Section 3.16 Legal Proceedings; Governmental Orders.

(a) Except as set forth in Section 3.16 of the Disclosure Schedules, there are no Actions pending or threatened in writing (i) against or by the Company or any of its Subsidiaries affecting any of their respective properties or assets (or by or against any Equityholder or any Affiliate thereof and relating to the Company or any of its Subsidiaries); or (ii) against or by the Company, any of its Subsidiaries, any Equityholder or Affiliate thereof that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement or the other Transaction Documents. To the Company’s Knowledge, no event has occurred or circumstances exist that would reasonably be expected to give rise to, or serve as a basis for, any such Action.

(b) There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against or affecting the Company or any of its Subsidiary or any of their respective properties or assets.

(c) There are no settlements or orders relating to any Actions previously settled or dismissed that require any payments or action to be taken, or not to be taken, by the Company following the date hereof.

Section 3.17 Compliance with Laws.

(a) The Company and each of its Subsidiaries is, and for the past seven (7) years, has been, in compliance with all Laws applicable to them or any of their respective assets or properties.

(b) Neither the Company nor any Subsidiary has received written notice or, to the Company’s Knowledge, oral notice from any Governmental Authority to the effect that (i) it is not in compliance with any Laws or (ii) an investigation or review by any Governmental Authority with respect to the Company or any of its Subsidiaries is pending.

(c) No investigation or review by any Governmental Authority of the Company or any of its Subsidiaries is threatened.

(d) None of the Company, any of its Subsidiaries, directors, officers, employees, or, to the Company’s Knowledge, distributors, agents or other Persons acting on behalf of the Company or any of its Subsidiaries, has, directly or indirectly, given or agreed to give any unlawful gift, bribe, kickback or similar benefit (other than with respect to bona fide payments for which adequate consideration has been given); neither the Company nor any of its Subsidiaries have (i) used funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) violated any of the provisions of The Foreign Corrupt Practices Act of 1977 (or similar non-U.S. Laws), or (iii) given or received any illegal discounts or rebates or any other violation of Antitrust Laws.

Section 3.18 Permits. The Company and its Subsidiaries own or possess all right, title and interest in all Permits required to own its assets and conduct its business as now being conducted. All Permits of the Company and its Subsidiaries are listed on Section 3.18 of the Disclosure Schedules and are valid and in full force and effect. The Company and its Subsidiaries are in compliance with the terms and conditions of all Permits. The names and respective dates of issuance and expiration of each Permit is set forth on Section 3.18 of the Disclosure Schedules. All fees and charges with respect to such Permits due as of the date hereof have been paid in full. To the Company’s Knowledge, no event has occurred that, with or without notice or lapse of time or both, will result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 3.18 of the Disclosure Schedules. To the Company’s Knowledge, the Company and its Subsidiaries are in compliance with the terms and conditions of all of their Permits. No loss, revocation, cancellation, suspension, termination or expiration of any Permit is pending or threatened other than expiration or termination in accordance with the terms thereof. Neither the Company nor any of its Subsidiaries has received any written notice or to Company’s Knowledge oral notice from any Governmental Authority of any actual or alleged violation or non-compliance regarding any such Permit.

Section 3.19 Employee Benefits.

(a) Section 3.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, welfare, health, life, disability, cafeteria, flexible spending, vacation, paid time off, fringe-benefit and other similar compensatory agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is maintained by, sponsored by, contributed to, or required to be contributed to, the Company or any of its Subsidiaries or any ERISA Affiliate for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant or any spouse or dependent of such individual, or under which the Company or any ERISA Affiliate has or may have any Liability (as listed on Section 3.19(a) of the Disclosure Schedules, each, a “Benefit Plan”). Section 3.19(a) of the Disclosure Schedules also lists for each outstanding option or other equity compensation award the following: (i) grantee’s name, (ii) grant date, (iii) number of shares (1) granted under the award, (2) vested as of the date hereof, and (3) outstanding with respect to such award, (iv) type of award (and if a stock option whether or not the option is a Code section 422 incentive stock option), (v) exercise price or purchase price (if any), and (vi) vesting schedule and maximum term. Section 3.19(a) of the Company Disclosure Letter specifically indicates which Benefit Plans are maintained by the Company or any of its Subsidiaries to provide compensation and benefits to employees or directors of the Company or any of its Subsidiaries primarily located in a country other than the United States and which are governed by laws outside of the United States (“Foreign Employee Plans”).

(b) With respect to each Benefit Plan, the Company has made available to Parent accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all plan terms; (iii) trust agreements and other funding arrangements, including insurance policies and group contracts; (iv) the most recent summary plan description and any summaries of modifications thereto; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the three (3) most recently filed Forms 5500, with schedules attached and the three (3) most recent annual reports required to be filed by a relevant non-U.S. Governmental Authority with respect to such Foreign Employee Plans; (vii) if applicable, the most recent actuarial valuations related to any Benefit Plans; (viii) applicable coverage and non-discrimination testing results for the three (3) most recently completed plan years for any Benefit Plan that is afforded tax-favorable status under the Code; and (ix) all non-routine correspondence with any Governmental Authority relating to any Benefit Plan during the last three (3) years, including any applications or filings under the Internal Revenue Service’s Voluntary Correction Program or the Department of Labor’s Delinquent Filer Voluntary Compliance Program or Voluntary Fiduciary Correction Program.

(c) None of the Benefit Plans is and the Company and its ERISA Affiliates have not, at any time during the last six (6) years, sponsored, contributed to or been obligated to contribute to: (i) a “defined benefit plan” as defined in ERISA Section 3(35); (ii) a pension plan subject to the funding standards of ERISA Section 302 or Code Section 412; (iii) a “multiemployer plan” as such term is defined in ERISA Section 3(37) or Code Section 414(f); (iv) a “multiple employer plan” subject to Sections 4063 and 4064 of ERISA; or (v) a multiple employer welfare arrangement within the meaning of ERISA Section 3(40).

(d) Each Benefit Plan has been established, funded, operated, administered and maintained in accordance with its terms, and in compliance with applicable Law (including without limitation applicable federal and state securities Laws), including ERISA and the Code and, with respect to any Benefit Plan that constitutes a Foreign Employee Plan, the applicable Laws of the relevant non-US jurisdiction. Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination or opinion letter as to its qualification, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, and since the date of such letter nothing has occurred that would reasonably be expected to cause the loss of such qualification or any tax exemption related to any trust related to such Benefit Plan.

(e) No Benefit Plan under which welfare benefits are provided to employees of the Company or any of its Subsidiaries, excluding any short-term disability, non-qualified deferred compensation or flexible spending account plan or program, is self-funded, self-insured or funded through the general assets of the Company or any of its Subsidiaries. There are no Benefit Plans under which welfare benefits are provided to employees of the Company or any of its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA or similar state group health plan continuation Laws, the cost of which is fully paid by such employees or their dependents, or as otherwise required by applicable Law.

(f) There is no pending or, to the Company’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.

(g) There have been no “prohibited transactions,” as defined in Section 4975 of the Code or Section 406 of ERISA (which is not otherwise exempt), with respect to any Benefit Plan, nor have there been any fiduciary violations under ERISA that could subject the Company or any of its Subsidiaries (or any employee) to any penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code.

(h) As of the date hereof and as of the Closing Date, all contributions, premiums and other payments due or required to be paid to (or with respect to) each Benefit Plan have been timely paid, or if not yet due, have been accrued as a liability on the balance sheet of the Company and its Subsidiaries to the extent required by GAAP.

(i) Except as provided in Section 3.19(i) of the Disclosure Schedules, neither the execution and delivery of this Agreement nor the approval or consummation of the transactions contemplated herein will (either alone or in conjunction with any other event, including a subsequent termination of employment) (i) result in any payment becoming due to any employee of the Company or any of its Subsidiaries, (ii) increase any payments or benefits otherwise payable under any Benefit Plan, (iii) result in the acceleration of the time of payment, funding or vesting of any payments or benefits under any Benefit Plan, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any of its Subsidiaries to any Person, (v) result in any compensation payable to any individual in connection with the transactions contemplated herein constituting a Code Section 280G “parachute payment” or being nondeductible to the Company or any of its Subsidiaries under Section 280G of the Code or subject to the excise tax imposed by Section 4999 of the Code, or (vi) limit or restrict the right of the Company or any of its Subsidiaries to amend or terminate any of the Benefit Plans.

