`
`Exhibit E
`Specific Indemnity
`
`
`Any Losses paid by the Parent Indemnified Parties, or any of them (including the Surviving
`Corporation or the Surviving LLC), directly or indirectly, resulting from, or arising out of the Action
`pending in the U.S. District Court for the District of Delaware captioned Fulfillium, Inc. v. ReShape
`Medical, Inc., Civil Action No. 17-453-RGA (the “Fulfillium Litigation”).
`
`Notwithstanding anything to the contrary set forth in the Agreement, including Section 5.5
`thereof, Parent, the Company and the Company Holder Committee agree and acknowledge that, until the
`date the Fulfillium Litigation is finally resolved, which for this purpose shall include a withdrawal or
`dismissal of the case with or without prejudice (i) the Fulfillium Litigation will be deemed to be an
`unresolved claim for indemnification made by the Parent Indemnified Parties, (ii) the Escrow Agent shall
`retain all of the Escrow Shares and not release any Escrow Shares to the Company Holder Committee or
`any Company Holder, (iii) Parent and the Company Holder Committee, upon Parent’s request, will
`deliver joint written instructions to the Escrow Agent confirming the matters agreed to in (i) and (ii)
`above, and (iv) Parent shall use commercially reasonable efforts to finally resolve the Fulfillium
`Litigation as soon as reasonably practicable.
`
`The Company Holder Committee agrees and acknowledges that, pursuant to Section 5.7(a) of the
`Agreement, because the Fulfillium Litigation is a Third Party Claim and seeks an injunction or other
`equitable relief, the Company Holder Committee does not have the right to defend against the Fulfillium
`Litigation. Accordingly, pursuant to Section 5.7(c) of the Agreement, Parent will conduct the defense of
`such claim. The Fulfillium Litigation shall, at all times, be managed under the direction and control of a
`committee of the Board of Directors of Parent consisting of
` (or a replacement
`Designated Director as designated by the Company Holder Committee) and one member of the Board of
`Directors of Parent who is not a Designated Director (as designated by a majority of the members of the
`Board of Directors of Parent who are not Designated Directors); provided, however, that the foregoing
`shall not limit the rights of the Company Holder Committee set forth in Article V of the Agreement,
`including Section 5.7(c) thereof.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`RESHAPE 1031
`
`