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 (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies 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, 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.

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 Closing Balance Sheet (ito the extent that such reserves, liability accruals or other provisions for such Damages are reflected in good faith in accordance with GAAP (which for purposes hereof shall be deemed not to apply to the calculation of Taxes nor to require the inclusion of footnotes) in Closing Working Capital) and (ii) net of any amounts recovered or recoverable by the Indemnified Party under 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 third Person, the Indemnified Party expressly agrees to promptly notify the applicable insurance policies carrier of any such claim or from any other Person alleged loss and tender defense thereof to be responsible thereforsuch carrier, and (ii) shall also promptly notify any potential third-party indemnitor or contributor which may be liable for any portion of such losses or claims. The Indemnified Party agrees to pursue, at the value cost and expense of the Indemnitor, such claims diligently and to reasonably cooperate, at the cost and expense of the Indemnitor, 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 for any Tax Benefit actually realized in cash Damage indemnified by them, which is subsequently recovered 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 under 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, 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 requestinsurance.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article 11 by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies policies, or from any other Person alleged to be responsible therefor, therefor and (ii) the value of any net Tax Benefit 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 and its Affiliates as a result of the incurrence or payment of any such Damages in by the Indemnified Party, determined on a “with-and-without basis” (x) the a “Tax year such Damages were incurred and (y) any succeeding Tax year ending on or prior to the date of payment of such DamagesBenefit”). If, in any of the first five Tax years ending after the date of such payment, If the Indemnified Party actually realizes value in cash with respect or any of its Affiliates receive any Tax Benefits subsequent to a Tax Benefit made allowable an indemnification payment by the Indemnifying Party, then such incurrence or payment of any such Damages, the Indemnified Party shall promptly pay to the Indemnifying Party an the amount equal to the value so realized within 90 days of the filing of the applicable such Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowableBenefits. If the Indemnified Party receives any amounts under applicable insurance policies, 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 The Indemnified Party shall diligently prosecute any claims for recovery under applicable insurance policies, and from any other Person alleged to be responsible for any Damages, and shall diligently pursue any and all claims for Tax credits or refunds to the extent such Tax credits or refunds would give rise 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 requestTax Benefit.

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 (iii) net of any amounts recovered or recoverable by the Indemnified Party under 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 third Person, the Indemnified Party expressly agrees to promptly notify the applicable insurance policies carrier of any such claim or from any other Person alleged loss and tender defense thereof to be responsible thereforsuch carrier, and (ii) shall also promptly notify any potential third party indemnitor or contributor which may be liable for any portion of such losses or claims. The Indemnified Party agrees to pursue, at the value cost and expense of the Indemnitor, such claims diligently and to reasonably cooperate, at the cost and expense of the Indemnitor, 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 for any Tax Benefit actually realized in cash Damage indemnified by them, which is subsequently recovered 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 under 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, 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 requestinsurance.

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 (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies (other than any 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), (iib) reduced by refund, current reduction or reduction within two (2) years following the value of any Tax Benefit actually realized year the applicable Damages were paid in cash Taxes payable 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 as a result of such Damages. If, in any of and (c) reduced to the first five Tax years ending after extent that the date amount of such payment, Damages was reflected in the Indemnified Party actually realizes value in cash with respect to a Tax Benefit made allowable by such incurrence or payment calculation 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 allowableClosing Working Capital. If the Indemnified Party receives any amounts under applicable insurance policies, 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. [**] = 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.

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 (i) amounts actually previously recovered or recoverable by the Indemnified Party under applicable insurance policies or from in respect of the Damages giving rise to the right of indemnification (net of any other Person alleged increase in premiums to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in cash paid 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 insurance carrier’s payment of such Damages. If, in claim); (ii) increased by any of the first five Tax years ending after the date of such payment, 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 realizes value in cash with respect to a Tax Benefit made allowable realized by such incurrence or payment of any such Damages, the Indemnified Party shall pay arising in 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 taxable year in which such Damages are incurred or, if later, at the Tax Benefit time the indemnity payment is made allowablemade. If the Indemnified Party receives any amounts in respect of the Damages giving rise to the right of indemnification under applicable insurance policies, 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). [**] = Portions of this exhibit have been omitted Notwithstanding the foregoing, Seller shall not be required to pay Damages 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 Section 8.3 if, 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 solely to the Commission upon requestextent, liability for such Damages is reflected in the calculation of the Final Closing Net Working Capital.

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 policies, or from any other Person alleged to be responsible therefor, therefor and (ii) the value of any net Tax Benefit 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 and its Affiliates as a result of the incurrence or payment of any such Damages in by the Indemnified Party, determined on a “with-and-without basis” (x) the a “Tax year such Damages were incurred and (y) any succeeding Tax year ending on or prior to the date of payment of such DamagesBenefit”). If, in any of the first five Tax years ending after the date of such payment, If the Indemnified Party actually realizes value in cash with respect or any of its Affiliates receive any Tax Benefits subsequent to a Tax Benefit made allowable an indemnification payment by the Indemnifying Party, then such incurrence or payment of any such Damages, the Indemnified Party shall promptly pay to the Indemnifying Party an the amount equal to the value so realized within 90 days of the filing of the applicable such Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowableBenefits. If the Indemnified Party receives any amounts under applicable insurance policies, 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. [**] = Portions of this exhibit have been omitted pursuant 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 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 requestTax Benefit.