(j) All Benefit Plans that constitute a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code: (i) have at all times been, and are, in compliance with the documentation and form requirements of Code Section 409A (and applicable Treasury Regulations and Internal Revenue Service guidance promulgated thereunder) and (ii) have been operated at all times in compliance with Code Section 409A (and applicable Treasury Regulations and Internal Revenue Service guidance promulgated thereunder). Neither the Company nor any of its Subsidiaries has any indemnity or gross-up obligation to any Person for any Taxes, Losses or penalties imposed under Sections 4999 or 409A of the Code or similar state laws. Any and all “stock rights” (within the meaning of Treasury Regulation Section 1.409A-1(b)(5)(i)) granted or awarded by the Company or any of its Subsidiaries to their respective service providers have been issued with exercise prices of not less than fair market value on the respective grant dates for purposes of Section 409A of the Code (and the guidance issued thereunder), and all requirements have been met in connection with all such issuances or any post-grant amendments or modifications, such that the stock rights shall be exempt from Section 409A of the Code.

(k) The Company and its ERISA Affiliates have complied and are in compliance with the applicable requirements of the Patient Protection and Affordable Care Act of 2010, as amended, including the reporting requirements under Sections 6055 and 6056 of the Code, and neither the Company nor any ERISA Affiliate is reasonably expected to incur or to be subject to, any Tax or other penalty under Sections 4980B, 4980D or 4980H of the Code.

(l) No current or former service provider (including any employee) of the Company or any of its Subsidiaries is entitled to participate in any Foreign Employee Plan which is a defined benefit pension plan, final salary plan or any death, disability or retirement benefit, the benefits in any such case which are calculated by reference to age, salary or length of service. No current or former service provider of the Company or any of its Subsidiaries has any material claim or right under any Foreign Employee Plan in respect of any benefits payable on early retirement or redundancy under any such plan which is an occupational pension plan which claim or right was transferred with such service provider to the Company or any of its Subsidiaries pursuant to the Transfer Regulations or laws of the applicable foreign jurisdiction. Each Foreign Employee Plan that must be approved, registered or qualified in the country in which it is maintained by any Governmental Authority in such country, has received, or timely applied for (and it has not been rejected or such application withdrawn), such approval, registration or qualification, and such Foreign Employee Plan has not been amended since the date of its most recent registration or qualification (or application therefor) in a manner that would require a new registration or qualification.

Section 3.20 Employment Matters.

(a) Section 3.20(a) of the Disclosure Schedules contains a correct and complete list of all persons who are employees, independent contractors or consultants of the Company and each of its Subsidiaries as of the date hereof, and sets forth for each such individual the following information: (i) name; (ii) title or position (including whether full or part time); (iii) entity that they are employed by; (iv) hire date; (v) current base salary or hourly pay rate; (vi) commission, bonus or other incentive-based cash compensation; (vii) overtime exemption classification; and (viii) the amount of accrued vacation or other paid time off accrued as of the date hereof and as of the Closing Date.

(b) As of the date hereof and as of the Closing Date, the Company and each of its Subsidiaries (i) have paid or withheld or collected from its employees the amount of all Taxes required to be withheld or collected therefrom and have paid the same when due to the proper Governmental Authority; and (ii) paid and contributed all amounts, including payroll Taxes, required to be paid or contributed in respect to the employment of any employee or common law employee or amounts paid to any employee or common law employee.

(c) No Key Employees or, to the Company’s Knowledge, other employee of the Company or any of its Subsidiaries has any plans to terminate employment with the Company or such Subsidiary prior to the Closing Date or within one (1) year following the consummation of the transactions contemplated hereby.

(d) Neither the Company nor any of its Subsidiaries are bound by, or is in the process of negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization purporting to represent any of its employees (collectively, “Union”), and there is not, and has never been any Union representing or, to the Company’s Knowledge, purporting to represent any of their employees. To the Company’s Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of engaging in collective bargaining. There is not and during the past three (3) years there has not been any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting the Company, its Subsidiaries, or any of their respective employees. There is currently no unfair labor practice charge or any other action, complaint, suit, arbitration, inquiry, proceeding or investigation pending or threatened in writing before the National Labor Relations Board or any other agency having jurisdiction thereof.

(e) The Company and each of its Subsidiaries are in compliance with all Laws relating to employment, employment practices, denial of employment or employment opportunity, discrimination, harassment, termination of employment, leaves of absence, workers’ hazardous materials, occupational health and safety and pay equity, including, without limitation, to the extent applicable, Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866, 1871, and 1991, the Age Discrimination in Employment Act, Employee Retirement Income Security Act, the Americans With Disabilities Act of 1990, the Family and Medical Leave Act, the Equal Pay Act, Occupational Safety and Health Act, the California Fair Employment and Housing Act, the California Labor Code, the applicable California Wage Order, all as amended, and any other applicable Law relating to any condition of employment or employment discrimination. Neither the Company nor any of its Subsidiaries has incurred any Liability arising from the misclassification of employees or independent contractors. The Company and each of its Subsidiaries are in compliance with all applicable Laws relating to employee/independent contractor classification, wages and hours, including, without limitation, to the extent applicable, the Fair Labor Standards Act, California wage and hour laws (including, without limitation, Laws regarding meal and rest periods, overtime, sick pay, and employee pay stubs) and other Laws governing wage and hour issues and obligations.

(f) There are not now, nor within the past three (3) years have there been, any Actions or Actions threatened in writing by or before any Governmental Authority or court brought by or on behalf of any employee, former employee, Union or other representative of the employees of the Company or any of its Subsidiaries pending or, threatened in writing, against the Company, its Subsidiaries, or any of their respective employees or directors relating to any labor, employment, or safety matters involving any employee, candidate or non-employee worker, including but not limited to charges of unfair labor practices, discrimination complaints, harassment complaints, retaliation complaints, complaints of unpaid wages or overtime, complaints of overtime exemption misclassification, wrongful discharge, improper background checks, or any other alleged unlawful employment practice, which, if adversely determined, would, individually or in the aggregate, result in any liability to the Company or its Subsidiaries. There is no reasonable basis for any claim by any current or former employee, candidate, or non-employee worker that they were subject to a wrongful discharge, or any employment discrimination or retaliation by the Company or its Subsidiaries, or their respective management, arising out of or relating to such individual’s race, sex, age, religion, national origin, ethnicity, handicap, any other protected characteristic or activity protected under applicable Laws, or based upon an alleged breach of contract. There are no pending or threatened claims or actions against the Company or any of its Subsidiaries under any worker’s compensation policy, short-term disability plan or policy, or long-term disability plan or policy (other than routine claims for payment of benefits).

(g) The Company has furnished or made available to Parent all written policies and guidelines of the Company and each of its Subsidiaries concerning employment practices, working conditions, hours and other employment matters. The Company and each of its Subsidiaries are in compliance with all such policies and guidelines.

(h) Since the onset of the COVID-19 Pandemic, the Company has maintained adequate network security and policies and practices relating to privacy, electronic records and cybersecurity, including as they relate to the implementation or expansion of remote work programs.

(i) No director, officer or management employee of the Company or any of its Subsidiaries has made any written representations, promises or guarantees of any kind to any employee of the Company or any of its Subsidiaries regarding the employee’s continued employment with the Company or such Subsidiary or the terms of any employee’s compensation following the Closing.

(j) Each current employee of the Company or any of its Subsidiaries, and each former employee of the Company or any of its Subsidiaries that is named on a patent of the Company or its Subsidiaries, is a party to the standard form nondisclosure, confidentiality, invention assignment and non-solicit agreement between such employee and the Company or such Subsidiary. Section 3.20(j) of the Disclosure Schedules sets forth a correct and complete list of all of the Company’s and its Subsidiaries’ current and, to the Company’s Knowledge former, employees, independent contractors, consultants or other inventors who are entitled to receive compensation, remuneration or other consideration in connection with Company Intellectual Property or Company Products and the amount (in United States Dollars), formula or other method of calculation for any past, present or future monetary amounts payable to each such Person.

