Common use of Indemnification by the Company Securityholders Clause in Contracts

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5, 2.6 and 2.7, from and after the Effective Date the Company Securityholders, severally, and not jointly and severally, will indemnify and hold harmless the Purchaser, each of the Purchaser's Affiliates, each of the Acquired Companies and each of their respective directors, officers and employees (collectively, the "PURCHASER INDEMNIFIED PARTIES") from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value of, any and all Losses (as defined in the Arrangement Agreement) incurred or suffered by such Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the following: (a) any inaccuracy in or breach of any representation or warranty of the Company contained in the Arrangement Agreement or in any certificate, instrument or document delivered by the Company or the Company Securityholders in connection with the Arrangement Agreement; (b) any breach of any covenant of the Company contained in the Arrangement Agreement to be satisfied prior to the Effective Time; (c) any Closing Date Excess Transaction Expenses not being included in the determination of the Purchase Price by reason of any difference between the Closing Date Transaction Expenses estimated by the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; and (d) any Proceedings, demands or assessments incidental to any of the matters set forth in clauses (a) through (c) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and the amount of any Losses associated therewith, the parties agree: (a) that all references to "material," "materially" or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; and

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5provisions of Article 7, 2.6 Section 8.7(b) and 2.7this Article 9, from and after the Effective Date the Closing, each Company Securityholders, severally, and not jointly and severally, will Securityholder shall indemnify and hold harmless the Purchaser, each of the Purchaser's Affiliates, each of Buyer and its Affiliates (including the Acquired Companies Companies), and each of their respective directorspartners, officers equityholders and employees members (collectively, the "PURCHASER INDEMNIFIED PARTIES") “Buyer Indemnified Parties”), from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value of, any and against such Company Securityholder’s Indemnification Pro Rata Percentage of all Losses (as defined in the Arrangement Agreement) asserted against or incurred by any Buyer Indemnified Party by reason of or suffered by such Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the following: (a) Any (i) breach of the Fundamental Representations set forth in Article 3, (ii) inaccuracy in the Closing Consideration Allocation Certificate, or (iii) any inaccuracy in or breach of any representation or warranty of the Company contained in the Arrangement Agreement or in any certificate, instrument or document certificates delivered by the Company or pursuant to Section 10.2(k) and Section 10.2(l) (to the Company Securityholders extent, and only to the extent, relating to the accuracy of the Fundamental Representations set forth in connection with the Arrangement AgreementArticle 3); (b) any breach of any covenant the covenants of the Company contained set forth in this Agreement or any Related Agreement, to the Arrangement Agreement extent (and only to the extent) required to be satisfied performed prior to or at the Effective TimeClosing; (c) any failure of Seller Representative to perform any covenants or agreement of the Seller Representative contained in this Agreement or any Related Agreement; (d) Pre-Closing Company Entity Taxes (other than any Taxes arising from a transaction on the Closing Date Excess after the Closing involving one or more of the Company Entities outside the ordinary course of business and not contemplated by this Agreement or any Related Agreement which transaction is effected by or at the direction of Buyer); (e) Fraud of the Company Entities; (f) any Seller Transaction Expenses or Indebtedness (excluding the PPP Loan Amount if outstanding as of the Closing Date and excluding income Taxes of the Acquired Companies for the Pre-Closing Tax Period) of the Acquired Companies that was outstanding prior to the Closing and that do not being included in reduce the determination Purchase Price on a dollar-for-dollar basis as finally determined pursuant to Article 2; (g) any demand, claim, suit, action, cause of action, proceeding, assessment or dispute brought by or on behalf of any Company Securityholder with respect to the allocation or payment among the Company Securityholders of the Purchase Price pursuant to the terms of this Agreement, including the preparation of the Allocation Methodology (except to the extent a claim relating to the Allocation Methodology is covered by reason of the parenthetical in Section 9.3(e)) or any difference between claim that the Closing Date Transaction Expenses estimated by the Company under Section 7.4 (Transaction ExpensesConsideration Allocation Certificate is not true, correct and complete; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; andor (dh) any Proceedings, demands or assessments incidental to any of the matters set forth in clauses (a) through (c) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and the amount of any Losses associated therewith, the parties agree: (a) that all references to "material," "materially" or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; andDesignated Pre-Closing Matters.

