Common use of Calculation of Damages Clause in Contracts

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 9 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person person alleged to be responsible therefor, and (ii) tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the such Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the such Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 9 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages Damages, other than consequential or punitive damages assessed in favor of a third party in connection with a Third Party Claim against an Indemnified Party, or (iiiii) Damages for lost profitsprofits or diminution in value. (c) Notwithstanding Each Indemnified Party shall use reasonable efforts to mitigate any other loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge in respect of that loss and in doing so recovers any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeamounts, the Indemnified Party shall have no right or remedy notify the Indemnifying Party and pay to the Indemnifying Party such amounts (less the Indemnified Party's actual costs of mitigation) as promptly as practicable after the Closing with respect to benefit is received and such inaccuracy and amounts shall be deemed not to have waived its rights been paid to such Indemnified Party under any indemnification in respect thereofprovision of this Agreement. (d) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other person alleged to be responsible, for any Damages payable under Section 9.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 6.9 and/or Section 8.2 by the Indemnifying Party shall be be: (i) net of any amounts actually previously recovered or recoverable by the Indemnified Party under applicable insurance policies from in respect of the Damages giving rise to the right of indemnification (net of any other third party with indemnification obligations or from any other Person alleged increase in premiums to be responsible thereforpaid by the Indemnified Party arising from the insurance carrier’s payment of such claim); (ii) increased by any Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of the indemnity payment; and (iii) decreased by any cash Tax savings actually realized by the Indemnified Party arising in the taxable year in which such Damages are incurred or, if later, at the time the indemnity payment is made. If the Indemnified Party receives any amounts in respect of the Damages giving rise to the right of indemnification under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, policies subsequent to an indemnification payment in respect of such Damages by the Indemnifying Party, then such Indemnified Party shall shall, to the extent fully indemnified for the applicable Damages (after giving effect to the following reimbursement obligation), promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount so received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount (including any increase in premiums arising from the payment by an insurance carrier of such amount. (b) The Indemnifying Party ). Notwithstanding the foregoing, Seller shall not be liable under required to pay Damages pursuant to this Section 9.02 for any (i) Damages relating to any matter 8.3 if, and solely to the extent that there extent, liability for such Damages is included reflected in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more calculation of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Final Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofNet Working Capital.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 10.02 by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The For the avoidance of doubt, the Indemnifying Party shall not be liable under Section 9.02 for any 10.02 for: (i) special, punitive, indirect or consequential Damages; (ii) any Damages relating to any matter to the extent that there is included not the probable and reasonably foreseeable result of any breach by the Indemnifying Party of a representation and warranty or covenant contained in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages this Agreement; or (iii) Damages for lost profits; provided that this Section 10.05(b) shall not apply to any Damages that are recovered by third parties in connection with a Third Party Claim. (c) Notwithstanding Each Indemnified Party must mitigate in accordance with Applicable Law any other loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge in respect of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeloss, the Indemnified Party shall have no right or remedy must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the Closing with respect benefit is received. (d) Each Indemnified Party shall use reasonable efforts to such inaccuracy and shall collect any amounts available under insurance coverage, or from any other Person alleged to be deemed to have waived its rights to indemnification in respect thereofresponsible, for any Damages payable under Section 10.02.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 Article 10 of this Agreement by the Indemnifying Party shall be (a) net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from (other than any other third party with indemnification obligations amounts recovered under the R&W Policy) or from any other Person Person, pursuant to indemnity, contribution or similar agreements with respect to such Damages, alleged to be responsible thereforfor such Damages, which recoveries the Indemnified Party agrees to use reasonable efforts to obtain (taking into account the effort necessary to pursue such recovery and any adverse consequences resulting, or reasonably expected to result, from such pursuit to such Indemnified Party), (b) reduced by refund, current reduction or reduction within two (2) years following the year the applicable Damages were paid in cash Taxes payable by the Indemnified Party as a result of such Damages, and (c) reduced to the extent that the amount of such Damages was reflected in the calculation of Closing Working Capital. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations policies or from any other Person Person, pursuant to indemnity, contribution or similar agreements with respect to such Damages, alleged to be responsible for any Damages, as a refund or current reduction in cash Taxes payable, or through the calculation of Closing Working Capital, in each case subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred to such Indemnified Party by such the Indemnifying Party in connection with providing such indemnification payment up to the amount received by the such Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 suffered by the Indemnifying Party any party hereto shall be net reduced by (i) any amount that is reserved or sums held in reserve in respect of the indemnifiable event on the balance sheet of Generation or a Material Subsidiary, as applicable, (ii) any amounts recovered or recoverable by the amount that an Indemnified Party is entitled to receive with respect thereto under applicable insurance policies from any other third party with indemnification obligations insurance coverage or from any other Person party alleged to be responsible therefor. therefor or (iii) any Tax Benefit realized by an Indemnified Party or a Material Subsidiary. (b) If an Indemnified Party makes a claim for indemnification under this Article VIII, the Indemnified Party receives shall use its reasonable best efforts to collect any amounts available under applicable such insurance policies, coverage and from any such other third party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or from such other party with indemnification obligations or from respect to Damages at any other Person alleged to be responsible for any Damages, time subsequent to an any indemnification payment provided by Seller or Buyer, as the Indemnifying Partycase may be, pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such the Indemnifying Party in connection with providing such indemnification payment up to the such amount received by the Indemnified Party, but net of any expenses incurred by such the Indemnified Party in collecting such amount. . To the extent the Indemnifying Party makes any indemnification payment pursuant to this Article VIII in respect of Damages for which an Indemnified Party has a right to recover against a third party (b) The including an insurance company), the Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter subrogated to the extent right of the Indemnified Party to seek and obtain recovery from such third party; provided, however, that there is included in if the Preliminary Balance Sheet a specific liability or reserve relating Indemnifying Party shall be prohibited from such subrogation, the Indemnified Party shall seek recovery from such third party on the Indemnifying Party’s behalf and pay any such recovery to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitsthe Indemnifying Party net of expenses. (c) Notwithstanding For the avoidance of doubt, any other provision Damages of this Agreement Buyer shall include only the portion of such Damages attributable to the contrary, if on ownership interest of Generation and its Affiliates in a Material Subsidiary and shall exclude any portion of such Damages attributable to the Closing Date the Indemnified Party has actual knowledge ownership interest of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to third party in such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofMaterial Subsidiary.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 10.2 by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. Parent shall, and shall cause the Company to, use Reasonable Efforts to collect any amounts available under such Third-Party insurance coverage and from any third Person reasonably believed by the Company to be alleged to have responsibility. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages (which were not earlier taken into account in calculating Damages), subsequent to an indemnification payment by the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such the Indemnifying Party (net of costs of recovery on such Indemnified Party with respect to such insurance policies or other applicable Person) in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 10.2(a) or 10.2(b) for any (i) Damages relating to punitive, remote, or speculative Damages, whether based on contract, strict liability, other Applicable Law or otherwise and whether or not arising from any matter other Party’s sole, joint or concurrent negligence, strict liability or other fault, in each case, except to the extent that there is any such Damages are included in any action by a third party against the Preliminary Balance Sheet a specific liability Indemnified Party for which such Indemnified Party is entitled to indemnification hereunder or reserve relating to such matter, (ii) indirect, special, or consequential Damages that were not reasonably foreseeable, whether based on contract, strict liability, other Applicable Law or punitive Damages otherwise and whether or (iii) Damages for lost profitsnot arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault. (c) Notwithstanding any other provision of this Agreement The Indemnified Party must use Reasonable Efforts to mitigate to the contrary, if on the Closing Date extent required by Applicable Law any loss for which the Indemnified Party has actual knowledge of seeks indemnification under this Agreement; provided, however that any information that would cause one costs or more of the representations and warranties made expenses incurred by the Indemnifying Party to be inaccurate as of the date made, the such Indemnified Party relating to the use of such Reasonable Efforts shall be included in calculating Damages associated with any applicable claim for indemnification. (d) Neither Company nor the Company Member Interest Holders shall have no right any obligation to indemnify Parent or remedy after the Closing its Affiliates pursuant to Section 10.2 with respect to such inaccuracy and any Damages or alleged Damages that were included in the determination of Working Capital or any other adjustment to the Base Merger Consideration. (e) Any indemnity payment under this Agreement shall be deemed treated as an adjustment to have waived its rights to indemnification in respect thereofthe Base Merger Consideration for Tax purposes.

Calculation of Damages. (a) The amount of any Damages payable Damage for which indemnification is provided under Section 9.02 by the Indemnifying Party this Article IX shall be (i) with respect to the Company, net of any reserves, liability accruals or other provisions for such Damages on the balance sheet of the Company as of the Closing Date and (ii) net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies with respect to such Damage. In the event that any claim for indemnification asserted hereunder is, or may be, the subject of any insurance coverage or other right to indemnification or contribution from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If Person, the Indemnified Party receives any amounts under expressly agrees to promptly notify the applicable insurance policiescarrier of any such claim or loss and tender defense thereof to such carrier, from and shall also promptly notify any other potential third party with indemnification obligations indemnitor or from any other Person alleged to contributor which may be responsible liable for any Damagesportion of such losses or claims. The Indemnified Party agrees to pursue, subsequent at the cost and expense of the Indemnitor, such claims diligently and to an indemnification payment by reasonably cooperate, at the Indemnifying Partycost and expense of the Indemnitor, then such with each applicable insurance carrier and third party indemnitor or contributor. The Indemnified Party shall promptly use its commercially reasonable efforts to seek recoveries under insurance policies and shall reimburse the Indemnifying Party Indemnitor for any payment made or expense incurred Damage indemnified by such Indemnifying Party in connection with providing such indemnification payment up to the amount received them, which is subsequently recovered by the Indemnified Party, net of Party under any expenses incurred by such Indemnified Party in collecting such amountinsurance. (b) The Indemnifying Party amount of any Damage (including Taxes) for which indemnification is provided shall not be liable under Section 9.02 for reduced to take account of any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date net Tax benefit actually recognized by the Indemnified Party has actual knowledge arising from the incurrence or payment of any information that would cause one or more such Damage. In computing the amount of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeany such Tax benefit, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofrecognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Damage.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 7.02(a) or 7.03(a), as applicable, by the Indemnifying Party shall be net of decreased by any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor and (ii) Tax benefit actually realized by the Indemnified Party (in cash or as a reduction in Taxes otherwise due) arising from the incurrence or payment of such Damages. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to after the Indemnifying Party makes an indemnification payment by the Indemnifying Partyin respect of such Damages, then such the Indemnified Party shall promptly (and in any event within 10 Business Days) reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 7.02(a) or 7.03(a), as applicable, for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability Indemnified Party or reserve relating to any of its Affiliates has recovered for such matter, (ii) consequential Damages under another provision of this Agreement or punitive Damages or (iii) Damages for lost profitsany of the other Transaction Documents. (c) Notwithstanding Each Indemnified Party shall use its respective Commercially Reasonable Efforts to mitigate in accordance with applicable Law any Damages for which such Indemnified Party may seek indemnification under this Agreement; provided that any Damages incurred by an Indemnified Party in connection with efforts to mitigate any Damages pursuant to this Section 7.06 shall constitute Damages incurred by such Indemnified Party for which such Indemnified Party shall be indemnified pursuant to this Article 7. (d) Each Indemnified Party shall use Commercially Reasonable Efforts to collect any amounts available under applicable insurance policies, or from any other provision of this Agreement Person alleged to the contrarybe responsible, if on the Closing Date the Indemnified Party has actual knowledge of for or with respect to any information that would cause one or more of the representations and warranties made Damages payable by the Indemnifying Party to be inaccurate under Section 7.02(a) or 7.03(a), as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofapplicable.