(k) No officer, director, agent, employee, consultant, or contractor of the Company or any of its Subsidiaries is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor (i) to engage in or continue or perform any conduct, activity, duties or practice relating to the business of the Company or its Subsidiaries, or (ii) to assign to the Company or its Subsidiaries or to any other Person any rights to any invention, improvement, or discovery.

(l) The Company and its Subsidiaries do not have any outstanding liability under the Worker Adjustment and Retraining Notification Act, or any similar applicable Law (collectively, the “WARN Act”), with respect to employee layoffs.

(m) Neither the Company nor any of its Subsidiaries are a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority or self-regulatory organization relating to employees or employment practices. Within the past three (3) years, neither the Company, its Subsidiaries, nor any of their respective executive officers have received any written notice of intent by any Governmental Authority or self-regulatory organization responsible for the enforcement of labor or employment Laws to conduct an investigation relating to the Company or its Subsidiaries, and no such investigation is in progress.

(n) All employees of the Company that work in the United States are legally entitled to work in the United States and all Persons employed by the Company in the United States during the past three (3) years were at the time of their employment, legally entitled to work in the United States. All employees of the Company’s Subsidiaries that work in Germany are legally entitled to work in Germany and all Persons employed by the Company’s Subsidiaries in Germany during the past three (3) years were at the time of their employment, legally entitled to work in Germany.

(o) Neither the Company nor its Subsidiaries are a party to any Contract with any employee that (i) restricts the right of the Company or its Subsidiaries to terminate the employment of such employee without cause or without a specified notice period, or (ii) obligates the Company or its Subsidiaries to pay severance or pay or accelerate any other payments (including acceleration of equity) or benefits to such employee upon termination of such employee’s employment with the Company or its Subsidiaries, in each case except as set forth in Section 3.21(o) of the Disclosure Schedules.

Section 3.21 Taxes.

(a) All Tax Returns required to be filed on or before the Closing Date by the Company or any of its Subsidiaries have been or will be duly and timely filed (subject to permitted extensions applicable to such filing). All such Tax Returns are true, complete and correct. The Company and its Subsidiaries have timely paid all Taxes due and (payable by it whether or not shown on any Tax Return (taking into account any applicable extensions)).

(b) No waiver of any statute of limitations relating to Taxes that has not since expired has been executed or given by the Company or any of its Subsidiaries.

(c) The unpaid Taxes of the Company or any of its Subsidiaries: (i) did not, as of the Most Recent Balance Sheet Date, exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Financial Statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time and changes in operating results through the Closing in accordance with the past custom and practice of the Company or such Subsidiary in filing their Tax Returns (and which accruals shall not exceed comparable amounts incurred in similar periods in prior years). Since the Most Recent Balance Sheet Date, neither the Company nor any Subsidiary has incurred any Liability for Taxes outside the ordinary course of business consistent with past practice adjusted for changes in operating results.

(d) The Company and each of its Subsidiaries has contributed, withheld and/or paid all contributions and Taxes, including payroll Taxes, required to have been contributed, withheld and/or paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, stockholder or other party prior to the same becoming delinquent. The Company and each of its Subsidiaries have complied with all information reporting and backup withholding provisions of applicable Law in all respects.

(e) No Tax Return of the Company or any of its Subsidiaries is currently under audit by any Governmental Authority and no Governmental Authority is now asserting or threatening against the Company or any of its Subsidiaries any deficiency or claim for additional Taxes.

(f) No written claim has been made by any Governmental Authority in any jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or such Subsidiary is, or may be, subject to Tax by that jurisdiction, and there is no basis for any such claim to be made.

(g) All deficiencies asserted, or assessments made, against the Company or any of its Subsidiaries as a result of any examinations by any Governmental Authority have been fully paid.

(h) The Company has delivered or made available to Parent copies of all federal, state, local and foreign income, franchise and similar Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by, the Company or any of its Subsidiaries for all Tax periods ending after December 31, 2014.

(i) There are no Encumbrances for Taxes (other than for current Taxes not yet delinquent) upon the assets of the Company or any of its Subsidiaries.

(j) Neither the Company nor any of its Subsidiaries is a party to, or bound by, any Tax indemnity, Tax-sharing or Tax allocation agreement, other than any agreement included in a Contract the principal purpose of which is not the indemnification, sharing or allocation of Taxes.

(k) The Company is not a party to, or bound by, any closing agreement or offer in compromise with any Governmental Authority.

(l) No private letter rulings, technical advice memoranda or similar agreement or rulings have been requested, entered into or issued by any Governmental Authority with respect to the Company or any of its Subsidiaries that could affect any period other than a Pre-Closing Tax Period.

(m) Neither the Company nor any of its Subsidiaries is nor has been a member of an affiliated, combined, consolidated or unitary Tax group for Tax purposes (other than a group the common parent of which is the Company). Neither the Company nor any of its Subsidiaries has any Liability for Taxes of any Person (other than itself) under Treasury Regulations Section 1.1502-6, or any corresponding provision of state, local or foreign Law (other than any other member of an affiliated, combined, consolidated or unitary Tax group the common parent of which is the Company), as transferee or successor, by Contract or otherwise (other than under a Contract the principal purpose of which is not the indemnification, sharing or allocation of Taxes).

(n) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending on or after the Closing as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of federal, state, local or foreign income Tax law) executed on or prior to the Closing, (iii) installment sale or open transaction disposition made on or prior to the Closing, (iv) prepaid amount received on or prior to the Closing other than in the ordinary course of business, or (v) election by the Company or such Subsidiary under Section 108(i) or Section 965 of the Code with respect to a transaction occurring prior to the Closing.

(o) The Company has never been, nor will it be at the Closing, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

(p) At no time during the five (5)-year period ending on the date hereof was the Company or any of its Subsidiaries a “distributing corporation” or “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code in any distribution intended to qualify under Section 355 of the Code.

(q) Neither the Company nor any of its Subsidiaries is or has been a party to any “reportable transaction” as defined in Section 6707A(c)(1) of the Code and Treasury Regulations § 1.6011-4(b) that has not been properly reflected in the appropriate income Tax Return.

(r) Neither the Company nor any of its Subsidiaries is a party to or partner in any joint venture, partnership or other arrangement that is treated as a partnership for United States federal income tax purposes.

(s) Neither the Company nor any of its Subsidiaries has agreed to, or is required to include in income, any adjustment pursuant to Section 482 of the Code (or similar provision of state, local or foreign law), nor has any claim been made in writing by any Governmental Authority proposing any such adjustment.

(t) Neither the Company nor any of its Subsidiaries is subject to Tax, is engaged in business or has a permanent establishment in any country other than the country in which it is formed. Neither the Company nor any of its Subsidiaries has not entered into a gain recognition agreement pursuant to Treasury Regulations § 1.367(a)-8. Neither the Company nor any of its Subsidiaries has transferred an intangible the transfer of which would be subject to the rules of Section 367(d) of the Code.

(u) Neither the Company nor any of its Subsidiaries has (i) deferred the employer’s share of any “applicable employment taxes” under Section 2302 of the Coronavirus Aid, Relief, and Economic Securities Act (“CARES Act”) (or any similar provision of state or local law), (ii) deferred any payroll tax obligations (including those imposed by Sections 3101(a) and 3201 of the Code) pursuant to or in connection with the Memorandum on Deferring Payroll Tax Obligation in Light of the Ongoing COVID-19 Disaster, dated August 8, 2020 or (iii) claimed any employee retention credits under the CARES Act.

For purposes of this Section 3.21, any reference to the Company or any of its Subsidiaries shall be deemed to include any Person that merged with or was liquidated or converted into the Company or such Subsidiary.

Section 3.22 Healthcare Matters. The Company and its Subsidiaries have operated and currently is in compliance with all applicable health care, product safety and public safety Laws. Neither the Company nor any of its Subsidiaries has received written notice or to the Company’s Knowledge oral notice of any Action from any Governmental Authority or Third Party alleging that any product, operation or activity is in violation of any health care, product safety or public safety Laws, and no such Action is threatened in writing. Neither the Company nor any of its Subsidiaries is a party to and does not have any ongoing reporting obligations pursuant to any corporate integrity agreement, deferred prosecution agreement, monitoring agreement, consent decree, settlement order, plan of correction or similar agreement imposed by any Governmental Authority. Additionally, neither the Company, its Subsidiaries, nor any of their respective employees, officers or directors has been excluded, suspended or debarred from participation in any FIGUS Countries, the United States, state, national, international, federal, foreign, regional or local health care program or human clinical research or is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.