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5terms and conditions of this Article VIII, 2.6 and 2.7, from and after upon the Effective Date Closing of the Company Securityholders, severally, and not jointly and severally, will indemnify and hold harmless the PurchaserTransactions, each of the PurchaserCompany Securityholders hereby, severally and not jointly, agree to indemnify, defend and hold harmless Parent and Parent's AffiliatesAffiliates (including, each of following the Acquired Companies Closing, the Company), and each of their respective officers, directors, officers employees, agents, representatives, successors and employees permitted assigns (collectivelyeach, the "PURCHASER INDEMNIFIED PARTIES"a “Parent Indemnified Party”) from from, against and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value of, in respect of any and all Losses (as defined in the Arrangement Agreement) Damages incurred or suffered by such Purchaser the Parent Indemnified Parties as a result of, arising out of or relating to, directly or indirectly arising out of, relating to or resulting from any of the followingindirectly: (a) any breach or inaccuracy in or breach of any representation or warranty of the Company set forth in Article III of this Agreement or the certificate of the Company delivered at the Closing pursuant to Section 7.2(d) with the existence of such breach being determined without regard to any qualification based on “material”, “materiality” or Company Material Adverse Effect contained in any such representation or warranty (other than the Arrangement Agreement representations or warranties contained in Sections 3.7(a), 3.10(a), 3.13(a), 3.17(d), the first sentence of Section 3.8 or any certificate, instrument or document delivered by the Company or the Company Securityholders in connection with the Arrangement Agreementreference to “Material Contracts”); (b) any amount to satisfy a negative aggregate Net Working Capital Adjustment Calculation in accordance with Section 2.8(e)(ii); (c) the breach of any pre-Closing covenant or agreement of the Company contained in the Arrangement this Agreement to be satisfied prior to the Effective Time; (c) or any post-Closing Date Excess Transaction Expenses not being included in the determination covenant of the Purchase Price Company Securityholders contained in Article II, Section 6.8 or this Article VIII; provided, however, that no Company Securityholder shall be liable for a breach by reason another Company Securityholder of any difference between the post-Closing Date Transaction Expenses estimated by covenant of the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; andSecurityholders; (d) any Proceedingsclaim for payment of fees and/or expenses as a broker or finder in connection with the origin, demands negotiation or assessments incidental to any execution of this Agreement or the other agreements contemplated hereby or the consummation of the matters transactions contemplated hereby based upon any alleged agreement, arrangement or understanding between the claimant and the Company; (e) any claims by any current or past Company Securityholder as a result of the exercise of appraisal rights (net of any amount that would otherwise have been payable hereunder to the holder of Company Capital Stock exercising appraisal rights) or any claim that the distribution of the Closing Consideration in accordance with this Agreement were not made in accordance with the certificate of incorporation of the Company; (f) any Debt, Excess Transaction Expenses or the Qivox Payments, in each case, not paid off prior to or concurrently with the Closing or not included in the Net Working Capital Adjustment Calculation set forth in clauses (a) through (c) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in2.8, without duplication, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and deficit in the amount of any Losses associated therewith, Cash of the parties agree:Company Group at the Closing as compared to such amount set forth in the Closing Statement; and (ag) any violation or potential violation by the Company or any of its Subsidiaries of any U.S. Export Laws or any and all applicable foreign laws, regulations, and requirements regulating exports and imports to or from that all references to "material," "materially" foreign country, including the export or "materiality," or to whether a breach would have a material adverse effectreexport of goods, Company Material Adverse Effectservices, or result technology from that foreign country (for avoidance of doubt, including the Export Issues (as defined in a material adverse changethe Disclosure Schedules), will be disregarded; andand notwithstanding any disclosure by the Company of any such violation or potential violation).