Calculation of Damages. (a) No Party hereto will be liable to another Party hereunder for any punitive, consequential, exemplary, incidental or special damages, or for lost profits, diminution in value (including based upon a multiple of earnings or revenue, whether adjusted or unadjusted, or any similar valuation metrics), business interruption, cost of capital or loss of business reputation or opportunity, in any case relating to any claim for which such Party may be entitled to indemnification under this Agreement. (b) The amount of any Damages payable under Section 9.02 by the Indemnifying Party Damage for which indemnification is provided hereunder shall be net of any amounts recovered or recoverable by the Indemnified Party Indemnitee under insurance policies or other right to indemnification or contribution from any third Person with respect to such Damages (net of any deductibles). In the event that any claim for indemnification asserted hereunder is, or may be, the subject of any insurance coverage or other right to indemnification or contribution from any third Person, the Indemnitee expressly agrees to promptly notify the applicable insurance policies from carrier of any other such claim or loss and tender defense thereof to such carrier, and shall also promptly notify any potential third party indemnitor or contributor which may be liable for any portion of such losses or claims. The Indemnitee agrees to pursue such claims diligently and to reasonably cooperate with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under each applicable insurance policies, from any other carrier and third party indemnitor or contributor. The Indemnitee shall use its best efforts to seek recoveries under insurance policies. In the event that any insurance proceeds or any indemnity, contribution or other similar payment is recovered by the Indemnitee with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent respect to an indemnification payment obligation that the Sellers, Parent or Purchaser, as applicable, (each an “Indemnitor”) previously paid to the Indemnitee, the Indemnitee will pay such recovered amount back to the Indemnitor within ten (10) days after receipt thereof by wire transfer or delivery of other immediately funds to an account designated in writing by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitsIndemnitor. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge The amount of any information that would cause one or more Damage for which indemnification is provided shall be reduced to take account of the representations and warranties made any Tax benefit realizable by the Indemnifying Party to be inaccurate as Indemnitee arising from the incurrence or payment of any such Damage. In computing the date madeamount of any such Tax benefit, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and Indemnitee shall be deemed to have waived its rights to indemnification in respect thereofrecognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Damage.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 11.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable third-party insurance policies from (other than Seller’s and its Affiliates’ respective self-insurance programs (including insurance policies issued by any other third party with indemnification obligations Affiliate of Seller)) or from any other Person alleged to be responsible therefor, and (ii) Tax benefit actually realized by the Indemnified Party or its Affiliates (in cash or as a direct reduction in Taxes otherwise due) arising from the incurrence or payment of any such Damages and, for the avoidance of doubt, Damages shall be increased by any Tax detriment actually realized from either the indemnifiable loss or the receipt of any indemnification payments). If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible, retention amounts, increases in insurance premiums (retroactive or otherwise) or other expenses incurred by such Indemnified Party in collecting such amount. (bi) The Indemnifying Party shall not be liable under Section 9.02 11.02 for any (i) Damages relating to any matter to the extent that there is included such matter has been (or will be) taken into account in the Preliminary Balance Sheet a specific liability adjustment of the Purchase Price under Section 2.11 or reserve relating to such matter, (ii) consequential punitive or punitive Damages or exemplary damages (iii) Damages for lost profitsexcept to the extent actually paid by the Indemnified Party to a third party pursuant to a Third-Party Claim). (cj) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Each Indemnified Party has actual knowledge of must mitigate in accordance with Applicable Law any information that would cause one or more of the representations and warranties made Damages for which such Indemnified Party seeks indemnification under this Agreement, including by taking any actions reasonably requested by the Indemnifying Party for such purpose. (k) Each Indemnified Party and its Affiliates shall use reasonable best efforts to collect any amounts available from any other Person alleged to be inaccurate as responsible for any Damages payable under Section 11.02. (l) Each party agrees that it shall not, and agrees to use its reasonable best efforts to ensure that its Affiliates do not, voluntarily or by discretionary action, accelerate the timing, or increase the cost of, any obligations of the date madeother party under this Article 11. (m) Any liability for indemnification to an Indemnified Party under this Agreement shall be determined without duplication of recovery by such Indemnified Party by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement hereunder. In no event shall Seller be liable to an Indemnified Party or more than one Indemnified Party in respect of the same portion of any Damages. For the avoidance of doubt, no Indemnified Party shall have no right or remedy after the Closing be entitled to claim (i) indemnification with respect to such inaccuracy and the same Damages more than once, or (ii) pursuant to Section 8.08 with respect to the same Tax liability more than once. (n) No Buyer Indemnified Party (other than Buyer or any successor or assignee of Buyer) or Seller Indemnified Party (other than Seller or any successor or assignee of Seller) shall be deemed entitled to have waived assert any indemnification claim or exercise any other remedy under this Agreement (including any Transaction Document) unless Buyer (or any successor or assignee of Buyer) or Seller (or any successor or assignee of Seller), as the case may be, provides its rights prior written consent to such Buyer Indemnified Party or Seller Indemnified Party, respectively, regarding its assertion of an indemnification in respect thereofclaim or the exercise of any other remedy hereunder, and a copy of such consent shall be promptly delivered to the other party upon its request therefor. (o) Any indemnification payment made pursuant to this Agreement (for the avoidance of doubt, including any payment made pursuant to Article 8) and any payment made pursuant to Section 2.11 shall be treated by Buyer and Seller as an adjustment to the Purchase Price for Tax purposes.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 10.02 by the Indemnifying Party shall be net of any amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such the Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, net of any expenses incurred by such the Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 10.02. (b) The Indemnifying Party shall not be liable under Section 9.02 10.02 for any (ix) punitive, exemplary or special Damages, or any other Damages that are not reasonably foreseeable or (xi) Damages relating for lost profits, except with respect to any matter Damages for lost profits, to the extent a court of competent jurisdiction determined that there lost profits is included the appropriate measure of direct damages with respect to the matters giving rise to the claim for Damages; provided that nothing herein shall prevent any Indemnified Party from recovering for all components of awards against them in the Preliminary Balance Sheet a specific liability Third Party Claims for which recovery is provided under this Article X, including punitive, exemplary or reserve relating to such matter, (ii) consequential or punitive special Damages or (iii) and Damages for lost profits. (c) Notwithstanding The Indemnified Party shall use its commercially reasonable efforts to mitigate in accordance with Law any other loss for which the Indemnified Party seeks indemnification under this Agreement. If the Indemnified Party mitigates losses after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge in respect of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeloss, the Indemnified Party shall have no right or remedy must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) promptly after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofbenefit is received.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) The no Buyer Indemnitee shall be entitled to indemnification to the extent a liability or reserve relating to the matter giving rise to such Damages has been included in the final determination of Closing Date Net Working Capital, Closing Date Indebtedness or Closing Date Cash pursuant to Section 2.09(c); (b) each Indemnified Party shall take reasonably prudent steps consistent with customary business practices to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby after becoming actually aware of the incurrence of such Damages; (c) the amount of any Damages payable Damage for which an Indemnified Party claims indemnification under Section 9.02 by the Indemnifying Party this Agreement: (i) shall be reduced by any insurance proceeds actually received from third party insurers with respect to such Damage; (ii) shall be reduced by any net of any amounts recovered or recoverable Tax Benefit actually realized by the Indemnified Party under applicable insurance policies with respect to such Damage in the taxable year of such Damage, in any prior taxable year or in the next two taxable years following such Damage, as calculated on a with and without basis; and (iii) shall be reduced by indemnification or reimbursement payments actually received from third parties with respect to such Damage, net, in the case of each of clauses (i) and (iii) above, of any other third party reasonable costs associated with indemnification obligations or from the recovery of such amounts. In the event any other Person alleged to be responsible therefor. If the Indemnified Party receives actually recovers any amounts under applicable insurance policiesproceeds, from such Tax benefits, indemnity payments or any other third third-party with indemnification obligations or from any other Person alleged to be responsible for recoveries in respect of any Damages, in each case at any time subsequent to an any indemnification payment by the Indemnifying Partypursuant to this Article IX, then such Indemnified Party shall thereafter promptly reimburse the Indemnifying Party for any indemnity payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, Party (net of any costs, fees or expenses incurred by such the Indemnified Party in collecting such amount.); (bd) The Indemnifying in the event an Indemnified Party shall not recover Damages in respect of a claim of indemnification under this Article IX, no other Indemnified Party shall be entitled to recover the same Damages in respect of such claim for indemnification such that there will be no “double recovery” of Damages in respect of the same claim; (e) except with respect to those actually awarded and paid on account of a Third Party Claim, no Party shall be liable under Section 9.02 for any (i) Damages relating punitive or exemplary damages or (ii) incidental, consequential, special or indirect damages, lost profits or lost business, loss of enterprise value, diminution in value of any business, damage to reputation or loss to goodwill, whether based on contract, tort, strict liability, other Law or otherwise and whether or not arising from any matter other Party’s sole, joint or concurrent negligence, strict liability or other fault except, in the case of clause (ii), to the extent such Damages are reasonably foreseeable in connection with the event that there gave rise thereto or the matter for which indemnification is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits.sought hereunder; (cf) Notwithstanding the amount of any other provision of Damage for which an Indemnified Party claims indemnification under this Agreement shall not include the costs of compliance with any equitable remedies resulting from any Action subject to the contraryindemnification hereunder, if including the costs of compliance with any prospective injunctive relief or the associated need to change the relevant business practices on a going-forward basis except to the Closing Date extent such remedies have been consented to by the Indemnified Party has actual knowledge in accordance with the provisions of any information that would cause one or more of the representations and warranties made by the Indemnifying Party this Agreement, such consent not to be inaccurate as of the date madeunreasonably withheld, the conditioned or delayed; (g) no Indemnified Party shall have no be entitled to indemnification pursuant to this Article IX, to xxx for, or to assert any other right or remedy after the Closing with respect to, any Damages, causes of action or other claims to the extent they are possible or potential Damages, causes of action or claims that such inaccuracy party believes may be asserted rather than Damages, causes of action or claims that have, in fact, been filed of record against such Indemnified Party or paid or incurred by such Indemnified Party; and (h) notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and shall be deemed the Indemnified Parties hereby waive to have waived its rights to indemnification in respect thereofthe fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 10.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable third party insurance policies or from any other third party with indemnification obligations (other than the Indemnifying Party or from any other Person its Affiliates) alleged to be responsible therefortherefor net of any expenses incurred by the Indemnified Party in collecting such amount and (ii) Tax benefit realized by the Indemnified Party or its Affiliates arising from the incurrence or payment of any such Damages. If the Indemnified Party (i) receives any actual amounts under applicable third party insurance policies, or from any other third party with indemnification obligations (other than the Indemnifying Party or from any other Person its Affiliates) alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount or (ii) realizes any net Tax benefit subsequent to an indemnification payment by the Indemnifying Party that was not previously taken into account in the indemnification payment, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of such net Tax benefit, net of any out-of-pocket expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 10.02 for any (i) Damages relating to any matter to the extent that there is included in where the Preliminary Balance Sheet a specific liability Indemnified Party had otherwise been compensated for such matter pursuant to the calculation of Final Adjusted Amounts or reserve relating to such matterthe adjustment of the Purchase Price under Section 2.12, (ii) consequential consequential, incidental, special, exemplary or punitive Damages, except to the extent such Damages are awarded to a third party in respect of a Third Party Claim or (iii) Damages for lost profitsprofits or diminution in value, except as set forth in Section 10.06(b) of the Disclosure Schedules. (c) Notwithstanding Each Indemnified Party shall use their reasonable efforts to mitigate in accordance with Applicable Law any other loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge in respect of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeloss, the Indemnified Party must notify the Indemnifying Party and promptly pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation). (d) Each Indemnified Party and its Affiliates shall have no right use reasonable efforts to collect any amounts available under insurance coverage, or remedy after the Closing with respect from any other Person alleged to such inaccuracy and be responsible, for any Damages payable under Section 10.02. (e) Any indemnification payment made pursuant to this Agreement shall be deemed treated by Buyer and Seller as an adjustment to have waived its rights to indemnification in respect thereofthe Purchase Price for Tax purposes.