Section 3.23 Transactions with Affiliates. No Affiliate of the Company, its Subsidiaries nor any Equityholder is currently (i) a party to any Contract with the Company or any of its Subsidiaries, which provides for the employment of, furnishing of goods or services by, rental of real or personal property from, borrowing money from or lending money to, or otherwise requiring payments to, any such Affiliate or (ii) the direct or indirect owner of an interest in any Person which is a competitor, supplier or customer of the Company or any of its Subsidiaries. Notwithstanding the foregoing, an Affiliate of the Company, any of its Subsidiaries or any Equityholder shall not be deemed a direct or indirect owner of an interest in any Person who is a competitor, supplier or customer of the Company or any of its Subsidiaries because it owns, directly or indirectly, solely as an investment, an interest in any such Person traded on any national securities exchange if such Affiliate or Equityholder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.

Section 3.24 Books and Records. The Books and Records of the Company and its Subsidiaries are complete and correct. The Books and Records reflect all meetings, and actions taken by written consent of, the Equityholders, the board of directors and any committees of the board of directors of each of the Company and each of its Subsidiaries.

Section 3.25 Bank Accounts. Section 3.25 of the Disclosure Schedules sets forth (a) the name of each bank, trust corporation or other financial institution and stock or other broker with which the Company or any of its Subsidiaries has an account, credit line or safe deposit box or vault, (b) the names of all Persons authorized to draw thereon or to have access to any safe deposit box or vault, and (c) the names of all Persons authorized by proxies, powers of attorney or other like instruments to act on behalf of the Company or any of its Subsidiaries in the matters concerning its business or affairs. All such proxies, powers of attorney or other like instruments are revocable.

Section 3.26 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of any Equityholder, the Company or any of its Subsidiaries.

Section 3.27 No Other Agreement. Other than for sales of assets in the ordinary course of business, neither the Company nor any of its Subsidiaries has entered into any currently effective Contract with respect to the sale or other disposition of any assets (including, without limitation, the Company’s or any of its Subsidiaries’ assets) or capital stock or other equity interests of the Company or any of its Subsidiaries, except as set forth in this Agreement.

Section 3.28 Full Disclosure. Neither this Agreement (including the Disclosure Schedule) nor any Transaction Document: (i) contains any representation or warranty by the Company or information regarding the Company or any of its Subsidiaries that is false or misleading with respect to any fact; or (ii) omits to state any fact necessary in order to make the representations and warranties regarding the Company or any of its Subsidiaries contained herein and therein, in light of the circumstances under which such representations and warranties were or will be made or provided, not false or misleading.

Section 3.29 Disclaimer of Representations and Warranties. The representations and warranties set forth in this ARTICLE III (as modified by the applicable sections of the Disclosure Schedule) constitute the sole and exclusive representations and warranties of the Company or any Person acting or purportedly acting on behalf of the Company or any of its Subsidiaries to the Parent in connection with the transactions contemplated by this Agreement, and any such other representations and warranties are hereby expressly disclaimed.

Section 3.30 Additional Seller Representations. Each Equityholder hereby represents and warrants to Parent and Merger Sub as follows:

(a) Equityholder has the power, capacity and authority to execute and deliver this Agreement and the other Transaction Documents to which he or she is a party, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby.

(b) This Agreement has been duly executed and delivered by the Equityholder and constitutes, and the other Transaction Documents when executed and delivered will constitute, the legal, valid and binding obligation of such Equityholder, enforceable against him or her in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and equitable principles related to or limiting creditors’ rights generally and by general principles of equity.

(c) As of the close of business on the date of this Agreement and on the Closing Date, the Equityholder owns directly with respect to the Company, the number of shares of Company Stock set forth next to the Equityholder’s name on Section 3.03 of the Disclosure Schedules free and clear of all Encumbrances, restrictions and claims of any kind, other than restrictions imposed by state or federal securities laws.

Section 3.31 Securities Law Representations. Each Equityholder who will acquire any shares of Parent Common Stock hereunder hereby represents and warrants to Parent and Merger Sub as follows:

(a) The Equityholder is acquiring shares of Parent Common Stock to be received in the Merger (collectively, the “Securities”) for investment for the Equityholder’s own account, not as a nominee or agent and not with a view to the resale or distribution of any part thereof, and the Equityholder has no present intention of selling, granting any participation in, or otherwise distributing the same.

(b) The Equityholder has reviewed copies of: (i) Parent’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019; (ii) Parent’s Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 2019, September 30, 2019, December 31, 2019; March 31, 2020, June 30, 2020, and September 30, 2020; and (iii) Parent’s Current Reports on Form 8-K filed with the SEC since September 30, 2019. The Equityholder has received all the information it considers necessary or appropriate for deciding whether to obtain the Securities as consideration in the transactions contemplated by this Agreement.

(c) The Equityholder acknowledges that he or she is able to fend for himself or herself, can bear the economic risk of owning the Securities, and has such knowledge and experience in financial or business matters that he or she is capable of evaluating the merits and risks of owning shares of Parent Common Stock. The Equityholder acknowledges that his or her ownership of the Securities involves a high degree of risk and that the Equityholder is able, without impairing his or her financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of his or her investment.

(d) The Equityholder is a “U.S. Person” within the meaning of Rule 902 and an “accredited investor” within the meaning of Rule 501 of the Securities Act, as presently in effect or, if not the Equityholder’s full legal name and address will be set forth in Section 3.31(d) of the Disclosure Schedules as of the Closing.

(e) The Equityholder understands that if the Securities are characterized as “restricted securities” under the federal securities laws because they are acquired from Parent in a transaction not involving a public offering, then under such laws and applicable regulations the Securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the Equityholder is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. THE EQUITYHOLDER UNDERSTANDS AND ACKNOWLEDGES HEREIN THAT AN INVESTMENT IN THE SECURITIES INVOLVES AN EXTREMELY HIGH DEGREE OF RISK AND MAY RESULT IN A COMPLETE LOSS OF HIS OR HER INVESTMENT. The Equityholder understands that as of the date of this Agreement the Securities have not been and, except as provided below in Section 5.11, the Securities will not be registered under the Securities Act nor registered or qualified in any state in which they are offered, and thus the Equityholder will not be able to resell or otherwise transfer the Securities unless they are registered under the Securities Act and registered or qualified under applicable state securities laws, or an exemption from such registration or qualification is available. The Equityholder has no immediate need for liquidity in connection with this investment, and does not anticipate that the Equityholder will be required to sell the Securities in the foreseeable future.

(f) Except as provided below in Section 5.11, the Securities will not be registered under the Securities Act and have not been and will not be registered or qualified in any state in which they are offered, and thus during the one-year period immediately following the Effective Time, the Equityholder agrees not to: (i) directly or indirectly, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), any of the Securities, or any securities convertible into or exercisable or exchangeable for any of the Securities; (ii) engage in any hedging or other transaction that is designed to or could reasonably be expected to lead to or result in a Disposition of the Securities, or any securities convertible into or exercisable or exchangeable for the Securities, or any other derivative security transaction the purpose or effect of which is to hedge or transfer to a third party all or any part of the risk of loss associated with the ownership of the Securities. Such prohibited hedging or other transactions include, without limitation, effecting any short sale or equity swap transaction or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Securities, or any securities convertible into or exercisable or exchangeable for the Securities. Without in any way limiting the foregoing, the Equityholder further agrees not to make any Disposition of all or any portion of the Securities unless and until:

i. There is then in effect a registration statement under the Securities Act covering such proposed Disposition and such Disposition is made in accordance with such registration statement; or

ii. The Equityholder shall have notified Parent of the proposed Disposition and shall have furnished Parent with a detailed statement of the circumstances surrounding the proposed Disposition and (b) upon request by Parent, shall have furnished to Parent an opinion of counsel in form and substance satisfactory to Parent that such Disposition will not require registration of such shares under the Securities Act.

(a) The Equityholder understands that the book entry or certificate evidencing the Securities may bear one or all of the following legends or substantially similar legends:

“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”

“THESE SECURITIES MAY BE OFFERED ONLY OUTSIDE OF THE UNITED STATES TO NON-U.S. PERSONS, PURSUANT TO THE PROVISIONS OF REGULATION S OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS.”