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 or from any other Person alleged to be responsible therefor, and (ii) amount by which the value net Tax liability of any Tax Benefit actually realized in cash by 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 value to be calculated in accordance with the method described in Section 7.06(c)) arising indemnified loss, and any related interest received 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 Damagesapplicable Taxing Authority. 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 The Indemnified Party shall pay use commercially reasonable efforts to file, notice and pursue any claims under the Indemnifying Party an amount equal to the value so realized within 90 days of the filing of the Indemnified Party’s applicable Tax Return or insurance policies that cover any adjustment for the Tax year in which the Tax Benefit is made allowableindemnifiable Damages hereunder. If the Indemnified Party (i) receives any amounts under applicable insurance policies, 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. [**] = Portions amount or (ii) receives any net Tax benefit subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of this exhibit have been omitted such net Tax benefit (as computed 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 Section 11.06), net of any omitted schedule (or similar attachment) will be furnished to the Commission upon requestout-of-pocket expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The Notwithstanding any other provision of this Agreement, in no event shall Seller or Purchaser be liable for diminution of value or punitive, consequential, indirect, incidental or special damages of any kind or nature, regardless of the form of action through which such damages are sought unless such damages are actually recovered or recovered by a third party in a Third Party Claim. Notwithstanding the foregoing, 60 the amount of any Damages payable for which indemnification is provided under Section 9.02 by the Indemnifying Party this Article VI shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under any Contracts or applicable insurance policies or from any other Person alleged with respect 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 To the first five Tax years ending after the date of such payment, the extent an Indemnified Party actually realizes value in cash with respect to recognizes any net Tax Benefits (as defined immediately below) as a Tax Benefit made allowable by such incurrence or payment result of any such DamagesDamages for which indemnity is paid under this Article VI, the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payments received from the Indemnifying Party an amount equal with respect to such Damages) to the value so realized Indemnifying Party within 90 60 days of the filing of the applicable such Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowable. If Benefits being recognized by the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged (to be responsible the extent such Tax Benefits are realized prior to the payment of the indemnity for any the Damages, subsequent to an indemnification payment the amount of the indemnity for the Damages shall be reduced by the Indemnifying Partyamount of Tax Benefits actually realized). For this purpose, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection be deemed to recognize a tax benefit (“Tax Benefit”) with providing such indemnification payment up respect to a taxable year only if, and to the amount received by extent that, the Indemnified Party’s liability for cash Taxes for such taxable year, net calculated by excluding any Tax items attributed to the Damages, exceeds the Indemnified Party’s actual liability for cash Taxes for such taxable year, calculated by taking into account any Tax items attributed to (i) the Damages or (ii) the receipt 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 requestindemnification payments.

Calculation of Damages. Damages shall include, without limitation, the amount of any insurance deductible paid with respect to the claim. The amount of Damages payable by an Indemnifying Party under this Article 10 shall be (a) The amount reduced by any insurance proceeds or other reimbursement arrangements, by way of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any (i) amounts indemnification or otherwise, recovered or recoverable by the Indemnified Party under applicable insurance policies with respect to the claim for which indemnification is sought (whether or from any other Person alleged not the Indemnified Party chooses to be responsible thereforpursue such recovery), and (iib) reduced by the net present value of any Tax Benefit actually benefits reasonably expected to be realized in cash (calculated using a discount rate of 8%) by the Indemnified Party to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense, and (c) determined without duplication of recovery by reason of the state of facts giving rise to such value Damages constituting a breach of more than one representation, warranty, covenant or agreement. Except with regard to indemnification for claims actually paid to third parties, Damages payable by an Indemnifying Party under this Article 10 shall not include punitive damages, special damages, damages related to mental or emotional distress, or exemplary damages. Any indemnity payment under this Agreement shall be calculated in accordance with treated as an adjustment to the method Purchase Price for Tax purposes. Each Indemnified Party shall use reasonable efforts to mitigate any Damages for which it may claim indemnification under this Article 10; provided that the out-of-pocket costs of such mitigation shall be recoverable as Damages. When calculating the amount of Damages relating to breaches described in Section 7.06(c)) arising from the incurrence or payment of any such Damages in clauses (x) the Tax year such Damages were incurred and (y) any succeeding Tax year ending on of Section 10.1(a)(i), “Material”, “material respects” and “Material Adverse Effects” qualifiers shall not be given effect (it being understood and agreed that such qualifiers shall be given effect when determining whether 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 not 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, 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 breach 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 requestoccurred).