Calculation of Damages. (a) The amount of Except as otherwise provided in this Article XI, in any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any amounts recovered or recoverable by case where the Indemnified Party under applicable insurance policies subsequently recovers from third parties any other third party amount in respect of a matter with indemnification obligations or from any other Person alleged respect to be responsible therefor. If the Indemnified which an Indemnifying Party receives any amounts under applicable insurance policieshas indemnified it pursuant to this Article XI, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse pay over to the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by so recovered (after deducting therefrom the Indemnified Party, net full amount of any the expenses incurred by it in procuring such Indemnified Party recovery and the related increase in collecting such amount. (binsurance premium) The Indemnifying Party shall but not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge excess of any information that would cause one or more of the representations and warranties made amount previously so paid by the Indemnifying Party to be inaccurate as or on behalf of the date made, the Indemnified Party shall have no right or remedy after in respect of such matter. The computation of the Closing with respect amount of any indemnity payment required to such inaccuracy and be made to any Buyer Indemnitee pursuant to this Agreement shall be deemed reduced by the amount of the Tax Benefit resulting from the incurrence of the liability giving rise to the Damages at issue, if any, actually realized by the Buyer Indemnitee in the year such Liability is incurred or in the immediately succeeding year. If the Buyer Indemnitee receives a Tax Benefit after an indemnification payment is made to it, the Buyer Indemnitee shall promptly pay to Seller the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Buyer Indemnitee. If and to the extent all or any portion of any Tax Benefit that (a) was used to reduce the Damages otherwise payable to the Buyer Indemnitee or (b) was paid over to Seller pursuant to this Section 11.09, is subsequently reduced, denied, or eliminated by the applicable Taxing Authority, Selling Parties agree to pay the amount by which the Tax Benefit was so reduced, denied, or eliminated to the Buyer Indemnitee promptly, and in any case within five (5) days of receiving written demand for such payment from the Buyer Indemnitee. For purposes hereof, “Tax Benefit ” means any refund of Taxes paid or reduction in the amount of Taxes that otherwise would have waived its rights to indemnification in respect thereofbeen paid.

Calculation of Damages. (a) Each Indemnified Party and Indemnified Tax Party shall use its reasonable best efforts to obtain all insurance proceeds or other payments from third parties. The amount of any Damages payable Loss for which each Indemnified Party may be entitled to seek indemnification under Section 9.02 by this Agreement, and the Indemnifying amount of Taxes for which each Indemnified Tax Party may be entitled to seek indemnification under this Agreement, shall be net of (i) increased by any amounts recovered or recoverable cash Taxes actually incurred by the Indemnified Party under applicable or an Affiliate thereof (or by the Indemnified Tax Party or any of its Affiliates) as a result of the receipt of the respective indemnity payment (as increased pursuant to this Section 10.8(a)) (such increase, a “Tax Gross Up”) and (ii) reduced by the amount of (x) any insurance policies proceeds or other payment from any other a third party with indemnification obligations actually received, or from any other Person alleged to be responsible therefor. If realized by the Indemnified Party receives or any amounts under applicable insurance policies, from any other third party with indemnification obligations of its Affiliates (or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyTax Party or any of its Affiliates) with respect to such Loss (or Taxes), net less the amount of any expenses incurred by it in procuring such recovery and (y) any Tax Benefit realized by the Indemnified Party or any of its Affiliates (or by the Indemnified Tax Party or any of its Affiliates) arising from the incurrence or payment of such Loss (or Taxes). For purposes of this Section 10.8(a) a “Tax Benefit” to an Indemnified Party, Indemnified Tax Party or an Affiliate thereof means an amount by which the Tax liability of such Person (or group of Affiliates including such Person) is actually reduced as a result of the Taxes or other Losses that are the subject of such indemnity claim. A Tax Benefit that results from an event giving rise to the indemnity payment required to be made under this Agreement shall be considered actually realized by an Indemnified Party, Indemnified Tax Party or an Affiliate thereof only to the extent that, but for such Tax Benefit, such Indemnified Party’s, such Indemnified Tax Party’s or such Affiliate’s Tax liability would be higher than it is with such Tax Benefit (e.g., Tax Attributes of the Indemnified Party, Indemnified Tax Party or an Affiliate thereof that do not result from the event giving rise to the indemnity payment shall be deemed to be used prior to the use of any Tax Attribute that does result from the event giving rise to the indemnity payment). The parties will cooperate in collecting good faith in determining any Tax Gross Up or Tax Benefit required to be taken into account under this Section 10.8, and each party shall provide the other party with such amountinformation reasonably necessary to enable such other party to evaluate the amount of any Tax Gross Up or Tax Benefit claimed or asserted under this Section 10.8. In the event that the parties are unable to agree on such Tax Gross Up or Tax Benefit, either party may elect for an accounting firm mutually agreeable to the parties to determine the amount of the Tax Gross Up or Tax Benefit for the Tax year in which the event giving rise to the indemnity payment occurs and for each of the four Tax years that immediately follow, and if such an election is made, then each party shall cooperate with all requests by the accounting firm for information that the accounting firm deems necessary to make such determination (including redacted, relevant portions of any Tax Returns), and the fees charged by such accounting firm in making such determination shall be borne by such electing party. (b) The If the Indemnified Party, after having received any indemnification payment pursuant to this Agreement with respect to a Loss, subsequently receives or realizes any insurance proceeds or other payment, such Person will promptly refund and pay to the Indemnifying Party shall not be liable under Section 9.02 for an amount equal to such insurance proceeds or payment (after deducting therefrom the amount of any (i) Damages relating to any matter expenses incurred by it in procuring such recovery, to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge did not already receive payment for such expenses from the Indemnifying Party), but not in excess of any information that would cause one amount previously paid by or more on behalf of the representations and warranties made by the Indemnifying Party to be inaccurate as or on behalf of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofof such matter.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party Damage for which indemnification is provided shall be (i) net of any reserves or current liabilities set forth on the Form Working Capital Statement setting forth the final and binding Closing Working Capital and (ii) net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged respect to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, Damages (net of any expenses incurred deductibles), provided that the amount of Damages shall be increased by such the amount of any Taxes actually paid by any Indemnified Party in collecting as a result of such amount. (b) The Indemnifying Party shall not be liable amounts recovered under Section 9.02 insurance policies. In the event that any claim for any (i) Damages relating to any matter to indemnification asserted hereunder is, or may be, the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge subject of any information that would cause one insurance coverage or more of the representations and warranties made by the Indemnifying Party other right to be inaccurate as of the date madeindemnification or contribution from any third Person, the Indemnified Party shall have no right expressly agrees to promptly notify the applicable insurance carrier of any such claim or remedy after the Closing with respect loss and tender defense thereof to such inaccuracy carrier, and shall also promptly notify any potential third party indemnitor or contributor which may be deemed liable for any portion of such losses or claims. The Indemnified Party agrees to have waived pursue such claims diligently and to reasonably cooperate with each applicable insurance carrier and third party indemnitor or contributor. The Indemnitor shall pay the Indemnified Party’s expenses pursuant to this Section 8.7 as and when incurred. The Indemnified Party shall use its rights commercially reasonable efforts to indemnification in respect thereofseek recoveries under insurance policies and shall reimburse the Indemnitor for any Damage indemnified by the Indemnitor, which is subsequently recovered by the Indemnified Party under any such insurance.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article X by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor (less any expenses or costs incurred by the Indemnified Party in connection therewith), and (ii) net Tax benefit actually recognized by the Indemnified Party arising from the incurrence or payment of any such Damages. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations policies or from any other Person alleged to be responsible therefor for any Damages, Damages subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of Party (less any expenses or costs incurred by such the Indemnified Party in collecting such amountconnection therewith). (b) The Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable under Section 9.02 this Agreement for any (i) Damages relating with respect to any matter to the extent that there is included such Damages have been taken into account in the Preliminary Balance Sheet a specific liability determination of Closing Inventory, or reserve relating to such matter, (ii) consequential exemplary or punitive Damages or Damages, (iii) Damages suffered by an Indemnified Party unless such Damages are reasonably foreseeable based on the event(s) giving rise to the Indemnifying Party’s indemnification obligation for lost profitsDamages under this Agreement, (iv) Damages suffered by an Indemnified Person’s that arise solely from the special circumstances of such Indemnified Person, (v) Damages based on a multiple of earnings or other income model or (vi) Damages arising out of changes after the Closing Date in Applicable Law; provided, however, none of the limitations set forth above in this Section 10.5(b) (other than in Section 10.5(b)(vi)) shall apply to Damages to the extent recovered in a Third Party Claim. (c) Notwithstanding Each Indemnified Party shall use its reasonable best efforts to mitigate any other loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge in respect of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeloss, the Indemnified Party shall have no right or remedy notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation within ten (10) Business Days after the Closing benefit is received, including seeking recovery under applicable insurance policies or from other Person potentially responsible for any Damages payable under this Article X. For avoidance of doubt, it shall not be a condition or requirement with respect to any right to pursue indemnification by any Indemnified Party against an Indemnified Party pursuant to the terms of this Agreement to first pursue or exhaust any right to payment under any insurance policy or from any other Person who may be responsible for any such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofloss.

