (regardless of whether Materiality Qualification were deleted from the one or not such Damages relate to any third party claim) (each a “Parent Claim”): (a) any breach of any representation more respective misrepresented, inaccurate or warranty made by the Company or the Stockholder Representative in this Agreement or in any document, 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 breached representations and warranties which address matters only as of a particular date shall remain true, complete subject to Section 6.3.5.2 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 other applicable terms and conditions of Section 4.19(n), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 receive in connection with the 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 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 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, (vi) any 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 Company Subsidiary for any period beginning on or before the Closing Date, including, in the case of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow Agreement6.3.

Indemnification of Parent Indemnified Parties. Following 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, each Indemnifying Stockholder shall ) indemnify, defend and hold harmless Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and the Company Subsidiaries) and their respective Representatives, stockholders, successors and assigns (collectively, the “Parent Indemnified Parties”) from and against, and such Parent Indemnified Parties shall be entitled from, against and in respect of, and to be compensated and reimbursed forpay the Parent Indemnified Parties the amount of, any and all Damages based upon, arising from that are directly or related to indirectly suffered or incurred by any of the following 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) 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) any misrepresentation or breach or failure of any representation or warranty made by the Company or the Stockholder Equityholders’ Representative in this Agreement Agreement, any Ancillary Document, or in any document, other certificate or other instrument required to be delivered executed in connection with the Transactions by the Company or the Stockholder Equityholders’ Representative pursuant to this Agreement be true and correct in all respects as of the date hereof or and as of the Closing Date (except that those representations and warranties which address matters only as of a particular date shall remain trueClosing, complete and correct as of such date) (in each case, as such representation or warranty would read if all qualifications as without giving effect to any materiality, including each reference to the defined term Material Adverse Effect Effect, or other similar limitations or qualifications (except where (w) Material Adverse Effect appears in Section 4.9for purposes of this Agreement, (x) material qualifies Contracts each statement or other item of information set forth in the first sentence of Section 4.19(n), applicable Company Disclosure Schedule (ywithout giving effect to any supplements or updates thereto made after the date hereof) material qualifies third party Intellectual Property or services shall be deemed to be a representation and warranty made by the Company in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefromthis Agreement); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement made or in any document, certificate or other instrument required to be delivered performed by the Equityholders, the Company or the Stockholder Equityholders’ Representative pursuant to in this Agreement that was to be performed by (i) the Company prior to the Effective Time Agreement, any Ancillary Document, or (ii) the Stockholder Representativein any other agreement or instrument entered into in connection with this Agreement; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 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 Company Organizational Documents, the Warrants, any a written or oral agreement with the Company Company, or any other Legal Requirements applicable Law that is in excess of the amount indicated on the Final Securityholder updated Transaction Schedule delivered to Parent prior to the Closing as the amount such Company Securityholder Equityholder is entitled to receive in connection with the Merger or due to any inaccuracy thereinMerger; (hd) any failure of the Transaction Schedule to be 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 the Company prior to the Effective Time, or the consummation of the Spin Out; (f) (i) any unpaid Taxes of the Company or any Company Subsidiary of its Subsidiaries with respect to any Pre-Closing Tax periods ending Period, (ii) the unpaid Taxes of any Person (other than the Company or any of its Subsidiaries) for which the Company or any of its Subsidiaries is liable, pursuant to an arrangement or agreement entered into 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 Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Tax foreign Law) ), as a result of being a member of an affiliatedtransferee or successor by Contract or otherwise, 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 but excluding 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, Sharing Agreements (viiii) any unpaid Taxes imposed on Parentof the Company, Merger Subany of its Subsidiaries, the Company or the Surviving Corporation Equityholders resulting from the Merger to Transactions, including any Transfer Taxes for which the extent not withheld Equityholders are responsible pursuant to Section 3.7(e7.07, or (iv) and any unpaid Taxes of the Company resulting from the Spin Out; or (viig) 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 Company Subsidiary for any period beginning matters described on or before the Closing Date, including, in the case of each of (i) through (viiSchedule 9.02(g), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow Agreement.