Any other legend required by the bylaws of Parent or by law, including, without limitation, applicable state securities laws.

(b) The Equityholder understands that the representations, warranties, covenants and acknowledgements set forth in this Section 3.31 constitute a material inducement to Parent and Merger Sub to enter into this Agreement.

(c) The Equityholder acknowledges that he or she is not relying upon any other Person in making his or her investment or decision to acquire the Securities.

Section 3.32 COVID-19 Pandemic. Except as set forth in Section 3.32 of the Disclosure Schedules, the Company has been able to continue its ordinary and usual course of day-to-day operations consistent with past custom and practice prior to the COVID-19 Pandemic.

Section 3.33 Total Liabilities. The Company and its Subsidiaries’ Liabilities as of December 31, 2020, as set forth in the 2020 Financial Statements delivered by Company to Parent pursuant to Section 2.08(c)(xiii) do not exceed Eight Million Two Hundred Fifty Thousand United States Dollars ($8,250,000) in the aggregate; and the Company and its Subsidiaries total Liabilities will not exceed Eight Million Two Hundred Fifty Thousand United States Dollars ($8,250,000) as of the Effective Time.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as each section or subsection of the representations and warranties below is qualified by the corresponding section or subsection of the Disclosure Schedules attached hereto, Parent and Merger Sub hereby represent and warrant to the Company as follows:

Section 4.01 Organization and Authority of Parent and Merger Sub. Each of Parent and Merger Sub is duly incorporated and in good standing under its jurisdiction of incorporation, and each has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Parent and Merger Sub of this Agreement and any other Transaction Document to which it is a party, the performance by Parent and Merger Sub of their obligations hereunder and thereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Parent and Merger Sub. This Agreement has been duly executed and delivered by Parent and Merger Sub, and (assuming due authorization, execution and delivery by each other party hereto) this Agreement constitutes a legal, valid and binding obligation of Parent and Merger Sub enforceable against Parent and Merger Sub in accordance with its terms. When each other Transaction Document to which Parent and Merger Sub is or will be a party has been duly executed and delivered by Parent and Merger Sub (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Parent and Merger Sub enforceable against it in accordance with its terms.

Section 4.02 Parent Common Stock. The Parent Merger Shares to be issued hereunder have been duly authorized for issuance to the Equityholders pursuant to this Agreement and, when such shares of Parent Merger Shares have been issued and delivered by Parent pursuant to this Agreement at Closing, such shares of Parent Merger Shares will be validly issued and fully paid and non-assessable. The issuance of shares of Parent Merger Shares under this Agreement is not subject to the preemptive, resale rights, rights of first refusal or other similar rights of any security holder of Parent.

Section 4.03 No Conflicts; Consents. The execution, delivery and performance by Parent and Merger Sub of this Agreement and the other Transaction Documents to which they are a party, and the consummation of the transactions contemplated hereby and thereby, do not: (a) conflict with or result in a violation or breach of, or default under, any provision of the Organizational Documents of Parent or Merger Sub; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Parent or Merger Sub; or require the consent, notice or other action by any Person under any Contract to which Parent or Merger Sub is a party.

Section 4.04 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Parent or Merger Sub.

Section 4.05 Legal Proceedings. There are no Actions pending or, to Parent’s or Merger Sub’s knowledge, threatened against or by Parent, Merger Sub, or any of their respective Affiliates that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred nor circumstances exist that may give rise or serve as a basis for any such Action.

Section 4.06 Intellectual Property. DetermaRx^TM and, to the Parent’s Knowledge, DetermaIO^TM do not infringe, violate, or misappropriate any Third Party Intellectual Property that will adversely affect the Earnout Consideration in any material respect.

Section 4.07 SEC Reports; Financial Statements. Parent has filed all reports, schedules, forms, statements and other documents required to be filed by Parent under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof since December 31, 2020 (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis in accordance with the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder. As of their respective dates, the SEC Reports complied with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of Parent included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of Parent as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

Section 4.08 Disclaimer of Representations and Warranties. The representations and warranties set forth in ARTICLE IV (as modified by the applicable sections of the Disclosure Schedule) constitute the sole and exclusive representations and warranties of the Parent and Merger Sub or any Person acting or purportedly acting on behalf of the Parent and Merger Sub to the Company in connection with the transactions contemplated by this Agreement, and any such other representations and warranties are hereby expressly disclaimed.

ARTICLE V

COVENANTS

Section 5.01 Conduct of Business Prior to the Closing. From the date hereof until the Closing, except as otherwise provided in this Agreement, as set forth on Schedule 5.01 or consented to in writing by Parent, which consent shall not be unreasonably withheld, delayed, or conditioned, the Company shall, and shall cause its Subsidiaries to: (x) conduct the business of the Company and its Subsidiaries, in the ordinary course of business consistent with past practice in all material respects; and (y) use commercially reasonable efforts to maintain and preserve intact, in all material respects, the business organization of the Company and its Subsidiaries and to preserve the rights, franchises, goodwill and relationships with its employees, customers, lenders, suppliers, and others having business relationships with the Company and its Subsidiaries. Without limiting the foregoing, from the date hereof until the Closing Date, except as set forth on Schedule 5.01, neither the Company nor any of its Subsidiaries shall, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed, or conditioned:

(a) amend or otherwise change the Organizational Documents of the Company or any of its Subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or any of its Subsidiaries;

(b) issue, sell, transfer, pledge, dispose of or encumber, or authorize the issuance, sale, transfer, pledge, disposition or encumbrance of, or redeem, purchase or otherwise acquire, any shares of capital stock or other equity of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest of, the Company or any of its Subsidiaries (other than for Permitted Encumbrances);

(c) sell, transfer, pledge, dispose of or encumber, or authorize the sale, transfer, pledge, disposition or encumbrance of, any material assets or properties of the Company or any of its Subsidiaries (other than in the ordinary course of business consistent with past practice in nature and amount and other than for Permitted Encumbrances);

(d) split, combine or reclassify any of its capital stock or other securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of the capital stock or other equity interests of the Company or any of its Subsidiaries;

(e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or file a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition under any similar Law;

(f) form any Subsidiary or acquire (by merger, consolidation, acquisition of stock or other securities or assets or otherwise) any equity or other interest or make any other investment in any corporation, limited liability company, partnership, joint venture or other business organization or division thereof;

(g) incur any Indebtedness or issue any debt securities or assume, guaranty or endorse or otherwise as an accommodation become responsible for the obligations of any Person, or make any loans, advances or enter into any financial commitments, in each case except in the ordinary course of business consistent with past practice;

(h) increase in any manner by more than five percent (5%) the compensation (including, bonus) or fringe benefits payable or to become payable to its officers, individual contractors, directors or employees in the ordinary course of business;

(i) grant any severance or termination pay or incentive compensation to, or enter into or amend any employment or severance agreement with, any individual contractor, director, officer or other employee, or increase the funding for, establish, adopt, enter into or amend any Benefit Plan, except as required by Law, pursuant to any Benefit Plan in place on the date hereof, accelerate the vesting of, pay or agree to pay any severance, termination or incentive compensation to any director, officer, employee or consultant, or provide loans to any employee, individual contractor officer or director;

(j) make any change in the prices at which any Company Products or services are sold or distributed, or offer any rebates, discounts, commissions, incentives or inducements for the purchase of any Company Products or services that are different from those rebates, discounts, commissions, incentives or inducements offered by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;

(k) create, incur, suffer to exist or assume any Encumbrance (other than Permitted Encumbrances) on any assets or properties of the Company or any of its Subsidiaries;

(l) hire, promote or terminate any employee or individual contractor;

(m) change any accounting policies or procedures (including procedures with respect to reserves, revenue recognition, payments of accounts payable and collection of accounts receivable) unless required by statutory accounting principles;

(n) accelerate or delay collection of any notes or accounts receivable of the Company or any of its Subsidiaries in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice;

(o) delay or accelerate payment of any account payable or other Liability of the Company or any of its Subsidiaries beyond or in advance of its due date or the date when such account payable or other Liability would have been paid in the ordinary course of business consistent with past practice;