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5, 2.6 and 2.7, from From and after the Effective Date Time, subject to the limitations set forth in Section 7.3, the Company SecurityholdersSecurityholders shall (without any right of contribution, severallyindemnification, reimbursement or comparable right against or from the Company or the Surviving Corporation), severally and not jointly and severallyjointly, will indemnify and hold harmless the Purchaser, each of the Purchaser's Affiliatesits Subsidiaries, each of the Acquired Companies and each of their respective Affiliates, and each such foregoing Person’s officers, directors, officers control persons, employees, stockholders, representatives, agents, assigns, successors and employees Affiliates (including, after the Closing, the Surviving Corporation) (collectively, the "PURCHASER INDEMNIFIED PARTIES") from and against, and will pay to the applicable “Purchaser Indemnified Parties the monetary value ofParties”) from, against and in respect of any and all Losses (as defined in the Arrangement Agreement) Adverse Consequences suffered, sustained, incurred or suffered paid by such any Purchaser Indemnified Parties directly Party based upon, in connection with, resulting from or indirectly arising out of, relating to or resulting from any of the following:(without duplication): (a) any breach or inaccuracy in or breach of any representation or warranty of the Company contained set forth in this Agreement, the Arrangement Agreement or in Company Disclosure Schedule, any certificateCompany Ancillary Agreement, instrument or document any certificate delivered by the Company pursuant to this Agreement, and any Third Party Claim alleging facts that, if true, would constitute such a breach or the Company Securityholders in connection with the Arrangement Agreementinaccuracy; (b) any nonfulfillment or breach by the Representative of any covenant or agreement of the Company contained Representative set forth in the Arrangement Agreement to be satisfied prior to the Effective Time;this Agreement. (c) any (i) Company Indebtedness as of the Closing Date Excess Transaction Expenses not being included exceeding such Company Indebtedness identified in the determination of Consideration Certificate, (ii) the Purchase Price by reason of any difference between Indemnifiable Merger Expenses or (iii) Employee Transaction Related Expenses exceeding such Employee Transaction Related Expenses identified in the Closing Date Transaction Expenses estimated by the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; andConsideration Certificate; (d) any Proceedingsinaccuracies in the Spreadsheet; (e) any payments paid or owed by the Surviving Corporation with respect to or in connection with any Dissenting Shares to the extent that the aggregate amount of such payments, demands or assessments incidental together with the aggregate amount of all Adverse Consequences with respect thereto, exceeds the consideration that otherwise would have been payable pursuant to any Article II upon the exchange of the matters set forth in clauses Dissenting Shares if such former stockholders had not exercised their dissenter’s rights; (af) through any Indemnified Taxes; (cg) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy inclaim by (i) any current or former Company Securityholder, or whether any of the Acquired Companies has breachedAffiliate, any such representation, warranty trustee or covenant, and the amount beneficiary of any Losses associated therewithCompany Securityholder, based upon any alleged breach of fiduciary duty, usurping corporate opportunity or similar breach of care, loyalty or comparable claims by any officer, director or current or former Company Securityholder occurring prior to the parties agree:Closing, whether or not in connection with this Agreement or the transactions contemplated by this Agreement or (ii) any officer, director or current or former Company Securityholder to indemnification or contribution by the Company with respect to acts occurring on or prior to the Closing; and (ah) that all references any downward Merger Consideration adjustment based on the Final Closing Balance Sheet provided for in Section 2.3(b)(v) hereto (without duplication of any release from the Escrow Account to "material," "materially" Purchaser pursuant to Section 2.3(b)(iii) or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; andSection 2.3(b)(v)).

Indemnification by the Company Securityholders. Subject Upon the terms and subject to the limitations expressly set forth in Sections 2.5, 2.6 and 2.7, from and after the Effective Date the Company Securityholders, severally, and not jointly and severally, will indemnify and hold harmless the Purchaserconditions of this Article VIII, each of the Purchaser's Seller Indemnifying Parties, severally and not jointly based upon its Pro Rata Indemnity Portion, shall indemnify, defend and hold harmless Parent, Merger Sub, the Surviving Corporation, and their respective Affiliates, each of the Acquired Companies and each of their respective officers, directors, officers employees and employees Representatives (each, a “Parent Indemnified Party” and collectively, the "PURCHASER INDEMNIFIED PARTIES"“Parent Indemnified Parties”) from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value of, any and all Losses (as defined in the Arrangement Agreement) incurred or suffered by such Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the following: against (a) any Damages incurred by any Parent Indemnified Party to the extent arising out of or resulting from (without duplication): (i) any breach or inaccuracy in or breach of any representation or warranty of the Company contained set forth in the Arrangement Agreement or in any certificate, instrument or document delivered by the Company or the Company Securityholders in connection with the Arrangement this Agreement; ; (bii) any breach of any covenant or agreement of the Company contained in the Arrangement Agreement to be satisfied prior to the Effective Time; (c) or any Closing Date Excess Transaction Expenses not being included in the determination of the Purchase Price by reason of any difference between the Closing Date Transaction Expenses estimated by the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; and (d) any Proceedings, demands or assessments incidental to any of the matters Seller Indemnifying Party set forth in clauses this