Calculation of Damages. (a) The term "Damages" as used in this Article 8 is not limited to matters asserted by third parties, but includes Damages incurred or sustained by an Indemnified Party in the absence of third party claims. The amount of any Damages shall be calculated (i) net of any reserves, liability accruals or other provisions for such Damages on the Financial Statements, (ii) net of insurance proceeds paid or payable under Section 9.02 by with respect thereto or any indemnification or contribution from any third Person, (iii) after the Indemnifying effect of any tax benefits or tax detriments realizable in connection therewith and (iv) after the effect of any amount received pursuant to the Letter of Credit. In computing the amount of any such tax benefit, the Indemnified Party shall be net deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any amounts indemnity payment hereunder or the incurrence or payment of any indemnified Damage. The Indemnified Party expressly agrees to promptly notify the applicable insurance carrier of any such claim or loss and tender defense thereof to such carrier, and shall also promptly notify any potential third party indemnitor or contributor which may be liable for any portion of such losses or claims; provided, however, that failure to give timely notice shall not affect the Indemnitor's obligation to indemnify the Indemnified Party hereunder. The Indemnified Party agrees to pursue, at the cost and expense of the Indemnitor(s), such claims diligently and to reasonably cooperate, at the cost and expense of the Indemnitor(s), with each applicable insurance carrier and third party indemnitor or contributor. The Indemnified Party shall use its commercially reasonable efforts to seek recoveries under insurance policies and shall reimburse the Indemnitor(s) for any Damages indemnified by them, which is subsequently recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Partyinsurance, net of any reasonable costs and expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating of collection. With respect to any matter Damages that become due from Seller to the extent that there is included in Buyer Indemnified Parties pursuant to the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision terms and provisions of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeArticle 8, the Buyer Indemnified Party Parties shall have no right or remedy after request drawings under the Closing Letter of Credit prior to seeking any payment from Seller directly with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofDamages.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article 12 (or any other provision of this Agreement that expressly provides for indemnification) by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations policies, or from any other Person alleged to be responsible therefortherefor and the present value of any Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages. The present value of any such Tax benefit shall be computed (x) using a discount rate equal to the mid-term applicable federal rate in effect at the time the relevant payment is made, (y) assuming that the Tax benefit will be used at the earliest date or dates allowable by Applicable Law and (z) using the maximum federal or state, as the case may be, corporate Tax rate in effect at the time the relevant payment is made. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable under Section 9.02 this Agreement for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability Indemnified Party had been compensated for such matter pursuant to the adjustments under Sections 2.4 or reserve relating to such matter2.7, (ii) consequential consequential, indirect, incidental, special, exemplary or punitive Damages or (iii) Damages for lost profitsprofits or opportunities. (c) Notwithstanding Each Indemnified Party must use its respective commercially reasonable efforts to mitigate any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation within five (5) Business Days after the benefit is received. (d) Each Indemnified Party shall use its respective commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person potentially responsible, for any Damages payable under this Article 12 (or any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofexpressly provides for indemnification).

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this ARTICLE 10 by the Indemnifying Party shall be (i) net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If (which the Indemnified Party receives shall use commercially reasonable efforts to obtain) and (ii) net of any amounts under applicable insurance policies, Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any other third party with such Damages and the receipt of indemnification obligations payments from or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by on behalf of the Indemnifying Party. In computing the amount of any such Tax benefit or cost, then such the Indemnified Party shall promptly reimburse be deemed to fully utilize, at the Indemnifying highest marginal tax rate then in effect and applicable to such Party for any payment made or expense incurred by with respect to such Indemnifying Party in connection with providing such indemnification payment up to payment, all Tax items arising from the amount received by the Indemnified Party, net receipt of any expenses incurred by such Indemnified Party in collecting such amountindemnity payment hereunder or the incurrence or payment of any indemnified Damages. (b) The Indemnifying Party shall not be liable under Section 9.02 10.02 (and no Party shall be liable under Section 11.02 or otherwise under this Agreement) for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability special, incidental, indirect, consequential, punitive or reserve relating to such matter, (ii) consequential or punitive exemplary Damages or (iiiii) Damages for lost profits. For purposes of clarity, the payment of Damages to a Person making a Third Party Claim in satisfaction of such Third Party Claim shall not be deemed consequential Damages. (c) Notwithstanding The Indemnifying Party shall promptly, and in any other provision of this Agreement event within thirty (30) days, pay or reimburse to the contrary, if on the Closing Date the Indemnified Party has actual knowledge the amount of any information that would cause one or more of the representations and warranties made by all Indemnification Claims after the Indemnifying Party’s liability therefor is established (a) by agreement in writing between Indemnifying Party to be inaccurate as of the date made, the and Indemnified Party shall have no right or remedy after (b) by a final, non-appealable judgment of a court of competent jurisdiction (any amount so determined is referred to herein as an “Established Loss”). (d) All amounts paid by Seller to Buyer pursuant to this ARTICLE 10 shall, to the Closing with respect extent permitted by applicable Law, be treated as adjustments to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofthe Purchase Price for all Tax purposes.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party Damage for which indemnification is provided shall be (a) net of any reserves or current liabilities included in the final determination of Closing Working Capital, (b) net of any amounts recovered or recoverable by the Kenexa Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy Damages and (c) computed after taking into account all Tax consequences to the Kenexa Indemnified Party of (i) the receipt of (or the right to receive) the indemnification payment and (ii) the event or the incurrence of the liability that has given rise to the right to receive the indemnification payment. Thus, it is the intention of the parties that the Kenexa Indemnified Party be held harmless with respect to the liability that gave rise to the indemnification payment on an after-Tax basis. In the event that any claim for indemnification asserted hereunder is, or may be, the subject of any insurance coverage or other right to indemnification or contribution from any third Person, the Kenexa Indemnified Party expressly agrees to promptly notify the applicable insurance carrier of any such claim or loss and tender defense thereof to such carrier, and shall also promptly notify any potential third party indemnitor or contributor which may be deemed liable for any portion of such losses or claims. The Kenexa Indemnified Party agrees to have waived pursue such claims diligently and to reasonably cooperate with each applicable insurance carrier and third party indemnitor or contributor. The Kenexa Indemnified Party shall use its rights commercially reasonable efforts to indemnification in respect thereofseek recoveries under insurance policies and shall reimburse the Equityholders for any Damage indemnified by the Equityholders, which is subsequently recovered by the Kenexa Indemnified Party under any such insurance.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in cash by the Indemnified Party (such value to be calculated in accordance with the method described in Section 7.06(c)) arising from the incurrence or payment of any such Damages in (x) the Tax year such Damages were incurred and (y) any succeeding Tax year ending on or prior to the date of payment of such Damages. If, in any of the first five Tax years ending after the date of such payment, the Indemnified Party actually realizes value in cash with respect to a Tax Benefit made allowable by such incurrence or payment of any such Damages, the Indemnified Party shall pay the Indemnifying Party an amount equal to the value so realized within 90 days of the filing of the applicable Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowable. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Schedules (or similar attachments) referred to and listed herein shall have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (or similar attachment) will be furnished to the Commission upon request. (b) The For the avoidance of doubt, the Indemnifying Party shall not be liable under Section 9.02 for any (i) special, punitive, indirect or consequential Damages, (iii) any Damages relating to any matter to the extent that there is included not the probable and reasonably foreseeable result of any breach by the Indemnifying Party of a representation and warranty or covenant contained in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages this Agreement or (iii) Damages for lost profits. (c; provided that this Section 9.05(b) shall not apply to any Damages that are recovered by third parties in connection with a Third Party Claim. Notwithstanding any other provision of anything in this Agreement to the contrary, if no Damages shall be determined or increased based on any multiple of any financial measure (including earnings, sales or other benchmarks) that might have been used by Buyer in the Closing Date valuation of the Company or their businesses and operations. No Indemnified Party shall be entitled to recover Damages or otherwise be indemnified hereunder (or receive other payment, reimbursement or restitution) more than once in respect of any one given liability, loss, cost or shortfall, regardless of whether more than one claim for Damages arises in respect of it. (c) Each Indemnified Party must mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party has actual knowledge under any indemnification provision of any information this Agreement in respect of that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date madeloss, the Indemnified Party shall have no right or remedy must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the Closing with respect benefit is received. (d) Each Indemnified Party shall use reasonable efforts to such inaccuracy and shall collect any amounts available under insurance coverage, or from any other Person alleged to be deemed to have waived its rights to indemnification in respect thereofresponsible, for any Damages payable under Section 9.02.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this ‎Article XI by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations policies, or from any other Person alleged to be responsible therefortherefor and (ii) the net Tax benefit actually realized by the Indemnified Party and its Affiliates as a result of the incurrence or payment of such Damages by the Indemnified Party, determined on a “with-and-without basis” (a “Tax Benefit”). If the Indemnified Party or any of its Affiliates receive any Tax Benefits subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefits. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then then, to the extent that such recoveries exceed the Indemnified Party’s Damages for such matter, such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyParty that exceeds its Damages, net of any expenses incurred by such Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to make claims for recovery under applicable insurance policies and from any other Person alleged to be responsible for any Damages and for Tax credits or refunds to the extent such Tax credits or refunds would give rise to a Tax Benefit. (b) The Indemnifying Each Indemnified Party shall not be liable use commercially reasonable efforts to mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitsthis Agreement. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Each Indemnified Party shall have no right use reasonable efforts to collect any amounts available under insurance coverage, or remedy after the Closing with respect from any other Person alleged to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofresponsible, for any Damages payable under ‎Section 11.02.

