Common use of By Securityholders Clause in Contracts

By Securityholders. From and after the Closing, the Securityholders (in such capacity, each a “Company Indemnifying Party” and collectively, the “Company Indemnifying Parties”) shall severally (in proportion to their respective Pro Rata Portion), and not jointly, indemnify, save and hold harmless Parent, Merger Sub, the Surviving Corporation and their Affiliates and respective Representatives, and each of their successors and permitted assigns (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) from and against any and all losses, liabilities, obligations, claims, damages, awards, judgments, costs and expenses (including reasonable legal fees and expenses and litigation costs, and reasonable costs of investigation) (provided, that such fees, expenses and costs will not include the compensation of any officers, directors or employees of Parent or Company or any overhead allocable to them that is incurred in investigating, defending, settling or resolving any indemnification claim for which losses are determined) (herein, “Damages”), to the extent incurred in connection with, arising out of, resulting from or incident to: (i) a breach of any representation or warranty made by the Company in this Agreement or in the Company Closing Certificate; provided, however, that Parent shall not be entitled to indemnification for any breach or inaccuracy of any of the representations and warranties set forth in Article IV if such breach or inaccuracy was disclosed in the Company Closing Certificate and related to any matter arising after the date of this Agreement and prior to the Closing Date; (ii) a breach of any covenant or agreement made, or to be performed, by the Company in this Agreement; (iii) a breach of the representation and warranty made by the Company in the Liability Certificate; (iv) any breach of any representation, warranty, covenant or agreement made by the parties to the Distribution Agreement therein (other than actions taken by the Surviving Corporation after the Closing); (v) any Pre-Closing Taxes of the Company and its Subsidiaries, to the extent not paid prior to the Closing; (vi) Taxes for periods prior to Closing of any member of an affiliated, consolidated, combined or unitary group of which the Company or any of its Subsidiaries is or was a member on or prior to the Closing Date by reason of liability under Treasury Regulation §1.1502-6, Treasury Regulation §1.1502-78 or comparable provision of foreign, state or local law, to the extent not paid prior to the Closing; (vii) Taxes arising out of any transactions contemplated by this Agreement, including as a result of or in connection with the Spin-Off Transaction (including any federal income Taxes and any withholding Taxes), to the extent not paid prior to the Closing; (viii) Taxes or other payments required to be paid after the date hereof by the Company or any of its Subsidiaries to any party under any Tax Sharing Agreement entered into on or before the date hereof (whether written or not) or by reason of being a successor-in-interest or transferee of another entity, to the extent not paid prior to the Closing; (ix) any costs associated with, or reasonable Expenses (including any reasonable costs or Expenses of any appraisal proceeding) incurred by a Parent Indemnified Party following the Closing in connection with (A) canceling or otherwise eliminating any EPIL Options outstanding following the Closing, (B) causing any EPIL common stock (other than any held by the Surviving Corporation or Parent or any of its Subsidiaries) to no longer be outstanding following the Closing or (C) otherwise causing EPIL to be wholly-owned (directly or indirectly) by Parent; provided, that there shall be excluded from any Damages payable under this Section 8.2(a)(ix) any amount payable by any Parent Indemnified Party to any current or former holder of an EPIL Option in exchange for such holder’s EPIL Options or the shares of EPIL common stock issuable upon exercise thereof (regardless of the form of such exchange) that is equal to (A) the Merger Consideration times (B) the applicable fraction (determined as provided below) of a share of EPIL common stock issued or issuable upon exercise of such holder’s EPIL Options (assuming each share of EPIL common stock held by such holder or issuable upon exercise of such holder’s EPIL Options is exchanged for 47.52 shares of Company Common Stock; such applicable fraction to be derived based on such assumptions); (x) a claim made by any Securityholder challenging, objecting to or otherwise relating to any of the actions permitted under the proviso to Section 6.1(b), including the Company’s determination of the number of shares of Company Common Stock that is issued to any current or former holder of an EPIL Option in exchange for such holder’s EPIL Options or the shares of EPIL common stock issuable upon exercise thereof; (xi) a claim made by a D&O Indemnified Party, pursuant to its rights under the organizational documents of any Parent Indemnified Party or under the D&O Insurance of any Parent Indemnified Party, in connection with a claim by any Person that such D&O Indemnified Party violated the provisions of DGCL Section 170; or (xii) any claim made with respect to the matter listed as Item 1 of Section 4.34 of the Company’s Disclosure Letter.