Indemnification of Parent Indemnified Parties. Following (a) From and after the Effective TimeTime (but subject to Section 6.1 and the other applicable provisions of this Section 6), each Indemnifying Stockholder shall indemnify, defend Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless ParentParent and its officers, Merger Subdirectors, their respective Affiliates (includingAffiliates, following the Effective Timeemployees, the Surviving Corporation agents and representatives, including the Company Subsidiaries) and their respective Representatives, stockholders, successors and assigns (collectively, the “Parent Indemnified Parties”) from and against), and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, against any and all Damages based uponclaims, arising from 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 related to settling any of the following foregoing (regardless collectively, “Damages”), incurred or sustained by the Parent Indemnified Parties, or any of whether them (including the Company), directly or not such Damages relate to any third party claim) (each indirectly, as a “Parent Claim”):result of the following: (ai) any breach or inaccuracy of any a representation or warranty made by of the Company or the Stockholder Representative contained in this Agreement Section 2 or in any document, a certificate or other instrument required to be executed and 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), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom)Agreement; (bii) any breach failure of the Company to perform or non-fulfillment of comply with any covenant or agreement applicable to it contained in this Agreement or in any document, certificate or other instrument required to be delivered performed by it prior to the Company Closing; (iii) any inaccuracy or omission in the Stockholder Representative 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 to be performed by (i) omitted from such sections of the Company prior to the Effective Time or (ii) the Stockholder RepresentativeConsideration Spreadsheet; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (fiv) any amount paid by Parent(including in the form of shares of Parent Common Stock, based on the Company or the Surviving Corporation to any Company Stockholder with Parent Common Stock Price Per Share) in respect to of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the value such Person consideration, if any, to which the holder thereof would otherwise have received in the Merger for been entitled with respect to such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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;this Agreement; and (gv) any amounts that a Company Securityholder is entitled to receive in connection with the 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 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 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, (vi) any 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 fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company Subsidiary 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 period beginning on or before claim pursuant to Section 6 shall be to the Closing Date, includingEscrow Fund, in which case Parent and the case Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of each 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 (vii)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, all 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 associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorizationfraud, execution and delivery willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the performance by the Company of its obligations hereunder Consideration Spreadsheet or the consummation of the transactions contemplated hereby); andother certificate or instrument delivered pursuant to this Agreement. (jc) Without limiting the effect of any claim by a Company Securityholder 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 actions or omissions extent that the aggregate amount of such Damages against which the Stockholder RepresentativeParent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If the aggregate amount of such Damages exceeds such threshold, including any claim for fraud or misrepresentationthen Parent and the other Parent Indemnified Parties shall, breach or non-fulfillment of any representation, warranty, covenant or agreement made by subject to the Stockholder Representative other limitations set forth in this Agreement or in Agreement, be entitled to be indemnified from the Escrow AgreementFund for their Damages without regard to such threshold.