Calculation of Damages. (a) The amount of any Damages payable for which indemnification is provided under Section 9.02 by the Indemnifying Party this Article IX shall be net reduced (i) to take account of any amounts net insurance proceeds and any indemnity, contribution or other similar payment actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with respect thereto and (ii) to the extent an Indemnified Party does not use reasonable steps and use commercially reasonable efforts to mitigate any and all Damages in accordance with applicable Law, it being understood and agreed that (x) to the extent any Indemnified Party undertakes such mitigation efforts, the costs of such efforts may be included in the calculation of indemnifiable Damages hereunder, and (y) to the extent that pursuant to the terms of any Other Transaction Document, Seller or its Affiliates has any right, obligation or responsibility related to any event, condition, occurrence or circumstance for which any Purchaser Indemnified Party is the Indemnified Party hereunder, the determination of whether any mitigation steps or efforts by any Purchaser Indemnified Party are reasonable or required shall take into account the rights, obligations and responsibilities of Seller and its Affiliates under such Other Transaction Documents, and no Purchaser Indemnified Party shall be required to take such mitigation steps or efforts to the extent that Seller or any of its Affiliates has any obligation or responsibility with respect thereto under any Other Transaction Document. (b) To the extent any net insurance proceeds and any indemnity, contribution or other similar payment are recovered after an indemnification obligations payment has been made by an Indemnifying Party in respect of a claim or series of claims, the Indemnified Party shall remit such funds to the Indemnifying Party as promptly as practicable. (c) The Indemnified Party may, but need not, commence legal or other proceedings to collect indemnity, contribution or other payments from any insurer or other Person alleged to be responsible thereforthird party. If the Indemnified Party receives elects to do so, the costs and expenses (including reasonable fees and disbursements of counsel) reasonably incurred by the Indemnified Party in pursuing any amounts under applicable insurance policiesproceeds or indemnity, contribution or other similar payment from any insurer or other third party under clause (a) above shall reduce the amount by which the Damages are reduced pursuant to clause (a), except to the extent such costs and expenses are paid or reimbursed by such insurer or other third party. In the event that an Indemnified Party has a right of recovery against any third party non-insurers with indemnification obligations or from respect to any other Person alleged Damages in connection with which a payment is made to be responsible for any Damages, subsequent to such Indemnified Party by an indemnification payment by the Indemnifying Party; then (i) such Indemnifying Party shall, then to the extent of such payment, be subrogated to all of the rights of recovery of such Indemnified Party against such third party with respect to such Damages; and (ii) such Indemnified Party shall promptly reimburse execute all papers reasonably required and take all commercially reasonable action necessary to secure such rights, including the Indemnifying Party for any payment made or expense incurred by execution of such documents as are necessary to enable such Indemnifying Party to bring suit to enforce such rights in connection with providing such indemnification payment up each case at the Indemnifying Party’s expense. (d) Neither Purchaser or Seller nor their respective Affiliates shall be liable to the amount received by the other party or its Affiliates under this Agreement for any punitive, consequential, lost profits or exemplary damages; provided, however, that this Section 9.07(d) shall not be construed to limit any Indemnified Party’s rights to indemnification under this Article IX for punitive, net of any expenses incurred consequential, lost profits or exemplary damages paid by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification third party in respect thereofof a Third Party Claim.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor and (i) Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages, and shall be (without duplication of any amounts already included in Damages) increased by the Tax cost incurred by the Indemnified Party as a result of the indemnity payments. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (ba) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that (A) there is included in the Preliminary Balance Sheet Closing Statement a specific liability or reserve relating to such matter, matter or (iiB) consequential the Indemnified Party had otherwise been compensated for such matter pursuant to the adjustment to the Purchase Price under Section 2.09 or (i) exemplary or punitive Damages or Damages. (iiib) Damages for lost profitsThe party seeking indemnification under this Article 9 shall use its commercially reasonable efforts to mitigate any Loss which forms the basis of an indemnification claim hereunder. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Each Indemnified Party shall have no right use commercially reasonable efforts to collect any amounts available under insurance coverage (other than the R&W Insurance Policy), or remedy after the Closing with respect from any other Person alleged to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofresponsible, for any Damages payable under Section 9.02.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 9.10 and/or Section 11.2 by the Indemnifying Party shall be be: (i) net of any amounts actually previously recovered or recoverable by the Indemnified Party under applicable insurance policies from in respect of the Damages giving rise to the right of indemnification (net of any other third party with indemnification obligations or from any other Person alleged increase in premiums to be responsible thereforpaid by the Indemnified Party arising from the insurance carrier’s payment of such claim); (ii) increased by any Tax cost actually incurred by the Indemnified Party arising from the receipt or accrual of the indemnity payment and (iii) decreased by any Tax benefit actually realized by the Indemnified Party arising in connection with the accrual or payment of any such Damages. If the Indemnified Party receives any amounts in respect of the Damages giving rise to the right of indemnification under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, policies subsequent to an indemnification payment in respect of such Damages by the Indemnifying Party, then such Indemnified Party shall shall, to the extent fully indemnified for the applicable Damages (after giving effect to the following reimbursement obligation), promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount so received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount (including any increase in premiums arising from the payment by an insurance carrier of such amount. (b) The Indemnifying Party ). Notwithstanding the foregoing, the Holdings Stockholder shall not be liable under required to pay Damages pursuant to this Section 9.02 for any (i) Damages relating to any matter 11.3 if, and solely to the extent that there extent, liability for such Damages is included reflected in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more calculation of the representations and warranties made by Final Holdings’ Indebtedness or the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Final Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofNet Working Capital.

Calculation of Damages. (a) The amount of any Damages payable for which indemnification is provided under Section 9.02 by the Indemnifying Party this ARTICLE VIII shall be net calculated after reduction for (i) any Tax benefit inuring to the Indemnified Person on account of such Damage and (ii) any amounts actually recovered or recoverable by the Indemnified Party Person under applicable any insurance policies from and any other amounts recoverable pursuant to any indemnification right, claim, recovery, settlement, reimbursement arrangement, Contract or payment by or against a third party with indemnification obligations or from any other Person alleged (collectively, “Alternative Arrangements”), in each case relating to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any such Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any the reasonable costs and expenses incurred in seeking such collection. In the event that an insurance, Tax benefit or other recovery is made by any Indemnified Persons with respect to any Damage for which any such Indemnified Party Person has been indemnified hereunder, then a refund equal to the aggregate amount of the insurance, Tax benefit or recovery shall be made promptly to the Indemnifying Person. Notwithstanding anything to the contrary in collecting such amountthis ARTICLE VIII, the parties agree that no amount shall be due under this ARTICLE VIII to the extent that it duplicates another amount already paid or accounted for under this ARTICLE VIII or in the calculation of the Indebtedness Amount, Net Working Capital Amount, Transaction Expenses or Closing Tax Amount. (b) The Indemnifying Party Notwithstanding anything to the contrary in this ARTICLE VIII, no Indemnified Person shall not be liable entitled to indemnification under Section 9.02 for any this ARTICLE VIII (i) Damages relating to for any matter consequential, incidental, indirect, special (including loss of revenue, income or profits or a multiple thereof or similar valuation or diminution in value), exemplary or punitive damages, except for punitive damages solely to the extent that there is included actually paid to an unrelated third party as a result of a final, non-appealable judgment by a court of competent jurisdiction in the Preliminary Balance Sheet connection with a specific liability or reserve relating to such matterThird-Party Claim, (ii) consequential for any breach of any representation, warranty or punitive Damages covenant under this Agreement to the extent any Indemnified Person knew or was aware of any facts, events or circumstances constituting or resulting in such breach as of the date of this Agreement or (iii) Damages attributable to Taxes of any member of the Company Group (A) for lost profitsany Post-Closing Tax Period, (B) for any breach by Buyer and/or its Affiliates of ARTICLE IX, (C) related to the amount, sufficiency or usability of any net operating loss, capital loss, Tax basis or other Tax asset for any Post-Closing Tax Period, or (D) as a result of changes in Tax Law occurring after the Closing Date that have a retroactive effect to any Pre-Closing Tax Period (or portion thereof). (c) Notwithstanding The Buyer Indemnified Person’s right to indemnification pursuant to ARTICLE VIII on account of any other provision Damages will be reduced by the amount of this Agreement to any reserve reflected on the contrary, if on Company Group’s books and records as of the Closing Date established for the general category of items or matters similar in nature to the specific items or matters giving rise to such Damage. (d) If any Indemnifying Person makes any indemnification payment pursuant to this ARTICLE VIII or otherwise by reason of the transactions contemplated hereby under any theory of recovery, such Indemnifying Person shall be subrogated, to the extent of such payment and to the extent permitted by Law, to any rights and remedies of the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party Person to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing recoup amounts paid from third parties with respect to such inaccuracy the matters giving rise to indemnification hereunder. (e) Notwithstanding anything to the contrary in this Agreement (including ARTICLE III and ARTICLE IV), none of the statements or other items or anything else in ARTICLE III and ARTICLE IV shall constitute or be deemed to be a covenant or agreement, and all statements, items and anything else in ARTICLE III and ARTICLE IV shall constitute and shall be deemed to have waived its rights to indemnification in respect thereofbe only representations and warranties.

Calculation of Damages. (ai) The amount of any Damages for which indemnification is payable under Section 9.02 by the Indemnifying Party this Article 8 shall be calculated net of any amounts actually recovered or recoverable by the Indemnified Party for such Damages under any applicable third party insurance policies from any other third party with indemnification obligations (excluding self-insurance arrangements) or from any other Person third party alleged to be responsible therefor. , less the costs and expenses incurred by the Indemnified Party to collect any such insurance proceeds or other amounts (including reasonable attorneys’ fees and expenses and, in the case of insurance proceeds, any deductibles or self-insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds), it being agreed and understood that no Indemnified Party shall have any obligation to seek recovery under any insurance policy prior to making any claim for indemnification hereunder. (ii) If the Indemnified Party receives any amounts under applicable third party insurance policies, or from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to receiving an indemnification payment by from the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyParty from such insurance policies or other third party, net of any costs and expenses incurred by such the Indemnified Party in collecting any such amountinsurance proceeds or other amounts (including reasonable attorneys’ fees and expenses and, in the case of insurance proceeds, any deductibles or self-insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds). (biii) The Indemnifying Party Purchaser Indemnified Parties shall not be liable under Section 9.02 entitled to indemnification for any (i) Damages relating to any matter to the extent that there the amount of such Damages is included specifically reflected as a Current Liability in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitscalculation of the Closing Working Capital Statement. (civ) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the An Indemnified Party shall have no right or remedy after not be entitled to be compensated more than once for the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofsame Damages under this Agreement.