By Securityholders. From and after the Closing, the The Securityholders (in such capacity, each a “"Company Indemnifying Party” " and collectively, the “"Company Indemnifying Parties”") shall severally (in proportion to their respective Pro Rata Portion), and not jointly, indemnify, save and hold harmless Parent, Merger Sub, the Surviving Corporation Sub and their Affiliates and respective Representatives, and each of their successors and permitted assigns (each, a “"Parent Indemnified Party” " and collectively, the “"Parent Indemnified Parties”") from and against any and all lossescosts, liabilitieslosses (including lost profits), obligationsdemands, claims, damagesdebts, awardsactions, assessments, judgments, costs settlements, sanctions, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, known or unknown, due or to become due or otherwise), monetary damages, fines, Taxes, fees, penalties, interest obligations, deficiencies and expenses (including reasonable legal amounts paid in settlement, interest, court costs, costs of investigation, fees and expenses of attorneys, accountants, financial advisors and litigation costsother experts, and reasonable costs other expenses of investigation) (provided, that such fees, expenses and costs will not include the compensation of any officers, directors litigation or employees of Parent or Company or any overhead allocable to them that is incurred in investigating, defending, settling or resolving any indemnification claim preparation for which losses are determinedlitigation as incurred) (herein, “"Damages”"), to the extent incurred in connection with, arising out of, of or resulting from or incident tofrom: (i) a any breach of any representation or warranty or the inaccuracy of any representation or warranty, made by the Company in this Agreement or in any exhibit, schedule, certificate (including the Company Closing Certificate; provided, however, that Parent shall not be entitled to indemnification for any breach Disclosure Letter) or inaccuracy of any of the representations and warranties set forth in Article IV if such breach or inaccuracy was disclosed in agreement delivered by the Company Closing Certificate and related to any matter arising after the date of this Agreement and prior to the Closing Datepursuant hereto; (ii) a any breach of any covenant or agreement made, or to be performed, by the Company in this AgreementAgreement or any exhibit, schedule, certificate (including the Company Disclosure Letter) or agreement delivered by the Company pursuant hereto; (iii) a breach any lawsuit or claim brought against the Company or any Company Subsidiary or any officer, director or employee (at or above the director level) of the representation and warranty made Company or a Company Subsidiary with respect to the willful misconduct or gross negligence by any such officer, director or employee (at or above the director level) of the Company or Company Subsidiary prior to the Effective Time; provided, however, that, any amount paid to indemnify directors and officers of the Company for any liability relating to the approval of this Agreement or the Merger shall in the Liability Certificateno event constitute Damages for purposes of this Article 8; (iv) Excess Payments (including any breach of any representation, warranty, covenant or agreement made by the parties to the Distribution Agreement therein (other than actions taken by the Surviving Corporation Damages suffered through and after the Closingapplicable survival period); (v) any Pre-Closing Taxes of the Company and its SubsidiariesExcess Expenses, to the extent the same did not paid prior to result in a reduction of the Closing;Total Merger Consideration; and (vi) Taxes for periods prior a failure to Closing comply with Pharmaceutical Laws in the testing, clinical trials, manufacturing, storage, packaging, sale or distribution of any member of an affiliated, consolidated, combined Surodex or unitary group of which the Company or any of its Subsidiaries is or was a member on or prior to the Closing Date by reason of liability under Treasury Regulation §1.1502-6, Treasury Regulation §1.1502-78 or comparable provision of foreign, state or local law, to the extent not paid prior to the Closing; (vii) Taxes arising out of any transactions contemplated by this Agreement, including as a result of or in connection with the Spin-Off Transaction (including any federal income Taxes and any withholding Taxes), to the extent not paid prior to the Closing; (viii) Taxes or other payments required to be paid after the date hereof by the Company or any of its Subsidiaries to any party under any Tax Sharing Agreement entered into on or before the date hereof (whether written or not) or by reason of being a successor-in-interest or transferee of another entity, to the extent not paid prior to the Closing; (ix) any costs associated with, or reasonable Expenses (including any reasonable costs or Expenses of any appraisal proceeding) incurred by a Parent Indemnified Party following the Closing in connection with (A) canceling or otherwise eliminating any EPIL Options outstanding following the Closing, (B) causing any EPIL common stock (other than any held by the Surviving Corporation or Parent or any of its Subsidiaries) to no longer be outstanding following the Closing or (C) otherwise causing EPIL to be wholly-owned (directly or indirectly) by Parent; provided, that there shall be excluded from any Damages payable under this Section 8.2(a)(ix) any amount payable by any Parent Indemnified Party to any current or former holder of an EPIL Option in exchange for such holder’s EPIL Options or the shares of EPIL common stock issuable upon exercise thereof (regardless of the form of such exchange) that is equal to (A) the Merger Consideration times (B) the applicable fraction (determined as provided below) of a share of EPIL common stock issued or issuable upon exercise of such holder’s EPIL Options (assuming each share of EPIL common stock held by such holder or issuable upon exercise of such holder’s EPIL Options is exchanged for 47.52 shares of Company Common Stock; such applicable fraction to be derived based on such assumptions); (x) a claim made by any Securityholder challenging, objecting to or otherwise relating to any of the actions permitted under the proviso to Section 6.1(b), including the Company’s determination of the number of shares of Company Common Stock that is issued to any current or former holder of an EPIL Option in exchange for such holder’s EPIL Options or the shares of EPIL common stock issuable upon exercise thereof; (xi) a claim made by a D&O Indemnified Party, pursuant to its rights under the organizational documents of any Parent Indemnified Party or under the D&O Insurance of any Parent Indemnified Party, in connection with a claim by any Person that such D&O Indemnified Party violated the provisions of DGCL Section 170; or (xii) any claim made with respect to the matter listed as Item 1 of Section 4.34 of the Company’s Disclosure LetterSuroquin.