Indemnification of Parent Indemnified Parties. Following (a) From and after the Effective TimeClosing, each Indemnifying Stockholder shall indemnifysubject to the limitations set forth in this Article IX, defend Parent and hold harmless Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and the Company Subsidiaries) Sub and their respective Representativesdirectors, stockholdersofficers, successors employees, agents, Affiliates, successor and assigns (each a “Parent Indemnified Party” and, collectively, the “Parent Indemnified Parties”) shall be indemnified and held harmless by, on a joint and several basis, the Shareholders from and against, any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs and expenses (including reasonable attorneys’ fees) (hereinafter, a “Loss” or the “Losses”), sustained or incurred by any Parent Indemnified Party, resulting from: (i) any breach of a representation or warranty made by the Company in Article III of this Agreement or in any of the other Transaction Documents; (ii) any breach of a covenant made by the Company in this Agreement or any of the Transaction Documents; (iii) any Taxes of the Company or its Subsidiaries for which the Shareholders are liable pursuant to the provisions of Section 8.1; (iv) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the Company or any Subsidiary (or any Person acting on their behalf) in connection with any of the transactions contemplated by this Agreement; (v) any Company Transaction Expenses or Repaid Indebtedness that were not accounted for in the calculation of the payments made by Parent pursuant to Section 2.9; (vi) any error in the calculation of each Shareholder’s Pro Rata Percentage; (vii) any claim by any officer, manager or director of the Company or any of its Subsidiaries for indemnification, contribution, reimbursement or other remedy against the Company or any of its Subsidiaries arising out of or pertaining to matters existing or occurring at or prior to Closing; or (viii) any claim by any Shareholder arising out of the transactions contemplated by this Agreement other than claims against Parent for breach of this Agreement. (b) If any Parent Indemnified Party becomes potentially entitled to any indemnification pursuant to Section 9.2(a), the amount that such Parent Indemnified Party is entitled to recover in connection therewith shall nevertheless be limited as follows: (i) first, no Losses pursuant to Section 9.2(a)(i) shall be payable until the total of all such Losses exceeds $85,000 (the “Deductible”), and then only for the amount by which such claims for such Losses exceed the Deductible shall be paid; and (ii) second, the aggregate amount of Losses pursuant to Section 9.2(a)(i) which the Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, any and all Damages based upon, arising from or related to any of the following (regardless 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, certificate or other instrument required to be delivered by the Company or the Stockholder Representative recover pursuant to this Agreement as of shall be limited to $3,400,000 (the date hereof or as of “Cap”); provided, however, that neither the Closing Date (except that those representations and warranties which address matters only as of a particular date Deductible nor the Cap shall remain true, complete and correct as of such date) (in each case, as such representation or warranty would read if all qualifications as apply 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), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except Losses to the extent that such Company Transaction Expenses have been included Losses arise from (i) the breach of any Fundamental Representation or any of the representations and warranties set forth in Sections 3.7 (Taxes) or 3.18 (Employee Benefit Plans); (ii) the calculation breach of Closing Total Equity any of the covenants set forth in Section 8.1 (Tax Matters); or (iii) fraud or criminal or willful misconduct. (iii) In no event shall any Shareholder’s aggregate liability for claims for indemnification of Losses exceed the aggregate of that portion of the Merger Consideration actually received by such Shareholder; provided, however, that the foregoing limitation shall not apply to claims against a Shareholder based on such Shareholder’s own fraud or criminal or willful misconduct. (c) Claims made by the Parent Indemnified Persons for indemnification under this Article IX shall be satisfied, first, from the Parent Common Shares then held pursuant to the Holdback Agreement and, then, directly from the Shareholders by wire transfer of immediately available funds to such bank account(s) as shall be designated in the Final Securityholder Schedule;writing by Parent. (d) any amount of Excess Closing Company Debt, except Parent and the Shareholder Representative shall cause the Escrow Agent to release to the extent that such Excess Closing Company Debt has been included Shareholders (in the calculation of Closing Total Equity Consideration accordance with their Pro Rata Percentages and to be disbursed in the Final Securityholder Schedule; (e) any fraud, willful misrepresentation or intentional breach of this Agreement by the Company or the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and all interest, costs, expenses and fees incurred by the Company, Parent or the Surviving Corporation in connection accordance with the exercise of all dissenters’ rights under the DGCL; (gHoldback Agreement) any amounts that a Company Securityholder is entitled to receive in connection with the 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 any Tax periods ending on or prior to promptly after the Closing Date and for the portion of any Straddle Period ending at the close of business on the Closing Date day that is twelve (determined as provided in Section 16.112) other than (A) as a result of any actions taken or elections made by Parent, the Surviving Corporation or their respective Affiliates on months after the Closing Date, following that number of Parent Company Shares or cash, as applicable, with an aggregate value equal to the ClosingHoldback Amount less the sum of (1) that number of Parent Common Shares and cash with an aggregate value equal to any then pending claims for indemnification under this Article IX that have been properly asserted by the Parent Indemnified Persons, that are outside (2) the Parent Common Shares, if any, previously released to Parent as payment for claims for indemnification under this Article IX, and (3) the Parent Common Shares, if any, released to Parent as payment for the Closing Net Assets Deficit in accordance with Section 2.10(f)(i) hereof. Any unreleased Parent Common Shares and cash shall be retained by the Escrow Agent in accordance with the terms 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 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, (vi) any 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 Company Subsidiary for any period beginning on or before the Closing Date, including, in the case of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative in this Agreement or in the Escrow Holdback Agreement.]