Calculation of Damages. (a) Each Indemnified Party and Indemnified Tax Party shall use its commercially reasonable efforts, in accordance with applicable Law, to obtain all insurance proceeds (including proceeds under any R&W Insurance Policy) or other payments from third parties to the extent any amounts are actually covered and recoverable thereunder. The amount of any Damages payable Loss for which each Indemnified Party may be entitled to recover for indemnification under Section 9.02 this Agreement, and the amount of Taxes for which each Indemnified Tax Party may be entitled to seek indemnification under this Agreement, will be reduced by the Indemnifying Party shall be net amount of any amounts recovered insurance proceeds or recoverable other payment from a third party actually received, realized or retained by the Indemnified Parties (or by the Indemnified Tax Parties) with respect to such Loss (or Taxes), less the amount of any costs or expenses incurred in procuring such recovery, deductibles, premium increases or similar amounts, and (x) less any actual cash Tax benefit or (y) plus any actual cash Tax cost, in each case realized by the Indemnified Party under applicable insurance policies from or any other third party with indemnification obligations of its Affiliates (or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net Tax Party or any of its Affiliates) in the year of the Loss or the succeeding two (2) years and arising from the incurrence or payment of such Loss (or Taxes). In computing the amount of any expenses incurred by such Tax benefit or such Tax cost, each Indemnified Party in collecting such amountand Indemnified Tax Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the incurrence or payment of any indemnified Loss or indemnified Taxes. (b) The If the Indemnified Party, after having received any indemnification payment pursuant to this Agreement with respect to a Loss, subsequently actually receives or realizes any insurance proceeds with respect to such Loss such Person will promptly refund and pay to the Indemnifying Party shall not be liable under Section 9.02 for an amount equal to such insurance proceeds, or payment (after deducting therefrom the amount of any (i) Damages relating to any matter costs or expenses incurred by it in procuring such recovery, deductibles, premium increases or similar amounts, to the extent that there is included such Indemnified Party did not already receive payment for such expenses or other amounts in respect of such Claim from the Preliminary Balance Sheet a specific liability Indemnifying Party), but not in excess of any amount previously paid by or reserve relating on behalf of the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement anything to the contrarycontrary contained in this Agreement, if on for purposes of determining the Closing Date the Indemnified Party has actual knowledge amount of any information Losses that would cause one or more are the subject matter of a claim for indemnification pursuant to this Article X, and for purposes of determining whether the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect giving rise to such inaccuracy indemnification have been breached or are inaccurate, each representation and warranty in this Agreement shall be deemed read without regard and without giving effect to have waived its rights to indemnification the term, or, as applicable, clause containing, “material”, “materiality” or similar phrases or clauses (including “Material Adverse Effect” or “material adverse effect”) contained in respect thereofsuch representation and warranty.

Calculation of Damages. (a) The amount of any Damages payable Notwithstanding anything to the contrary contained in this Agreement, neither party shall have Liability under Section 9.02 by the Indemnifying Party shall be net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such any claim for indemnification payment up pursuant to the amount received this Article 12 for any claim (i) for punitive, incidental, consequential, lost profits, special or indirect damages or (ii) with respect to claims made by the a GE Indemnified Party, net of any expenses incurred by to the extent such Indemnified Party in collecting such amountclaim is reserved as a dollar amount on the Closing Date Balance Sheet. (b) The Indemnifying Notwithstanding anything contained herein to the contrary, the amount of any Losses incurred or suffered by a GE Indemnified Party or an Xxxxxx Indemnified Party entitled to indemnification hereunder pursuant to Section 12.2(a) or Section 12.3(a), as applicable, shall be calculated after giving effect to: (i) any insurance proceeds received by such Person (or any of its Affiliates) with respect to such Losses; (ii) any Tax benefit or detriment actually realized by such Person (or any of its Affiliates) arising from the facts or circumstances giving rise to such Losses or from receipt of the indemnity payment; and (iii) any recoveries obtained by such Person (or any of its Affiliates) from any other third Person. Each such Person shall exercise its commercially reasonable efforts to obtain such proceeds, benefits and recoveries. If any such proceeds, benefits or recoveries are received by such Person (or any of its Affiliates) with respect to any Losses after such Person (or any Affiliate) has received the benefit of any indemnification hereunder with respect thereto, such Person (or such Affiliate) shall pay to the party providing such indemnification the amount of such proceeds, benefits or recoveries, less such Person’s expenses (up to the amount of the indemnification payment). (c) Xxxxxx shall not be liable under Section 9.02 12.2 for any Losses (inor shall any such Losses reduce the $100,000,000 deductible provided in clause (x) Damages of the last paragraph of Section 12.2(a)) relating to any matter to the extent that there is included any GE Indemnified Party was reimbursed for such Losses pursuant to the purchase price adjustment set forth in the Preliminary Balance Sheet a specific liability Section 3.3 or reserve relating would have been reimbursed for such Losses pursuant to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitsadjustment if the Minimum Net Worth Amount used in calculating such adjustment was $2,078,228,000. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) The no Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the final determination of the Closing Date Indebtedness or the Closing Date Cash Adjustment Amount pursuant to Section 2.09(c); (b) each Indemnified Party shall take reasonably prudent steps consistent with customary business practices to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby after becoming actually aware of the incurrence of such Damages; (c) the amount of any Damages payable Damage for which an Indemnified Party claims indemnification under Section 9.02 by the Indemnifying Party this Agreement: (i) shall be net of reduced by any amounts recovered insurance proceeds actually received from third party insurers with respect to such Damage; (ii) shall be reduced by any reduction in Taxes actually paid (or recoverable any increase in any Tax refund actually received) by the Indemnified Party under applicable insurance policies as a result of the incurrence or payment of such Damage in the taxable year of the incurrence or payment of such Damage, in any prior taxable year or in the next succeeding taxable year following the incurrence or payment of such Damage; and (iii) shall be reduced by indemnification or reimbursement payments actually received from third parties with respect to such Damage, net, in the case of each of clauses (i) and (ii) above, of any other third party reasonable costs associated with indemnification obligations or from the recovery of such amounts. In the event any other Person alleged to be responsible therefor. If the Indemnified Party receives actually recovers any amounts under applicable insurance policiesproceeds, from indemnity payments or any other third third-party with indemnification obligations or from any other Person alleged to be responsible for recoveries in respect of any Damages, in each case at any time subsequent to an any indemnification payment by the Indemnifying Partypursuant to this ARTICLE IX, then such Indemnified Party shall thereafter promptly reimburse the Indemnifying Party for any indemnity payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, Party (net of any costs, fees or expenses incurred by such the Indemnified Party in collecting such amount.); (bd) The Indemnifying in the event an Indemnified Party shall not recover Damages in respect of a claim of indemnification under this ARTICLE IX, no other Indemnified Party shall be entitled to recover the same Damages in respect of such claim for indemnification such that there will be no “double recovery” of Damages in respect of the same claim; (e) except with respect to those actually awarded and paid on account of a Third Party Claim, no Party shall be liable for punitive or exemplary damages, whether based on contract, tort, strict liability, other Law or otherwise and whether or not arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault; (f) the amount of any Damage for which an Indemnified Party claims indemnification under Section 9.02 for this Agreement shall not include the costs of compliance with any (i) Damages relating equitable remedies resulting from any Action subject to the indemnification hereunder, including the costs of compliance with any matter prospective injunctive relief or the associated need to change the relevant business practices on a going-forward basis except to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating such remedies have been consented to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date by the Indemnified Party has actual knowledge in accordance with the provisions of any information that would cause one or more of the representations and warranties made by the Indemnifying Party this Agreement, such consent not to be inaccurate as of the date madeunreasonably withheld, the conditioned or delayed; (g) no Indemnified Party shall have no be entitled to indemnification pursuant to this ARTICLE IX, to xxx for, or to assert any other right or remedy after the Closing with respect to, any Damages, causes of action or other claims to the extent they are possible or potential Damages, causes of action or claims that such inaccuracy party believes may be asserted rather than Damages, causes of action or claims that have, in fact, been filed of record against such Indemnified Party or paid or incurred by such Indemnified Party; and (h) notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and shall be deemed the Indemnified Parties hereby waive to have waived its rights to indemnification in respect thereofthe fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. (a) Each Indemnified Party and Indemnified Tax Party shall use its reasonable best efforts to obtain all insurance proceeds (including proceeds under the R&W Insurance Policy) or other payments from third parties. The amount of any Damages payable Loss for which each Indemnified Party may be entitled to seek indemnification under Section 9.02 this Agreement, and the amount of Taxes for which each Indemnified Tax Party may be entitled to seek indemnification under this Agreement, will be reduced by the Indemnifying Party shall be net amount of (x) any amounts recovered insurance proceeds (including proceeds under the R&W Insurance Policy), or recoverable other payment from a third party actually received, realized or retained by the Indemnified Party under applicable insurance policies from or any other third party with indemnification obligations of its Affiliates (or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyTax Party or any of its Affiliates) with respect to such Loss (or Taxes), net less the amount of any expenses incurred by it in procuring such recovery and (y) any net Tax benefit arising from the incurrence or payment of such Loss (or Taxes) actually realized by the Indemnified Party or any of its Affiliates (or by the Indemnified Tax Party or any of its Affiliates) during the Post-Closing Tax Period prior to the incurrence or payment of such Loss (or Taxes), or the year of such incurrence or payment of such Loss (or Taxes). In computing the amount of any such Tax benefit, (i) each Indemnified Party and Indemnified Tax Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the incurrence or payment of any indemnified Loss or indemnified Taxes and (ii) an Indemnified Party or an Indemnified Tax Party shall be deemed to have “actually realized” a net Tax benefit to the extent that, and at such time as, the amount of cash Taxes payable by such Indemnified Party or Indemnified Tax Party is actually reduced below the amount of cash Taxes that such Indemnified Party would be required to pay but for the incurrence or payment of such Loss (or Taxes), in collecting such amounteach case, as determined by the Indemnified Party or the Indemnified Tax Party in good faith. (b) The If the Indemnified Party, after having received any indemnification payment pursuant to this Agreement with respect to a Loss, subsequently receives or realizes any insurance proceeds (including proceeds under the R&W Insurance Policy), or other payment, such Person will promptly refund and pay to the Indemnifying Party shall not be liable an amount equal to such insurance proceeds (including proceeds under Section 9.02 for the R&W Insurance Policy), or payment (after deducting therefrom the amount of any (i) Damages relating to any matter expenses incurred by it in procuring such recovery, to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge did not already receive payment for such expenses from the Indemnifying Party), but not in excess of any information that would cause one amount previously paid by or more on behalf of the representations and warranties made by the Indemnifying Party to be inaccurate as or on behalf of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofof such matter.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations policies, or from any other Person alleged to be responsible therefor. therefor (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including any Recovery Costs) and reduction in Taxes actually realized by the person that incurred the Damages, as a result of the Tax items arising from the incurrence or payment of any such Damages, such reduction to be determined on a “with and without basis.” If such reduction in Taxes is realized or the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, in either case, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to to, as applicable, the amount of such reduction in Taxes or the amount received by the Indemnified Party, Party (net of any expenses incurred by such the Indemnified Party in collecting such amount, including any Recovery Costs). (ba) The Indemnifying Party shall not be liable under Section 9.02 (1) for any (i) Damages relating to any matter to the extent that such matter has been taken into account in connection with the Purchase Price adjustment under Section 2.06 or (1) if there is included in the Preliminary Balance Sheet Financial Statements a specific liability or reserve relating to such matter. (b) Each Indemnified Party shall, (ii) consequential or punitive Damages or (iii) and shall cause its respective Affiliates to, use reasonable efforts to mitigate any Damages for lost profitswhich such Indemnified Party seeks indemnification under this Agreement; provided that neither the Indemnified Party nor any of their respective Affiliates or Subsidiaries shall be required to incur any out-of-pocket expenses to third parties, commence any Legal Proceeding or offer or grant any accommodation (financial or otherwise) to any third party to mitigate. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Each Indemnified Party shall have no right use reasonable efforts to collect any amounts available under insurance coverage, or remedy after the Closing with respect from any other Person alleged to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofresponsible, for any Damages payable under Section 9.02.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 11.02 by the Indemnifying Party shall be (A) grossed up for any Taxes payable on the receipt of the indemnity payment such that the net amount received after the payment of all such Taxes equals the amount of Damages and (B) net of any (i) amounts recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor, and (ii) Tax benefit that has been actually realized by the Indemnified Party or its Affiliates (in the form of an increase in cash refunds received or as a reduction in Taxes otherwise due) arising from the incurrence or payment of any such Damages. If the Indemnified Party (A) receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses or Taxes incurred by such Indemnified Party in collecting such amount or (B) actually realizes or receives any net Tax benefit in the year the Damages were incurred (or the immediately succeeding year) that was not initially included in the computation of Damages, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of such net Tax benefit, net of any out-of-pocket expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 8.09 or Section 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor, and (ii) amount by which the net Tax liability of the Indemnified Party or its Affiliates is actually reduced in any Tax period as a result of the indemnified loss or the amount of a Tax refund that is generated as a result of such indemnified loss, and any related interest received from the applicable Taxing Authority. The Indemnified Party shall use commercially reasonable efforts to file, notice and pursue any claims under the Indemnified Party’s applicable insurance policies that cover any indemnifiable Damages hereunder. If the Indemnified Party (i) receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability amount or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding receives any other provision of this Agreement net Tax benefit subsequent to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made an indemnification payment by the Indemnifying Party to be inaccurate as of the date madeParty, the then such Indemnified Party shall have no right or remedy after promptly pay to the Closing with respect Indemnifying Party the amount of such net Tax benefit (as computed pursuant to this Section 11.06), net of any out-of-pocket expenses incurred by such inaccuracy and shall be deemed to have waived its rights to indemnification Indemnified Party in respect thereofcollecting such amount.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) The no Buyer Indemnitee shall be entitled to indemnification under this Article IX to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Final Closing Net Working Capital or to the extent such Buyer Indemnitee has otherwise been compensated with respect thereto pursuant to the Working Capital Adjustment; (b) each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby; CH\1406641 (c) the amount of any Damages payable Damage for which an Indemnified Party claims indemnification under Section 9.02 by the Indemnifying Party this Agreement shall be net reduced by (i) the amount of any amounts recovered or recoverable insurance proceeds actually received by an Indemnified Party with respect to such Damage, (ii) the amount of any Tax benefits realized with respect to such Damage, assuming such Tax benefits are fully utilized by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet tax year in which the Damage is sustained and applying a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or 37% Tax rate and (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contraryindemnification, if on the Closing Date the contribution, offset or reimbursement payments actually received by an Indemnified Party has actual knowledge of any information from third parties with respect to such Damage; provided, that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have use commercially reasonable efforts to obtain such insurance proceeds or indemnification, contribution, offset or reimbursement payments from the applicable payors thereof; (d) in no right event shall any Indemnifying Shareholder be liable under this Article IX for any Damages arising from the gross negligence, strict liability of or remedy after violation of any Law by any Buyer Indemnitee (except for the gross negligence, strict liability of or violation of any Law by the Company or any of its Subsidiaries occurring prior to the Closing Date) or arising from an action taken or not taken by the Company or the Indemnifying Shareholders at the request of or with the express consent of any Buyer Indemnitee; (e) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification this Article IX, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification; and (f) for purposes of this Article IX, any breach of representations, and the calculation of Damages with respect to such inaccuracy and thereto, shall be deemed determined without regard to have waived its rights to indemnification any “material,” “in respect thereofall material respects” or “Material Adverse Effect” qualification contained therein.

