Common use of Calculation of Damages; Insurance Proceeds and Tax Benefits Clause in Contracts

Calculation of Damages; Insurance Proceeds and Tax Benefits. The amount of any Damages that are subject to indemnification under this Article VI shall be calculated net of: (i) any Tax benefit received or receivable by the Purchaser or any Affiliate of the Purchaser in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; and (ii) the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or receivable by the Purchaser or any Affiliate of the Purchaser in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages. If the Purchaser or any Affiliate of the Purchaser receives a Tax benefit after an indemnification payment is made, the Purchaser shall promptly pay the amount of such Tax benefit to the applicable Selling Parties at such time or times as and to the extent that such Tax benefit is realized. The Purchaser shall seek, and shall cause each of its Affiliates (including the Company) to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder. In the event that any insurance or other recovery is made by the Purchaser or any Affiliate of the Purchaser with respect to any Damages for which the Purchaser has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the applicable Selling Parties. If, following the Closing, the Company (or any Person who was an employee of any of the Company as of or prior to the Closing) validly asserts a claim under applicable workers’ compensation insurance policies of the Company or any of its Affiliates in effect prior to the Closing: (x) the Purchaser shall ensure that proper notice of such claim (and any required information relating to such claim) is timely provided in accordance with the applicable insurance policy (and shall simultaneously with providing such notice and information to the insurer cause the same to be provided to the Selling Parties); (y) the Purchaser (and/or the Company) shall be solely responsible for all deductibles applicable to such claim; and (z) none of the Purchaser, the Company or any other Affiliate of the Purchaser shall commence any Legal Proceeding against the insurer without the prior written consent of the Selling Parties (such consent not to be unreasonably withheld or delayed).

Calculation of Damages; Insurance Proceeds and Tax Benefits. The amount of any Damages that are subject to indemnification under this Article VI Section 6 shall be calculated net of: (i) any net Tax benefit actually received or receivable by the Purchaser any Indemnitee or any Affiliate of an Indemnitee as a cash reduction in Taxes payable in the Purchaser year such Damages are incurred or in the immediately preceding year in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; and (ii) the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received or receivable by the Purchaser any Indemnitee or any Affiliate of the Purchaser an Indemnitee in connection with such Damages (net of any increase in premium or any cost of the events or circumstances giving rise or otherwise related to such Damagesrecovery attributable thereto). If the Purchaser any Indemnitee or any Affiliate of the Purchaser an Indemnitee receives a net Tax benefit of the type described in the first sentence of this Section 6.4(b) after an indemnification payment is made, the Purchaser such Indemnitee shall promptly pay the amount of such net Tax benefit to the applicable Selling Parties Indemnitor at such time or times as and to the extent that such Tax benefit is realized. The Purchaser Indemnitees shall seek, and shall cause each of its Affiliates (including including, with respect to any Purchaser Indemnitee, the Acquired Company) to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder. In the event that any insurance or other recovery is made by the Purchaser any Indemnitee or any Affiliate of the Purchaser an Indemnitee with respect to any Damages for which the Purchaser such Indemnitee has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnitor. Notwithstanding anything to the contrary contained in this Agreement, Purchaser acknowledges and agrees that none of it, the Acquired Company, any of its other Affiliates or any Person who was an employee of the Acquired Company as of or prior to the Closing shall have any rights or remedies under, or any access to coverage provided by, any insurance policies in effect prior to the Closing, except to the extent that: (A) the insurance policy is held in the name of, and only provides coverage for, the Acquired Company; (B) Seller, in its sole discretion, agrees to provide any such employee with access to such insurance; or (C) access to workers’ compensation insurance policies in effect prior to the Closing must remain available to the Acquired Company and/or any such employees under applicable Selling PartiesLegal Requirements. If, following the Closing, the Acquired Company (or any Person who was an employee of any of the Acquired Company as of or prior to the Closing) validly asserts a claim under applicable workers’ compensation insurance policies of the Company Seller or any of its Affiliates in effect prior to the Closing: (x) the Purchaser and Seller shall use commercially reasonable efforts to ensure that proper notice of such claim (and any required information relating to such claim) is timely provided in accordance with the applicable insurance policy (and Purchaser shall simultaneously with providing such notice and information to the insurer cause the same to be provided to the Selling PartiesSeller); (y) the Purchaser (and/or the Acquired Company) shall be solely responsible for all deductibles applicable to such claimclaim solely to the extent such claim is related to a set of facts or circumstances arising prior to the Closing Date; and (z) none of the Purchaser, the Acquired Company or any other Affiliate of the Purchaser shall commence any Legal Proceeding against the insurer without the prior written consent of the Selling Parties Seller (such consent not to be unreasonably withheld withheld, conditioned or delayed).