Indemnification of Parent Indemnified Parties. Following (a) After the Effective Time, each Indemnifying Stockholder shall indemnifyand subject to the provisions of this Article IX and the Escrow Agreement, defend and hold harmless Parent, Merger Sub, their respective Affiliates (including, following the Effective Time, the Surviving Corporation and the Company Subsidiaries) its and their respective Representativesofficers, stockholdersdirectors, successors employees and assigns shareholders (collectively, the “Parent Indemnified Parties”) shall be indemnified and held harmless solely from the Indemnification Escrow Amount from and against, and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, against any and all Damages based uponLiabilities, losses, damages, costs, interest, awards, judgments, penalties and expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or incurred by them (including, without limitation, in connection with any Third-Party Claim) (hereinafter, a “Loss” and collectively, “Losses”), arising out of, relating to or resulting from or related to any of the following (regardless of whether or not such Damages relate to any third party claim) (each a “Parent Claim”without duplication): (ai) any the breach of or inaccuracy in any representation or warranty made by the Company (without giving effect to any limitation as to “materiality” or the Stockholder Representative “Company Material Adverse Effect” and words of similar import set forth therein) in this Agreement or in any document, certificate or (other instrument required to be delivered by than 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 set forth in Section 4.9, (x) material qualifies Contracts in the first sentence of Section 4.19(n), (y) material qualifies third party Intellectual Property or services in Section 4.19(x) and (z) material qualifies Company Plans, terms and Company Plan in the first sentence of Section 4.21(a)) were deleted therefrom4.12); (b) any breach or non-fulfillment of any covenant or agreement in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Stockholder Representative pursuant to this Agreement that was to be performed by (i) the Company prior to the Effective Time or (ii) the Stockholder Representative; (c) any amount of Company Transaction Expenses, except to the extent that such Company Transaction Expenses have been included in the calculation of Closing Total Equity Consideration in the Final Securityholder Schedule; (d) any amount of Excess Closing Company Debt, except to the 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 the Stockholder Representative; (f) any amount paid by Parent, the Company or the Surviving Corporation to any Company Stockholder with respect to Dissenting Shares pursuant to the DGCL in excess of the value such Person would have received in the Merger for such Dissenting Shares had such shares been converted pursuant to SECTION 3, and 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 receive in connection with the 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 failure of the Company or any Company Subsidiary with respect to 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 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, (vi) any Taxes imposed on Parent, Merger Sub, the Company its Subsidiaries or the Surviving Corporation resulting from the Merger Shareholder Representative 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 perform or reports to comply with any of the foregoing (each an “FBAR Report”) required to be filed by the Company or any Company Subsidiary for any period beginning on or before the Closing Date, including, in the case of each of (i) through (vii), for the avoidance of doubt, all Damages associated with the investigation, review, remediation and resolution of any of the foregoing; (i) any claim or actions by Persons who are or were Company Securityholders, in their capacities as Company Securityholders, arising out of the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder or the consummation of the transactions contemplated hereby); and (j) any claim by a Company Securityholder with respect to the actions or omissions of the Stockholder Representative, including any claim for fraud or misrepresentation, breach or non-fulfillment of any representation, warranty, covenant or agreement made by the Stockholder Representative each of them in this Agreement or Agreement; or (iii) those matters giving rise to Tax Losses for which the Parent Indemnified Parties are entitled to be indemnified in accordance with Section 6.9(e). (b) Any payment pursuant to this Section 9.2 shall be made in the form of a transfer from the Indemnification Escrow Account to the applicable Parent Indemnified Party pursuant to the terms and conditions of the Escrow Agreement.