(p) (i) terminate, modify or amend any Material Contract or (ii) enter into any contract that would have been a Material Contract if in effect on the date hereof;

(q) commit to undertake any capital expenditures, other than any capital expenditures previously contracted for or set forth in a budget disclosed in writing to Parent;

(r) make, change or revoke any material Tax election, change a material annual accounting period, file any material amended Tax Return, enter into any material closing agreement, settle any Tax Claim or assessment relating to the Company or any of its Subsidiaries in excess of the amount if any accrued therefor in the Financial Statements, expressly surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax Claim or assessment relating to the Company or any of its Subsidiaries in excess of the accruals for such Taxes reflected in the Financial Statements;

(s) purchase, acquire, lease or license any assets in any single transaction or series of related transactions not covered by Section 5.01(q) having a fair market value in excess of Five Thousand United States Dollars ($5,000) in the aggregate other than in the ordinary course of business;

(t) write-down or write-up the value of any asset by more than Five Thousand United States Dollars ($5,000);

(u) settle any other Actions asserting Liabilities in excess of Five Thousand United States Dollars ($5,000), individually or in the aggregate, against any other Person;

(v) declare, set aside or pay any dividend or other distribution (whether in cash, stock or other securities or property or any combination thereof) in respect of any of its capital stock or other equity interests;

(w) transfer or license to or from any Person any Intellectual Property (other than non-exclusive end-user licenses in connection with the sale or license of Company Products in the ordinary course of business consistent with past practice), or transfer or provide a copy of any Company Source Code to any Person (including any current or former employee or consultant of the Company or any of its Subsidiaries or any contractor or commercial partner of the Company or any of its Subsidiaries other than providing access to Company Source Code to current employees and consultants of the Company or any of its Subsidiaries involved in the development of the Company Products on a need to know basis, in the ordinary course of business consistent with past practices);

(x) enter into or amend any agreement pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company’s or any of its Subsidiaries’ products, services, technology, Intellectual Property or business, or containing any non-competition covenants restricting its or Parent’s business activities;

(y) after the date of this Agreement, enter into any transaction with, make any payment to or for the benefit of (other than salary and benefits to employees in the ordinary course of business ), transfer value of any nature (whether in cash or in kind) to, assume any Liability from, or waive, forgive, defer, release or discount any amounts owing from, any Equityholder or any director, officer or employee of the Company or any of its Subsidiaries (other than as expressly contemplated by this Agreement);

(z) enter into a new line of business or abandon or discontinue existing lines of business;

(aa) enter into, modify, amend or terminate any Contract relating to Intellectual Property other than any Contracts under which a non-exclusive license of unmodified, off-the-shelf software in object code form is granted to the Company or any of its Subsidiaries or access to a “software-as-a-service” offering is provided to the Company or any of its Subsidiaries, in each case for a fee of no more than Five Thousand United States Dollars ($5,000); or

(bb) authorize or announce an intention to do any of the foregoing, or agree or enter into any Contract to do any of the foregoing.

Section 5.02 Access to Information; Confidentiality.

(a) From the date hereof until the Closing, the Company shall, upon reasonable notice, (i) afford Parent and its Representatives commercially reasonable access during normal business hours to inspect all of the properties, assets, premises, and Books and Records of the Company and its Subsidiaries; and (ii) furnish Parent and its Representatives with such financial, operating and other data and information related to the Company or any of its Subsidiaries as Parent or any of its Representatives may request.

(b) From and following the date hereof, unless this Agreement is terminated in accordance with the terms hereof, the Company and its Representatives covenant and agree not to divulge or make use of any Trade Secrets or other confidential information of the Company or any of its Subsidiaries or the business of the Company or any of its Subsidiaries other than to disclose such secrets and information to Parent or its Representatives and to such other Persons who are subject to customary nondisclosure and non-use agreements in the ordinary course of operating the business of the Company and its Subsidiaries consistent with past practice.

Section 5.03 Supplement to Disclosure Schedules. From time to time prior to April 1, 2021, the Company shall have the right (but not the obligation) to supplement or amend the Disclosure Schedules hereto with respect to any matter hereafter arising or of which it becomes aware after the date hereof (each a “Schedule Supplement”). Any disclosure in any such Schedule Supplement shall not be deemed to have cured any inaccuracy in or breach of any representation or warranty contained in this Agreement for purposes of the termination rights contained in this Agreement or of determining whether or not the conditions set forth in Section 7.02 have been satisfied. Parent may elect to terminate this Agreement any time before April 29, 2021 after its due diligence review of the Disclosure Schedules or any such Schedule Supplement.

Section 5.04 No Solicitation of Other Bids.

(a) The Company and its Representatives shall not, and shall cause the Company’s Subsidiaries not to, directly or indirectly: (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. The Company and its Subsidiaries shall immediately cease and cause to be terminated, and shall cause all of its and their Representatives to immediately cease and cause to be terminated, any existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than Parent or any of its Affiliates) concerning (i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company or any of its Subsidiaries; (ii) the issuance or acquisition of shares of capital stock or other equity securities of the Company or any of its Subsidiaries; (iii) the sale, lease, exchange or other disposition of Company Products other than in the ordinary course of business consistent with past practices; (iv) a sale of all or substantially all of the Company’s and its Subsidiaries’ assets; or (v) an exclusive license of any or all Company Intellectual Property.

(b) In addition to the other obligations under this Section 5.04, the Company shall, and shall cause its Subsidiaries to, promptly (and in any event within twenty-four (24) hours after receipt thereof by the Company, its Subsidiaries or their respective Representatives) advise Parent orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal.

(c) The Company agrees that the rights and remedies for noncompliance with this Section 5.04 shall include payment of Two Hundred Fifty Thousand United States Dollars ($250,000) to Parent and having such provision specifically enforced, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Parent and that money damages would not provide an adequate remedy to Parent.

Section 5.05 Notice of Certain Events.

(a) From the date hereof until the Closing, the Company shall notify the Parent in writing of:

(i) any fact, circumstance, event or action the existence, occurrence or taking of which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect affecting the Company or its Subsidiaries or resulted in, or would reasonably be expected to result in, any representation or warranty made by Company or an Equityholder hereunder not being true and correct;

(ii) the failure of the Company to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement;

(iii) any Action, suit, claim, investigation or proceeding commenced, or to the Company’s Knowledge threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries; and

(iv) any written notice or other communication from any Person or Governmental Authority alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby.

Parent’s receipt of information pursuant to this Section 5.05(a) shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Company and the Equityholders in this Agreement.

Section 5.06 Publicity. Prior to the Closing, the Company shall not, nor shall any of its Subsidiaries, Affiliates or Representatives (including accountants, lenders, counsel or investment bankers), without the prior written consent of Parent, issue any press release announcing the execution of this Agreement or the transactions contemplated hereby, or the Closing hereunder, otherwise make any public statements regarding the transactions contemplated hereby or otherwise publicly disclose any of the contents of this Agreement.

Section 5.07 Required Actions.

(a) The Company and Parent shall, as promptly as possible, (i) make, or cause to be made, all filings and submissions required under any applicable Law (provided, that neither the Company, on the one hand, nor Parent, on the other hand, shall be in breach of the foregoing covenant if such party’s failure to timely file is a result of the other party’s failure to provide the requisite materials and signatures or otherwise take the requisite steps necessary for such filing), and (ii) thereafter use commercially reasonable efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities whether federal, state, local, or foreign, which may be required in connection with the consummation of the transactions contemplated under this Agreement and the other Transaction Documents. The Company and its Subsidiaries and Representatives shall cooperate with Parent and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The Parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.

(b) The Company shall deliver all notices to, and obtain all consents from, all Third Parties that are expressly set forth in Section 5.05 of the Disclosure Schedules.

(c) Without limiting the generality of the parties’ undertakings pursuant to Section 5.07(a) and Section 5.07(b), each of the parties hereto shall use commercially reasonable efforts to:

(i) respond promptly to any inquiries and furnish any additional information reasonably requested by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated by this Agreement or any Transaction Document;

(ii) resolve any objections that may be asserted by the applicable Governmental Authority as promptly as practicable and avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any Transaction Document; and

(iii) in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any Transaction Document has been issued, to have such Governmental Order vacated or lifted.

Section 5.08 Confidentiality; No Insider Trading.