Calculation of Damages; Insurance Proceeds and Tax Benefits. The amount of any Damages that are subject to indemnification under this Article VI Section 6 shall be calculated net of: (i) any net Tax benefit actually received or receivable by the Purchaser or any Affiliate of Purchaser as a cash reduction in Taxes payable in the Purchaser year such Damages are incurred or in the immediately preceding year in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; and (ii) the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received or receivable by the Purchaser or any Affiliate of the Purchaser in connection with such Damages (net of any increase in premium or any cost of the events or circumstances giving rise or otherwise related to such Damagesrecovery attributable thereto). If the Purchaser or any Affiliate of the Purchaser receives a net Tax benefit of the type described in the first sentence of this Section 6.3(b) after an indemnification payment is made, the Purchaser shall promptly pay the amount of such net Tax benefit to the applicable Selling Parties Seller at such time or times as and to the extent that such Tax benefit is realized. The Purchaser shall seek, and shall cause each of its Affiliates (including the CompanyAcquired Companies) to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder. In the event that any insurance or other recovery is made by the Purchaser or any Affiliate of the Purchaser with respect to any Damages for which the Purchaser has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to Seller. Notwithstanding anything to the contrary contained in this Agreement, Purchaser acknowledges and agrees that none of it, any of the Acquired Companies, any of its other Affiliates or any Person who was an employee of any of the Acquired Companies as of or prior to the Closing shall have any rights or remedies under, or any access to coverage provided by, any insurance policies in effect prior to the Closing, except to the extent that: (A) the insurance policy is held in the name of, and provides coverage for, one or more of the Acquired Companies; (B) Seller, in its sole discretion, agrees to provide any such employee with access to such insurance; or (C) access to workers’ compensation insurance policies in effect prior to the Closing must remain available to the Acquired Companies and/or any such employees under applicable Selling PartiesLegal Requirements. If, following the Closing, any of the Company Acquired Companies (or any Person who was an employee of any of the Company Acquired Companies as of or prior to the Closing) validly asserts a claim under applicable workers’ compensation insurance policies of the Company Seller or any of its Affiliates in effect prior to the Closing: (x) the Purchaser and Seller shall use reasonable best efforts to ensure that proper notice of such claim (and any required information relating to such claim) is timely provided in accordance with the applicable insurance policy (and Purchaser shall simultaneously with providing such notice and information to the insurer cause the same to be provided to the Selling PartiesSeller); (y) the Purchaser (and/or the CompanyAcquired Companies) shall be solely responsible for all deductibles applicable to such claimclaim (solely to the extent such claim is related to a set of facts or circumstances arising after the Closing Date); and (z) none of the Purchaser, any of the Company Acquired Companies or any other Affiliate of the Purchaser shall commence any Legal Proceeding against the insurer without the prior written consent of the Selling Parties Seller (such consent not to be unreasonably withheld withheld, conditioned or delayed).

Calculation of Damages; Insurance Proceeds and Tax Benefits. For the purposes of calculating Damages indemnifiable under this Section 5.2, Damages (i) shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty, covenant or agreements and (ii) shall be reduced by the amount of Tax Benefits attributable to such Damages. The Stockholder Indemnitors shall not be liable under this Article 5 for any Damages relating to any matter to the extent that there is included a specific Liability or reserve relating to such matter in the Unaudited Interim Financial Statements; provided, that the Stockholder Indemnitors shall be liable for any Damages in excess of the amount stated in the Unaudited Interim Financial Statements. Parent shall not be liable under this Article 5 for any Damages relating to any matter to the extent that there is a specific Liability or reserve relating to such matter included in the Parent Financial Statements. The Indemnitee shall use commercially reasonable efforts to collect any amounts subject to indemnification pursuant to this Article 5 under applicable insurance policies covering such Damages or from such other Person alleged to have responsibility therefor, if any, and the amount of any Damages that are subject to indemnification payable under this Article VI 5 by an Indemnitor shall be calculated net of: (i) reduced by any Tax benefit received or receivable amounts actually recovered by the Purchaser Indemnitee under such insurance policies or from such other Person alleged to be responsible. If an Indemnitee receives any Affiliate of amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment hereunder, then such Indemnitee shall promptly reimburse the Purchaser Indemnitors for any payment made or expense incurred by such Indemnitor in connection with providing such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; and (ii) indemnification payment in the amount received by the Indemnitee, net of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or receivable expenses reasonably incurred by the Purchaser or any Affiliate of the Purchaser such Indemnitee in connection with collecting such Damages or any of the events or circumstances giving rise or otherwise related to such Damagesamount. If the Purchaser Indemnitee receives any payment from an Indemnitor in respect of any Damages and the Indemnitee could have recovered all or any Affiliate a part of such Losses from a third party based on the Purchaser receives a Tax benefit after an indemnification payment is madeunderlying claim asserted against the Indemnitor, the Purchaser Indemnitee shall promptly pay assign such of its rights to proceed against such third party as are necessary to permit the Stockholders’ Agent, if the Indemnitee is a Parent Indemnitee, or Parent, if the Indemnitee is a Stockholder Indemnitee, to recover from such third party the amount of such Tax benefit to the applicable Selling Parties at such time or times as and to the extent that such Tax benefit is realized. The Purchaser shall seek, and shall cause each of its Affiliates (including the Company) to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder. In the event that any insurance or other recovery is made by the Purchaser or any Affiliate of the Purchaser with respect to any Damages for which the Purchaser has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the applicable Selling Parties. If, following the Closing, the Company (or any Person who was an employee of any of the Company as of or prior to the Closing) validly asserts a claim under applicable workers’ compensation insurance policies of the Company or any of its Affiliates in effect prior to the Closing: (x) the Purchaser shall ensure that proper notice of such claim (and any required information relating to such claim) is timely provided in accordance with the applicable insurance policy (and shall simultaneously with providing such notice and information to the insurer cause the same to be provided to the Selling Parties); (y) the Purchaser (and/or the Company) shall be solely responsible for all deductibles applicable to such claim; and (z) none of the Purchaser, the Company or any other Affiliate of the Purchaser shall commence any Legal Proceeding against the insurer without the prior written consent of the Selling Parties (such consent not to be unreasonably withheld or delayed)payment.