Agreement; (aiii) through (c) above. For purposes of determining under this subject to Section 2.1 whether there is 2.16(d), any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and in the amount of Acquisition Expenses or Closing Date Indebtedness set forth in the Closing Statement; (iv) any Losses associated therewithshares of capital stock of the Company becoming Dissenting Shares (it being understood that such Damages shall be limited to the amount by which the appraisal value of the Dissenting Shares is greater than the Merger Consideration that would have been payable in respect of such Dissenting Shares); (v) any claim by a Company Securityholder that the Merger Consideration payable to such Person was calculated incorrectly under, or otherwise inconsistent with, the parties agree: (a) that all references to "material," "materially" or "materiality," or to whether a breach would have a material adverse effectterms of the Company Funding Documents, the Company Material Adverse EffectOrganizational Documents, or result any other applicable agreement; (vi) any Excluded Taxes and (vii) any Damages incurred by any Parent Indemnified Party arising out of or related to the actual or alleged breach or violation of the provisions in the Contracts listed on Part II of Section 3.5 of the Company Disclosure Letter (the “Specified Contracts”) prohibiting or restricting the sharing or disclosure of data or other information with Parent or its Affiliates; provided that certain Contracts included within the Specified Contracts may be removed from such definition with the prior written consent of Parent and the Securityholder Representative; and (b) fifty percent (50%) of any settlement payments, payments made pursuant to a material adverse changebinding judgment, or any payments of fines pursuant to a binding judgment by any Parent Indemnified Party (without duplication) in connection with the Class Action Litigation (collectively, “Litigation Losses”). Notwithstanding anything else herein, any Litigation Losses which are indemnifiable pursuant to Section 8.1(b) will not also be disregarded; andindemnifiable Damages pursuant to Section 8.1(a).

Indemnification by the Company Securityholders. Subject to the terms, conditions and limitations expressly set forth in Sections 2.5of this Article VIII, 2.6 and 2.7following the Closing, from and after the Effective Date the Company SecurityholdersSecurityholders shall, severallyon a several (and not joint and several) basis (based on their relative Indemnification Pro Rata Portion), indemnify Parent and its Affiliates, and not jointly and severally, will indemnify and hold harmless the Purchaser, each of the Purchaser's Affiliates, each of the Acquired Companies and each of their respective successors, assigns, officers, directors, officers stockholders, employees and employees agents (collectively, the "PURCHASER INDEMNIFIED PARTIES"“Parent Indemnified Persons” and each, a “Parent Indemnified Person”) from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value ofhold them harmless from, any and all Losses (as defined in the Arrangement Agreement) Loss suffered or incurred or suffered by any such Purchaser Parent Indemnified Parties directly or indirectly Person arising out of, relating to or resulting from any of the followingor based upon: (a) any inaccuracy in or breach of any representation or warranty of the Company contained in the Arrangement this Agreement or in any certificate, instrument or document certificate delivered by the Company or the Company Securityholders in connection with the Arrangement Agreementhereunder; (b) any breach or non-fulfillment of any covenant covenant, agreement or obligation of the Company contained in the Arrangement this Agreement to be satisfied prior to the Effective TimeClosing; (c) any Closing Date Excess Transaction Expenses not being included in the determination of the Purchase Price claim made by reason any Company Stakeholder or any other alleged holder of any difference between Company Capital Stock or rights to acquire Company Capital Stock relating to such Person’s rights with respect to the Closing Date Transaction Expenses estimated by Merger Consideration, or the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of calculations and determinations set forth on the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; andConsideration Spreadsheet; (d) any Proceedingsamounts (including costs and attorneys’ fees) paid to the holders of Dissenting Stockholders, demands or assessments incidental including any interest required to any be paid thereon, that are in excess of the matters set forth what such Dissenting Stockholders would have received hereunder in clauses (a) through (c) above. For purposes respect of determining under this Section 2.1 whether there is any inaccuracy insuch Dissenting Stockholders’ portion of Merger Consideration had such Dissenting Stockholders not been Dissenting Stockholders and all costs, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, expenses and the amount of any other Losses associated therewith, the parties agree: (a) that all references to "material," "materially" or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; andwith any Actions;

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5, 2.6 other terms and 2.7conditions of this Article X, from and after the Effective Date Closing, the Company Securityholders, severally, and not jointly and severally, will Securityholders shall indemnify and hold harmless the Purchaser, defend each of Parent and its Subsidiaries (including, following the Purchaser's AffiliatesClosing, each of the Acquired Companies Surviving Corporation and each of their respective directors, officers and employees its Subsidiaries) (collectively, the "PURCHASER INDEMNIFIED PARTIES"“Parent Indemnitees”) against, and shall hold each of them harmless from and against, and will shall pay to the applicable Purchaser Indemnified Parties the monetary value ofand reimburse each of them for, any and all Losses (as defined in the Arrangement Agreement) incurred or suffered by such Purchaser Indemnified Parties directly sustained by, or indirectly imposed upon, the Parent Indemnitees based upon, arising out of or by reason of, relating to or resulting from any of the following: (a) any inaccuracy in or breach of any representation or warranty of the Company contained Specified Representations or any failure of such Company Specified Representations