Calculation of Damages. (a) The amount of Damages suffered by any Damages payable under Section 9.02 by the Indemnifying Indemnified Party shall be net of calculated after giving effect to any amounts recovered or recoverable by the Indemnified Party under applicable from third parties, including insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, proceeds (net of any expenses deductibles or other Damages incurred by such Indemnified Party in collecting as a result of such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for claim, all direct collection expenses and any (i) Damages relating to increased premium costs), and taking into account any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability tax benefit actually realized or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date incurred by the Indemnified Party has actual knowledge and its Affiliates that is associated with such Damages or the receipt of an indemnification payment in respect thereof (it being understood and agreed that the Indemnified Parties shall use their commercially reasonable efforts to seek insurance recoveries in respect of Damages to be indemnified hereunder). If any information that would cause one insurance proceeds or more other recoveries from third parties are actually realized by an Indemnified Party subsequent to the receipt by such Indemnified Party of an indemnification payment hereunder in respect of the representations and warranties made by the Indemnifying Party claims to be inaccurate as of the date madewhich such insurance proceedings or third party recoveries relate, the Indemnified Party shall have no right or remedy after hold such amounts in trust, and appropriate refunds shall be made promptly to the Closing with respect Indemnifying Party regarding the amount of such indemnification payment. Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the same set of facts giving rise to such inaccuracy and liability constituting a breach of more than one representation, warranty, covenant or agreement. No liability or obligation shall be deemed to have waived its rights constitute a breach of any representation, warranty, covenant or agreement of the Company or entitle Parent to indemnification in respect thereofhereunder to the extent that the liability or obligation is properly accrued for or reflected on the final Closing Payment Adjustment Statement. The Indemnified Parties shall use their respective commercially reasonable efforts to mitigate any Damages to the extent required by any Legal Requirement.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 11.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from policies, net of any other third party with indemnification obligations premium increases, or from any other Person alleged to be responsible therefortherefor and (ii) Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages in the taxable year the loss resulting in such Damages is incurred or the Damages are paid or any prior year. No Indemnified Party shall have any obligation to pursue recovery under any insurance policies or indemnity, contribution or other similar contracts. The Indemnifying Party shall have the right to be informed of all such efforts. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) For the purposes of clause Section 11.02(a) above only, “Tax Benefit” means, with respect to any event for which an indemnification payment is made under Section 11.02, the net Tax benefit actually realized as a result of the Damages incurred by the Indemnified Party, less any costs or expenses incurred in connection with the receipt of such Tax benefits. An Indemnified Party shall be deemed to have “actually realized” a net Tax benefit to the extent that, and at such time as, the amount of Taxes paid by it and its Affiliates is reduced below the amount of Taxes that such Persons would have been required to pay but for the applicable Damages taking into account taxes imposed on the Tax Benefits. In computing the amount of any Tax Benefit, an Indemnified Party and its Affiliates shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any items arising from the incurrence or payment of any Loss for which indemnification is provided under this ARTICLE 11. If the Indemnified Party or any of its Affiliates actually realize any Tax Benefits subsequent to an indemnification payment by the Indemnifying Party in the taxable year the loss resulting in such Damages is incurred or the Damages are paid or any prior year, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefits. (c) The Indemnifying Party shall not be liable under Section 9.02 11.02 for any (i) Damages relating to any matter to the extent that (A) there is included in the Preliminary Balance Sheet Closing Statement of Assets and Liabilities a specific liability or reserve relating to such matter, or (B) the Indemnified Party had otherwise been compensated for such matter pursuant to the Purchase Price adjustment under Section 2.11; (ii) consequential or punitive Damages or unless actually awarded in a Third Party Claim; (iii) Damages for lost profits; (iv) Damages that arise, or are increased, as a result of a change in Applicable Law (including but not limited to Tax laws) after the Closing Date; or (v) Damages for Taxes attributable to Post-Closing Tax Periods (other than Damages related to (x) Taxes which are Excluded Liabilities, or (y) breaches of representations contained in Section 3.19(c), Section 3.19(g) or Section 3.19(h)). For the avoidance of doubt, Damages for Taxes attributable to Post-Closing Tax Periods shall not include any interest or penalty imposed with respect to any Taxes arising in a Pre-Closing Tax Period. (cd) Notwithstanding Each Indemnified Party shall use commercially reasonable efforts to mitigate in accordance with Applicable Law any other loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement to the contraryin respect of that loss, if on the Closing Date the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received. Without limiting the foregoing, Buyer and the Company shall, and shall cause their respective affiliates to, use commercially reasonable efforts to mitigate in accordance with Applicable Law any Damages incurred by any of them in connection with any False Advertising Claim that relates to an Excluded Liability. (e) For all purposes of this ARTICLE 11 only, once it has actual knowledge been established that there has been any breach of any information that would cause one representation or more warranty, or any breach of any covenant or agreement, when calculating the representations and warranties made amount of Damages resulting from such breach of any representation, warranty, covenant or agreement, any Material Adverse Effect or other materiality qualifier contained in any such representation or warranty will be disregarded. (f) Notwithstanding the limitations on indemnification set forth in Section 11.02, such limitations shall not apply in the event of fraud by the Indemnifying Party. (g) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Damages pursuant to be inaccurate as Section 11.02 and the Indemnified Party could have recovered all or a part of such Damages from a third party (a “Potential Contributor”) based on the date madeunderlying Claim asserted against the Indemnifying Party, the Indemnified Party shall have no right or remedy after the Closing with respect to assign such inaccuracy and shall be deemed to have waived of its rights to indemnification in respect thereofproceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment; provided that the Indemnified Party shall not be required to assign any right to proceed against a Potential Contributor if the Indemnified Party reasonably determines that such assignment would be materially detrimental to its reputation or future business prospects.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of (i) any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor (net of (A) any deductibles, co-payments, self-insured amounts payable by the Indemnified Party or its Subsidiaries, premium increases (to the extent attributable directly to the applicable benefit to the Indemnified Party) or other out-of-pocket costs and expenses (including reasonable legal fees and expenses, if any) actually and reasonably incurred by the Indemnified Party in seeking such insurance proceeds and (B) any Taxes imposed on the Indemnified Party or any of its Subsidiaries in respect of the receipt or accrual of such insurance proceeds) and (ii) the Indemnified Party’s share of any actual reduction in cash Taxes payable that are not Excluded Taxes (or increase in the cash Tax refunds receivable that are not for the benefit of Parent pursuant to Section 6.03) realized within three years of the Closing by any of the Acquired Companies as a consequence of, or in connection with, the circumstances giving rise to the Damages subject to indemnification under this ‎Article 9 (calculated on a “with and without” basis). If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article 13 (or any other provision of this Agreement that expressly provides for indemnification) by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable actually received by the Indemnified Party under applicable non-affiliated insurance policies from any other third party with indemnification obligations (including the Environmental Insurance Policy), or from any other Person alleged to be responsible therefor, net of any expenses related to the receipt of such insurance proceeds, payments or recoupment, including retrospective premium adjustments, and (ii) Tax benefit recognized and realized by the Indemnified Party (based solely on the Indemnified Party’s determination and calculation) arising from the incurrence or payment of any such Damages. If the Indemnified Party receives any amounts under applicable non-affiliated insurance policiespolicies (including the Environmental Insurance Policy), from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, Party net of any expenses incurred by related to the receipt of such Indemnified Party in collecting such amountproceeds, payments or recoupment. (b) The Indemnifying Party shall not be liable under Section 9.02 this Agreement for any (i) Damages relating to any matter to the extent that there the Indemnified Party had been compensated for such matter pursuant to the adjustments under Sections 2.08 or 2.09. The above notwithstanding, by waiving its right to a double recovery under this Section, the Indemnified Party is included in not waiving any rights it may have under Sections 2.08 or 2.09 to object, contest, or audit the Preliminary Balance Sheet a specific liability adjustments and allocations made under Sections 2.08 or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits2.09. (c) Notwithstanding Each Indemnified Party must use its reasonable best efforts to mitigate any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation within ten (10) Business Days after the benefit is received. (d) Each Indemnified Party shall use its reasonable best efforts to collect any amounts available under unaffiliated insurance coverage (including under the Environmental Insurance Policy), or from any other Person potentially responsible, for any Damages payable under this Article 13 (or any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofexpressly provides for indemnification).