Calculation of Damages; Insurance Proceeds and Tax Benefits. For the purposes of calculating Damages indemnifiable under this Section 5.2, Damages (i) shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty, covenant or agreements and (ii) shall be reduced by the amount of Tax Benefits attributable to such Damages. The Stockholder Indemnitors shall not be liable under this Article 5 for any Damages relating to any matter to the extent that there is included a specific Liability or reserve relating to such matter in the Unaudited Interim Balance Sheet; provided, that the Stockholder Indemnitors shall be liable for any Damages in excess of the amount stated in the Unaudited Interim Balance Sheet. Parent shall not be liable under this Article 5 for any Damages relating to any matter to the extent that there is a specific Liability or reserve relating to such matter included in the Parent Financial Statements. The Indemnitee shall use commercially reasonable efforts to collect any amounts subject to indemnification pursuant to this Article 5 under applicable insurance policies covering such Damages or from such other Person alleged to have responsibility therefor, if any, and the amount of any Damages that are subject to indemnification payable under this Article VI 5 by an Indemnitor shall be calculated net of: (i) reduced by any Tax benefit received or receivable amounts actually recovered by the Purchaser Indemnitee under such insurance policies or from such other Person alleged to be responsible. If an Indemnitee receives any Affiliate of amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment hereunder, then such Indemnitee shall promptly reimburse the Purchaser Indemnitors for any payment made or expense incurred by such Indemnitor in connection with providing such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; and (ii) indemnification payment in the amount received by the Indemnitee, net of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or receivable expenses reasonably incurred by the Purchaser or any Affiliate of the Purchaser such Indemnitee in connection with collecting such Damages or any of the events or circumstances giving rise or otherwise related to such Damagesamount. If the Purchaser Indemnitee receives any payment from an Indemnitor in respect of any Damages and the Indemnitee could have recovered all or any Affiliate a part of such Losses from a third party based on the Purchaser receives a Tax benefit after an indemnification payment is madeunderlying claim asserted against the Indemnitor, the Purchaser Indemnitee shall promptly pay assign such of its rights to proceed against such third party as are necessary to permit the Stockholders’ Agent, if the Indemnitee is a Parent Indemnitee, or Parent, if the Indemnitee is a Stockholder Indemnitee, to recover from such third party the amount of such Tax benefit to the applicable Selling Parties at such time or times as and to the extent that such Tax benefit is realized. The Purchaser shall seek, and shall cause each of its Affiliates (including the Company) to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder. In the event that any insurance or other recovery is made by the Purchaser or any Affiliate of the Purchaser with respect to any Damages for which the Purchaser has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the applicable Selling Parties. If, following the Closing, the Company (or any Person who was an employee of any of the Company as of or prior to the Closing) validly asserts a claim under applicable workers’ compensation insurance policies of the Company or any of its Affiliates in effect prior to the Closing: (x) the Purchaser shall ensure that proper notice of such claim (and any required information relating to such claim) is timely provided in accordance with the applicable insurance policy (and shall simultaneously with providing such notice and information to the insurer cause the same to be provided to the Selling Parties); (y) the Purchaser (and/or the Company) shall be solely responsible for all deductibles applicable to such claim; and (z) none of the Purchaser, the Company or any other Affiliate of the Purchaser shall commence any Legal Proceeding against the insurer without the prior written consent of the Selling Parties (such consent not to be unreasonably withheld or delayed)payment.