to be true and correct as if it was made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); provided, that if any Company Specified Representation is qualified or limited based on materiality, including the Arrangement Agreement terms “material,” “Company Material Adverse Effect” or any similar materiality or similar qualification or limitation, such qualification or limitation shall in all respects be disregarded and given no effect for purposes of determining whether any certificatebreach thereof, instrument inaccuracy therein or document delivered by any Losses have occurred, and the Company or the Company Securityholders in connection with the Arrangement Agreementamount of such Losses; (b) any breach of any covenant of or nonperformance by the Company contained in the Arrangement Agreement to be satisfied prior to the Effective TimeClosing of any of its covenants or agreements set forth in this Agreement; (c) any Action asserted or threatened by (i) any Company Securityholder relating to or arising out of (x) the Pre-Closing Date Excess Recapitalization, (y) this Agreement, the other Transaction Expenses not being included in Documents or the determination consummation of the Purchase Price Merger, or (z) any alleged misallocation of the Aggregate Merger Consideration (including payments made by reason Parent or the Surviving Corporation at the direction of the Stockholders’ Representative or the Company) or the failure of the Note Payment Schedule or the Option Payment Schedule to be true and correct in all respects, (ii) any difference between the Closing Date Transaction Expenses estimated by Company Securityholder for payment relating to equity securities or debt of the Company under Section 7.4 issued and outstanding immediately prior to the Effective Time, including any payment related to the Company Notes or the Company Warrants, and (Transaction Expenses; Estimated Closing Balance Sheetiii) any holder of Company Options or other equity compensation awards, including stock appreciation rights, of the Arrangement Agreement Company and its Subsidiaries for payment of a portion of the actual Closing Date Transaction Expenses incurred by Aggregate Merger Consideration, related to any such option or equity compensation award of the CompanyCompany or its Subsidiaries; and (d) any Proceedings, demands or assessments incidental to any Taxes of the matters set forth in clauses Company or any Subsidiary thereof (aand any predecessors thereof) through (cresulting from a failure by the Company and its Subsidiaries to be eligible for the exclusion from gross income under Section 883(a)(1) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, Code and the amount Treasury Regulations issued thereunder in the current taxable year or in a Pre-Closing Tax Period or in a portion of any Losses associated therewith, Straddle Period ending on the parties agree: (a) that all references to "material," "materially" Closing Date in which such exclusion was claimed by the Company or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; andits Subsidiaries.

Indemnification by the Company Securityholders. Subject to the limitations expressly set forth in Sections 2.5, 2.6 and 2.7, from and after the Effective Date the Company Securityholders, severally, and not jointly and severally, will indemnify and hold harmless the Purchaser, each of the Purchaser's Affiliates, each of the Acquired Companies and each of their respective directors, officers and employees (collectively, the "PURCHASER INDEMNIFIED PARTIES") from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value of, any and all Losses (as defined in the Arrangement Agreement) incurred or suffered by such Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the following: (ai) any inaccuracy in or breach of any representation or warranty (solely for the purpose of calculating the Company contained amount of any Losses, any materiality qualifiers shall not be given effect, but such materiality qualifiers shall be relevant in the Arrangement Agreement determining whether any breach of such representation or in any certificate, instrument or document delivered warranty has occurred) made by the Company or any Company Stockholder in the Acquisition Documents; (ii) the breach of any covenant or agreement made by the Company Securityholders or any Company Stockholder in the Acquisition Documents; (iii) Losses from breach of contract or other claims made by any party alleging to have had a contractual or other right to acquire the Company's capital stock or assets; (iv) the value of any Tax deduction lost by the Company by virtue of the application of Section 280G of the Code; (v) any claim against Parent, the Company or the Surviving Corporation in connection with with, or related to, the Arrangement Management Incentive Agreement; (bvi) any breach of any covenant Excess Company Liabilities and/or Company Expenses in excess of the Excess Company contained in the Arrangement Agreement to be satisfied prior to the Effective Time; (c) any Closing Date Excess Transaction Expenses not being included in the determination of the Purchase Price by reason of any difference between the Closing Date Transaction Liabilities and/or Company Expenses estimated by the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of prior to the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by to the Companyextent not paid pursuant to Section 2.02; and (dvii) any Proceedingsclaim asserted by the Company Note Holders or the Company Stockholders against Parent, demands the Company or assessments incidental to the Surviving Corporation (other than claims in connection with the exercise of dissenters' or appraisal rights by the Company Stockholders or claims arising out of the breach by Parent or the Surviving Corporation of any of its representations, warranties and covenants contained in this Agreement or any of the matters set forth in clauses (a) through (c) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and the amount of any Losses associated therewith, the parties agree:other Acquisition Documents). (ab) that all references As used herein, "Losses" are not limited to "material," "materially" matters asserted by third parties, but include Losses incurred or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result sustained by the Parent Indemnified Parties in a material adverse change, will be disregarded; andthe absence of claims by third parties.