(a) From and after the date hereof until the Closing, each of Parent, Merger Sub, the Company, the Equityholders and the Equityholder Representative shall, and shall cause each of their respective Affiliates to, keep confidential and not directly or indirectly reveal, report, publish, disclose or transfer any confidential or proprietary information regarding the Company or any of its Subsidiaries, on the one hand, or Parent, Merger Sub or their Affiliates, on the other hand, and the negotiations preceding this Agreement, the terms and existence of this Agreement and the Transaction Documents and all documents and information obtained by any party from another party in connection with the transactions contemplated hereby (collectively, the “Confidential Information”) and will not trade Parent stock while in possession of the Confidential Information and will not use such Confidential Information for their own benefit or for the benefit of any other Person (other than the Company, its Subsidiaries, Parent or Merger Sub), except with prior written consent of the Parent and (i) to the extent that it is reasonably necessary to disclose the Confidential Information to obtain approvals from any Governmental Authority, (ii) for disclosures otherwise made in satisfaction of any of the obligations under this Agreement or (iii) to the extent required by applicable Law (including securities Laws of any jurisdiction and rules and regulations of any applicable stock exchange).

(b) From and after the Closing, each of the Equityholders and the Equityholder Representative shall, and shall cause each of their respective Affiliates and Representatives to, keep confidential and not directly or indirectly reveal, report, publish, disclose or transfer any Confidential Information of the Company, Parent, Merger Sub or their Affiliates and will not trade Parent stock while in possession of the Confidential Information and will not use such Confidential Information for their own benefit or for the benefit of any other Person (other than the Company, Parent or Merger Sub), except with the prior written consent of the Parent and (i) to the extent that it is reasonably necessary to disclose the Confidential Information to obtain approvals from any Governmental Authority, (ii) for disclosures otherwise made in satisfaction of any of the obligations under this Agreement or (iii) to the extent required by applicable Law (including securities Laws of any jurisdiction and rules and regulations of any applicable stock exchange).

(c) Each party shall be responsible for any failure of its Affiliates to keep confidential and not directly or indirectly reveal, report, publish or disclose any Confidential Information in accordance with this Section 5.08.

Section 5.09 Notice to Equityholders. Promptly following, but in no event more than fifteen (15) Business Days after, the date hereof, the Company shall prepare and mail a notice (the “Information Statement”) to every Equityholder as of the applicable record date that did not consent to the Merger as part of the Requisite Equityholder Approval. The Information Statement shall: (i) include statements to the effect that the Company Board determined that the Merger is advisable in accordance with Section 251 of DGCL and in the best interests of the Equityholders and approved and adopted this Agreement, the Merger and the other transactions contemplated hereby; and (ii) notify such Equityholders of their dissent and appraisal rights pursuant to Section 262 of DGCL. Parent shall be given at least five (5) Business Days to review and comment on all materials before they are submitted to the Equityholders in accordance with this Section 5.09. The Information Statement shall include therewith a copy of Section 262 of DGCL and all such other information as Parent shall reasonably request.

Section 5.10 Release; Waiver. In further consideration of the transactions contemplated hereby, effective as of the Effective Time, each Equityholder, by executing this Agreement or by executing and delivering a Joinder Agreement (any such Seller, a “Releasing Equityholder”), on behalf of itself and its predecessors and assigns, hereby irrevocably and unconditionally releases, waives and holds each of the Company, its Subsidiaries, Parent and Merger Sub, their respective Affiliates, predecessors and assigns, and their respective directors (or persons in similar positions), officers, employees, stockholders, equity holders and agents (any such Person, a “Releasee”) harmless from and against any and all claims of any nature in any capacity (the “Released Claims”) arising at or prior to the Effective Time (the “Release”), but excluding (a) any of such Releasing Equityholder’s rights under this Agreement or any Transaction Document and (b) any normal, recurring ordinary course wages or accrued employment benefits or like payments or benefits arising out of such Releasing Equityholder’s services to the Company or any of its Subsidiaries prior to the Closing Date. It is further agreed and understood that the Release is a full and final release of all Released Claims whether known or unknown, fixed or contingent, manifested or unmanifested. Each Releasing Equityholder hereby irrevocably covenants to refrain from, directly or indirectly, asserting any Released Claim, or commencing, instituting, or causing to be commenced, any Action of any kind against any Releasee, based upon any matter released hereby. Each Releasing Equityholder hereby waives the protection of any provision of any law that would operate to preserve claims that are unknown as of the Effective Time or at any other time. Each Releasing Equityholder specifically waives the benefit of the provisions of Section 1542 of the Civil Code of California, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

As to each and every Released Claim released hereunder, each Releasing Equityholder also waives the benefit of each other similar provision of applicable Law, if any, pertaining to general releases after having been advised by its legal counsel with respect thereto. Each Releasing Equityholder acknowledges that the Release made in this Section 5.10 is a material inducement to Parent’s and Merger Sub’s decision to enter into this Agreement and to consummate the transactions contemplated hereby. Each Releasing Equityholder represents that it has not made any assignment or transfer of any Released Claim or other matter covered by this Section 5.10, and that it has consulted with its own independent legal counsel with respect to the Release.

Section 5.11 Registration. If the Parent Merger Shares are not already registered pursuant to an effective Registration Statement with an effectiveness period of two years, then within ninety (90) days after receipt of the information necessary to file the Registration Statement, Parent shall, at its election, file a Registration Statement on Form S-4 for the issuance of Parent Merger Shares, Parent Earnout Shares or other Parent Common Stock pursuant to this Agreement, or, a Registration Statement on Form S-3 to register the resale by Equityholders of Parent Merger Shares, Parent Earnout Shares or other Parent Common Stock issued to Equityholders pursuant to this Agreement (either such form, the “Closing Registration Statement”, and such forms generally, a “Registration Statement”), and to use reasonable efforts to cause the Closing Registration Statement to be declared effective under the Securities Act as soon as practicable after the filing thereof (if not already effective); provided, however, that if any Equityholder fails to timely provide Parent with information required to be included or updated in a Registration Statement, then such Equityholder and its Securities may be excluded from the Registration Statement until such time as Parent files a new Registration Statement and Equityholder provides all updated and required information. During the period of time from the date on which the Closing Registration Statement is declared effective under the Securities Act until the second (2nd) anniversary of such effective date, Parent shall: (i) use reasonable efforts to prepare and file with the SEC such amendments and supplements to the Closing Registration Statement as may be necessary or appropriate to keep the Closing Registration Statement current and continuously effective; and (ii) cause the prospectus used in connection with the Closing Registration Statement to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act. If, at any time, and from time to time, that Parent is required to pay Earnout Consideration under this Agreement, and Parent pays such Earnout Consideration in Parent Common Stock, and (a) the number of registered shares of Parent Common Stock that may be issued under a Registration Statement is insufficient to pay such Earnout Consideration, or (b) the remaining effectiveness period of the then current Registration Statement is less than twelve (12) months, Parent shall file a Registration Statement (the “Earnout Registration Statement”) to register the resale of such Parent Earnout Shares by the Equityholders, and to cause each such Earnout Registration Statement to be declared effective under the Securities Act as soon as practicable after the filing thereof, but no later than the date that is sixty (60) days after the applicable Milestone Agreement Date; provided, however, that if any Equityholder fails to timely provide Parent with information required to be included or updated in a Registration Statement, then such Equityholder and its Securities may be excluded from the Registration Statement until such time as Parent files a new Registration Statement and Equityholder timely provides all updated and required information. During the period of time from the date on which a Earnout Registration Statement is declared effective under the Securities Act until the second (2nd) anniversary of such effective date, Parent shall: (i) use reasonable efforts to prepare and file with the SEC such amendments and supplements to each such Earnout Registration Statement as may be necessary or appropriate to keep such Earnout Registration Statement current and continuously effective; and (ii) cause the prospectus used in connection with such Earnout Registration Statement to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act. The Exchange Agent shall have the authority to restrict the total number of Parent Merger Shares, Parent Earnout Shares and/or Parent Common Stock to be sold by all Equityholders under a Registration Statement on any trading day, if such total number of Parent Merger Shares, Parent Earnout Shares and/or Parent Common Stock exceeds ten percent (10%) of the daily trading volume of Parent Common Stock on the NYSE American, and Equityholders shall comply with all volume limitations and other trading restrictions set forth in the Transaction Documents, Registration Statement and Laws applicable to their resale of Equity Consideration. In the event of (i) any request by the SEC or any other Governmental Authority for amendments or supplements to the Registration Statement or related prospectus or for additional information; (ii) the issuance by the SEC or any other Governmental Authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) the receipt by Parent of any notification with respect to the suspension of the qualification (or exemption from qualification) of any portion of the Equity Consideration for sale in any jurisdiction in which they have been qualified for sale or the initiation of any proceeding for such purpose; or (iv) any event or circumstance that necessitates the making of any changes in the Registration Statement or related prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the related prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Parent shall deliver a certificate in writing to Equityholder Representative (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of the Suspension Notice, the Equityholder Representative shall provide copies of the Suspension Notice to the Equityholders, and the Equityholders must refrain from selling any securities of Parent pursuant to the Registration Statement until Parent prepares and files a supplemented or amended prospectus, or until Parent notifies the Equityholder Representative that the then current prospectus may be used.