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 ‎Section 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor, and (ii) Tax Benefit actually received by the Indemnified Party arising from the incurrence or payment of any such Damages. For purposes hereof, “Tax Benefit” means, with respect to any Damages subject to any indemnity under ‎Article 11, an amount by which the net Tax liability of the Indemnified Party (or a group filing a Tax Return that includes such Indemnified Party) is actually reduced in, or prior to, the year the Damages were incurred solely as a result of Damages or the amount of Tax refund that is generated solely as a result of such Damages, and any related interest received from the applicable Taxing Authority. If the Indemnified Party (A) receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 9.02 for amount and any (i) Damages relating to any matter to the extent that there is included increase in the Preliminary Balance Sheet a specific liability or reserve relating to applicable premium of any such matter, (ii) consequential or punitive Damages insurance policy or (iiiB) Damages for lost profits. (c) Notwithstanding receives any other provision of this Agreement net Tax Benefit subsequent to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made an indemnification payment by the Indemnifying Party to be inaccurate as of the date madeParty, the then such Indemnified Party shall have no right or remedy after promptly pay to the Closing with respect Indemnifying Party the amount of such net Tax Benefit up to the amount received by the Indemnified Party, net of any expenses incurred by such inaccuracy and shall be deemed to have waived its rights to indemnification Indemnified Party in respect thereofcollecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article 8 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor (net of any Tax and expenses, including the amount of any increases in insurance premiums (but only to the extent such increases actually and directly result from the applicable claim and are payable in respect of the two year period commencing on the date such claim is made), incurred by the Indemnified Party in connection with such recovery), and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages at any time prior to MCK’s direct or indirect disposition of its interest in the Company. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying PartyParty or equity adjustment pursuant to Section 8.06(a), then such Indemnified Party’s relative Membership Percentage in the Company shall be adjusted, or such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment payment, up to the equity adjustment or payment amount received by the Indemnified Party, net of any expenses Tax and expenses, including the amount of any increases in Table of Contents insurance premiums (but only to the extent such increases actually and directly result from the applicable claim and are payable in respect of the two year period commencing on the date the applicable claim is made), incurred by such Indemnified Party in collecting such amount. (b) . The Indemnifying Indemnified Party shall not use commercially reasonable efforts to pursue any claim against any insurer under its insurance policies (or insurance policies under which it is a named insured) or any other Person alleged to be liable under Section 9.02 responsible for any Damages (iother than the Indemnifying Party) for Damages relating to any matter for which it seeks indemnification hereunder and, subject to the extent that there is included in foregoing sentence, the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date expenses reasonably incurred by the Indemnified Party has actual knowledge of in pursuing any information such claim shall be Damages subject to indemnification hereunder; provided that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and nothing in this Section 8.05 shall be deemed to have waived its rights obligate an Indemnified Party to indemnification in respect thereofmaintain any insurance policy or to file a lawsuit or commence any other proceeding against any insurer or any other Person.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 ‎Section 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party or its Affiliates (on behalf of such Indemnified Party) under applicable insurance policies from policies, indemnities or other reimbursement arrangements (net of any deductible or co-pay amounts and any other third party costs or expenses reasonably incurred in connection therewith, including all premiums and other costs of such insurance policies, or any increase in premium payable by such Indemnified Party, or any retroactive adjustment under any such policy, or costs or expenses incurred in connection with indemnification obligations pursuing a claim thereunder), and (ii) Tax benefit actually realized by the Indemnified Party or its Affiliates arising from the payment of any other Person alleged such Damages in or prior to be responsible thereforthe Tax year in which the Damages were incurred or the three (3) taxable years immediately following such Tax year (net of all out-of-pocket costs, fees and expenses, including reasonable documented and out-of-pocket advisors and attorneys’ fees and expenses, incurred in connection with procuring such Tax benefit). If the Indemnified Party Party, in respect of any claim, (x) receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying PartyDamages for such claim, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred the amount of Damages paid to the Indemnified Party by such the Indemnifying Party in connection with providing respect to such indemnification payment up to the amount received by the Indemnified Partyclaim, net of any expenses (including reasonable documented and out-of-pocket advisors’ and attorneys’ fees and expenses) incurred by such Indemnified Party in collecting such amount. amount or (by) The actually realizes during the three (3) year period referenced in Section 11.07(a)(ii) any Tax benefit described in Section 11.07(a)(ii) subsequent to an indemnification payment by the Indemnifying Party that was not previously taken into account in the indemnification payment, then such Indemnified Party shall not be liable under Section 9.02 for any (i) Damages relating promptly pay to any matter the Indemnifying Party the amount of such Tax benefit solely to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement it relates to the contraryindemnification payment previously received (as computed pursuant to this Section 11.07(a), if on the Closing Date the Indemnified Party has actual knowledge net of any information that would cause one or more all out of the representations pocket costs, fees and warranties made by the Indemnifying Party to be inaccurate as of the date madeexpenses, the Indemnified Party shall have no right or remedy after the Closing including reasonable advisors and attorneys’ fees and expenses, incurred in connection with respect to procuring such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereofTax benefit).

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in cash by the Indemnified Party (such value to be calculated in accordance with the method described in Section 7.06(c)) arising from the incurrence or payment of any such Damages in (x) the Tax year such Damages were incurred and (y) any succeeding Tax year ending on or prior to the date of payment of such Damages. If, in any of the first five Tax years ending after the date of such payment, the Indemnified Party actually realizes value in cash with respect to a Tax Benefit made allowable by such incurrence or payment of any such Damages, the Indemnified Party shall pay the Indemnifying Party an amount equal to the value so realized within 90 days of the filing of the applicable Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowable. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. . [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Schedules (bor similar attachments) The Indemnifying Party referred to and listed herein shall not have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (or similar attachment) will be liable under Section 9.02 for any (i) Damages relating to any matter furnished to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profitsCommission upon request. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party has actual knowledge of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 11.02 by the Indemnifying Party shall be net of any amounts actually recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies from any other third party with indemnification obligations or from any other Person alleged to be responsible therefortherefor and any Tax benefit actually realized by the Indemnified Party or its Affiliates arising from the incurrence or payment of any such Damages. The amount of any such Tax benefit shall be calculated as the amount by which the Tax liability of the Indemnified Party (or local country Tax group of Affiliates of and including such Indemnified Party), in each case other than (x) a 338(h)(10) Entity and its Subsidiaries and (y) in respect of the Transferred Assets and Assumed Liabilities of the Canada operations of the Business, is actually reduced (calculated on a with and without basis at the highest applicable marginal rate as the last item applied, and net of any out-of-pocket fees, costs and expenses incurred by such Indemnified Party or local country Tax group) if such Indemnified Party (or such local country Tax group) realizes sufficient taxable income to fully offset such Damage in a Post-Closing Tax Period that includes the year in which such Damages are incurred or in any of the following three Tax years. If the Indemnified Party (i) receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any fees, costs and expenses incurred by such Indemnified Party in collecting such amount or (ii), in each case other than (x) a 338(h)(10) Entity and its Subsidiaries and (y) in respect of the Transferred Assets and Assumed Liabilities of the Canada operations of the Business, realizes any net Tax benefit subsequent to an indemnification payment by the Indemnifying Party that was not previously taken into account in the indemnification payment, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of such net Tax benefit (as computed pursuant to this Section 11.06(a)), net of any out-of-pocket fees, costs and expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party . Nothing in this Section 11.06 shall not be liable under Section 9.02 for any (i) Damages relating to any matter to the extent that there is included in the Preliminary Balance Sheet a specific liability or reserve relating to such matter, (ii) consequential or punitive Damages or (iii) Damages for lost profits. (c) Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the require Buyer Indemnified Party has actual knowledge of to pay over to Seller any information that would cause one or more of proceeds received under the representations and warranties made by the Indemnifying Party to be inaccurate as of the date made, the Indemnified Party shall have no right or remedy after the Closing with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.Transactional Insurance Policy. #88639600v31