Indemnification by the Company Securityholders. Subject to the terms, conditions and limitations expressly set forth in Sections 2.5of this ‎Article VIII, 2.6 and 2.7following the Closing, from and after the Effective Date the Company Securityholders, severally, severally and not jointly and severally(based on their relative Indemnification Pro Rata Portion), will shall defend, indemnify and hold harmless the PurchaserAcquiror, the Merger Subs, the Surviving Company and their Affiliates, and the respective Representatives, successors and assigns of each of the Purchaser's Affiliates, each of the Acquired Companies and each of their respective directors, officers and employees foregoing (collectively, the "PURCHASER INDEMNIFIED PARTIES"“Acquiror Indemnified Parties” and each, an “Acquiror Indemnified Party”) from and against, and will pay to the applicable Purchaser Indemnified Parties the monetary value ofshall compensate and reimburse each of foregoing for, any and all Losses losses, damages, enhanced damages, liabilities, deficiencies, claims, diminution of value, interest, awards, judgments, penalties, Taxes, costs and expenses (as defined including reasonable and documented, out-of-pocket attorneys’ fees, costs and other reasonable and documented out-of-pocket expenses incurred in investigating, preparing or defending the Arrangement Agreementforegoing) incurred (hereinafter collectively, “Losses”), asserted against, incurred, sustained or suffered by such Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the followingforegoing as a result of, arising out of or relating to: (a) any inaccuracy in or breach of any representation or warranty of made by the Company contained in the Arrangement this Agreement or in any certificateAncillary Agreement or any schedule, instrument or document certificate delivered by the Company pursuant hereto or the Company Securityholders thereto or in connection with the Arrangement Agreementtransactions contemplated hereby or thereby (without giving effect to any limitations or qualifications thereto, including materiality, Material Adverse Effect, knowledge or subsequent supplements or updates to the Disclosure Schedules); (b) any breach of any covenant of or agreement by the Company (but expressly excluding, for purposes of clarity, the Surviving Company) contained in this Agreement or any Ancillary Agreement or any schedule or certificate delivered pursuant hereto or thereto or in connection with the Arrangement Agreement to be satisfied prior to the Effective Timetransactions contemplated hereby or thereby; (c) any Closing Date Excess Transaction Expenses that did not being included in otherwise reduce the determination of the Purchase Price by reason of any difference between the Closing Date Transaction Expenses estimated by the Company under Section 7.4 (Transaction Expenses; Estimated Closing Balance Sheet) of the Arrangement Agreement and the actual Closing Date Transaction Expenses incurred by the Company; andUpfront Cash Consideration; (d) any Proceedings, demands or assessments incidental amounts required to any of be paid to Company Securityholders due to errors in the matters set forth in clauses (a) through (c) above. For purposes of determining under this Section 2.1 whether there is any inaccuracy in, or whether any of the Acquired Companies has breached, any such representation, warranty or covenant, and the amount of any Losses associated therewith, the parties agree:Consideration Spreadsheet; and (ae) that all references to "material," "materially" or "materiality," or to whether a breach would have a material adverse effect, Company Material Adverse Effect, or result in a material adverse change, will be disregarded; andany unpaid Pre-Closing Taxes.