Section 5.12 Requisite Equityholder Approval. On or before March 5, 2021, the Company and the Equityholder Representative shall deliver to Parent and Merger Sub the Requisite Equityholder Approval duly executed by the Equityholders.

Section 5.13 Liability Insurance; Director and Officer Indemnification. Prior to the Closing, the Company shall convert the Company’s existing directors’ and officers’ liability insurance coverage for the Company’s directors and officers to a fully paid-up run-off policy that shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to the insured persons than, the directors’ and officers’ liability insurance coverage presently maintained by the Company (the “Tail Policy”). From and after the Closing Date until the sixth (6th) anniversary thereof, neither Parent nor the Surviving Corporation shall, without the written consent of the Equityholder Representative, take any action to cancel, amend or shorten the term of the Tail Policy as in effect immediately prior to the Closing in a manner that would adversely affect the rights thereunder of the indemnified parties in any material respect, unless such modification is required by applicable Law.

Section 5.14 Discontinuation of Company Products. If Parent or the Surviving Corporation discontinues offering Company Products other than for Commercial Cause during the applicable Earnout Period for such product, then Parent will pay the Terminal Value for the discontinued product as an Additional Payment.

Section 5.15 Prohibition on Section 338(g) Election. Neither Parent nor the Surviving Corporation shall make, cause to be made, or permit to be made an election under Section 338(g) of the Code with respect to the Merger or the acquisition of Company stock contemplated by this Agreement.

ARTICLE VI

TAX MATTERS

Section 6.01 Tax Returns.

(a) The Equityholder Representative will use reasonable efforts to prepare or cause to be timely prepared (through the Company’s accountant) all income Tax Returns for the Company and its Subsidiaries solely relating to a Pre-Closing Tax Period which are due (taking into account applicable extensions) after the Closing Date and the Equityholder Representative and Parent shall use reasonable efforts to cause the Company and its Subsidiaries to file such Tax Returns as finally prepared under the direction of Equityholder Representative pursuant to this Section 6.01(a). The Equityholder Representative will permit Parent and Surviving Corporation to review and comment on each such Tax Return. The Equityholder Representative (on behalf of the Equityholders) shall promptly pay to Parent the amount of such Taxes reflected on such Tax Returns at least five (5) Business Days prior to the filing due date for such Tax Return, except to the extent included in the calculation of Accrued Pre-Closing Tax Liabilities. Any Tax Returns prepared pursuant to this Section 6.01(a) for any taxable period ending on or before December 31, 2020 shall be prepared in a manner consistent with the prior Tax Returns of the Company and its Subsidiaries, unless otherwise required by applicable Law, generally accepted accounting principles or the Parent’s auditors.

(b) To the extent that any Tax Returns of the Company or any of its Subsidiaries relate to (x) a Pre-Closing Tax Period and are not income Tax Returns described in Section 6.01(a), or (y) any Straddle Period, Parent will use commercially reasonable efforts to prepare or cause such Tax Returns to be prepared and file or cause to be filed any such Tax Returns. If and to the extent that the Equityholders have any liability for Taxes reflected on any Tax Return prepared pursuant to this Section 6.01(b), (A) such Tax Return shall be prepared in a manner consistent with the prior Tax Returns of the Company and its Subsidiaries, unless otherwise required by applicable Law, generally accepted accounting principles, or the Parent’s auditors, (B) Parent will permit the Equityholder Representative to review and comment on each such Tax Return described in the preceding sentence, and will consider in good faith all of the Equityholder Representative’s reasonable comments, and (C) the Equityholder Representative (on behalf of the Equityholders) shall promptly pay to Parent the amount of Pre-Closing Taxes reflected on such Tax Return at least five (5) Business Days prior to the filing due date for such Tax Return except to the extent included in the calculation of Accrued Pre-Closing Tax Liabilities. For purposes of this Agreement, in the case of any Taxes that are payable for a Straddle Period, the portion of such Tax that relates to the portion of the Straddle Period ending on the Closing Date will (i) except as to Taxes described in clause (ii), be determined based on a “closing of the books” of the Company and its Subsidiaries as of the close of the Closing Date; provided, however, that any income, gain, deduction, loss or other Tax items attributable on the Closing Date to transactions outside the ordinary course of business following the Closing Date shall be allocable to the portion of the Straddle Period commencing after the Closing Date; and (ii) in the case of an ad valorem Tax on real or personal property or a franchise Tax not based on gross or net income, be determined by multiplying the amount of such Tax for the entire period by a fraction the numerator of which is the number of calendar days in the portion of the taxable period ending as of the Closing Date and the denominator of which is the number of calendar days in the entire taxable period.

Section 6.02 Contests. Parent shall give written notice to Equityholder Representative of the receipt of any written notice by the Company, its Subsidiaries, Parent or any of Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Parent for Pre-Closing Taxes (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Parent’s right to indemnification hereunder except to the extent that the Equityholders are actually materially prejudiced by such failure (but only to the extent of such prejudice). The Equityholder Representative shall, diligently and in good faith, and at its sole cost and expense, control the contest or resolution of any Tax Claim that relates solely to Pre-Closing Taxes; provided, that Parent or Surviving Corporation shall be entitled to jointly participate in the defense of such claim and to employ counsel of their choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Parent and/or Surviving Corporation. On behalf of Surviving Corporation, Parent shall, diligently and in good faith, control the contest or resolution of any other Tax Claim, including any Tax Claim relating to a Straddle Period; provided, that Equityholder Representative on behalf of the Equityholders shall be entitled to jointly participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Equityholders. For purposes of this Section 6.02, the right to jointly participate in the defense of a Tax Claim includes (i) the right to receive, concurrently with or promptly following Parent’s receipt, notice and copies of all correspondence received from the Governmental Authority and otherwise to be promptly and reasonably apprised of the initiation and status of such Tax Claim and (ii) the right to receive copies and reasonable opportunity to review and comment on any written materials to be provided to the Governmental Authority. In the event of any conflict or inconsistency between this Section 6.02 and Section 9.05, this Section 6.02 shall control with respect to all matters relating to Taxes.

Section 6.03 Refunds. Any Tax refunds received by Surviving Corporation or any of its Subsidiaries following the Closing Date and any amounts credited against Taxes to which the Surviving Corporation or any of its Subsidiaries becomes entitled following the Closing Date that relate to Taxes paid by the Company or any of its Subsidiaries with respect to any period (or portion thereof) ending on or before the Closing Date or taken into account as Accrued Pre-Closing Tax Liabilities (but excluding any Tax refund that arises as a result of a carryback of a loss or other Tax benefit from a taxable period (or portion thereof) beginning after the Closing Date to a Pre-Closing Tax Period) shall be added to the Equityholder Representative Expense Fund for use by the Equityholder Representative to perform its obligations pursuant to this Agreement and other Transaction Documents, which amount shall be net of any Taxes incurred on receipt of any such Tax refund, and less any costs and expenses incurred in obtaining such refund. In the event any Tax refund is subsequently disallowed or determined to be an amount less than the amount taken into account to make a payment pursuant to this Section 6.03, by a Governmental Authority, the Equityholder Representative shall promptly return such excess to Surviving Corporation or Parent along with any applicable interest and penalties.