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 this Article 11 by the Indemnifying Party Person shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies 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 Person receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying PartyPerson, then such Indemnified Party Person shall promptly reimburse the Indemnifying Party Person for any payment made or expense incurred by such Indemnifying Party Person in connection with providing such indemnification payment up to the amount received by the Indemnified PartyPerson, net of any direct, out-of-pocket expenses reasonably incurred by such Indemnified Party Person in collecting such amount. [**] = Portions of this exhibit The Indemnified Person shall seek full recovery and use reasonable commercial efforts to collect any amounts available under such insurance coverage or from such other Person alleged to 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 responsibility therefor, to the Commission upon requestsame extent such Indemnified Person would if such Damages were not subject to indemnification hereunder. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Damages.

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 by the Kenexa Indemnified Party under insurance policies with respect to such Damages and (c) computed after taking into account all Tax consequences to the Kenexa Indemnified Party of (i) amounts recovered the receipt of (or recoverable by the Indemnified Party under applicable insurance policies or from any other Person alleged right to be responsible therefor, receive) the indemnification payment and (ii) the value 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 Tax Benefit actually realized in cash by insurance coverage or other right to indemnification or contribution from any third Person, the Kenexa Indemnified Party (such value expressly agrees to be calculated in accordance with promptly notify the method described in Section 7.06(c)) arising from the incurrence or payment applicable insurance carrier of any such Damages in (x) the Tax year claim or loss and tender defense thereof to such Damages were incurred carrier, and (y) shall also promptly notify any succeeding Tax year ending on potential third party indemnitor or prior to the date of payment contributor which may be liable for any portion of such Damageslosses or claims. If, in any of the first five Tax years ending after the date of such payment, the The Kenexa Indemnified Party actually realizes value in cash agrees to pursue such claims diligently and to reasonably cooperate with respect to a Tax Benefit made allowable by such incurrence each applicable insurance carrier and third party indemnitor or payment of any such Damages, the contributor. The Kenexa Indemnified Party shall pay use its commercially reasonable efforts to seek recoveries under insurance policies and shall reimburse the Indemnifying Party an amount equal to Equityholders for any Damage indemnified by the value so realized within 90 days of Equityholders, which is subsequently recovered by the filing of the applicable Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowable. If the Kenexa Indemnified Party receives under any amounts under applicable insurance policies, 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 requestinsurance.

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 (i) amounts recovered indemnity payment hereunder or recoverable by the Indemnified Party under applicable insurance policies 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 indemnified Damage. The Indemnified Party expressly agrees to promptly notify the applicable insurance carrier of any such Damages in (x) the Tax year claim or loss and tender defense thereof to such Damages were incurred carrier, and (y) shall also promptly notify any succeeding Tax year ending on potential third party indemnitor or prior to the date of payment contributor which may be liable for any portion of such Damages. Iflosses or claims; provided, in any of however, that failure to give timely notice shall not affect the first five Tax years ending after the date of such payment, Indemnitor's obligation to indemnify the Indemnified Party actually realizes value in cash 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 respect each applicable insurance carrier and third party indemnitor or contributor. The Indemnified Party shall use its commercially reasonable efforts to a Tax Benefit made allowable seek recoveries under insurance policies and shall reimburse the Indemnitor(s) for any Damages indemnified by such incurrence or payment of any such Damagesthem, which is subsequently recovered by 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 under 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, 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 of collection. With respect to any Damages that become due from Seller to the Buyer Indemnified Party in collecting such amount. [**] = Portions Parties pursuant to the terms and provisions of this exhibit have been omitted pursuant Article 8, the Buyer Indemnified Parties shall request drawings under the Letter of Credit prior to a confidential treatment request. An unredacted version of this exhibit has been filed separately seeking any payment from Seller directly with the Commission. Schedules (or similar attachments) referred respect 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 requestsuch Damages.

Calculation of Damages. (a) The amount of any Damages payable for which indemnification is provided under Section 9.02 by the Indemnifying Party 7.02 or Section 7.03 shall be net of any (i) any amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies pursuant to any indemnification by or from indemnification Contract with any other Person alleged to be responsible therefor, third party in reimbursement of such Damages and (ii) the value of any Tax Benefit insurance proceeds actually realized received as an offset against such Damages, in cash by the Indemnified Party (such value each case less any costs, expenses, deductibles, premiums, future premium increases, or Taxes incurred in connection therewith. Nothing in this Section 7.07(a) shall be deemed 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 require an Indemnified Party to proceed or seek action or recovery from any third party as a requirement hereunder or as a condition to seeking or recovering indemnification from any Indemnifying Party hereunder or (y) be construed or interpreted as a guaranty of any succeeding Tax year ending on level or prior amount of insurance recovery with respect to any Damages hereunder or as a requirement to obtain or maintain any insurance or to make any claim for insurance as a condition to any indemnification hereunder. (b) Each of the representations and warranties that contains any “Material Adverse Effect,” “material”, or similar materiality qualifications shall be read as though such qualifications were 65 not contained therein for the purposes of determining the amount of Damages to which such Indemnified Party may be entitled under this Article VII in connection with any breach of any representation or warranty, but not for purposes of determining whether such breach has occurred. (c) In calculating Damages, the amount of any indemnified Damages shall be determined without duplication of any amounts resulting in a dollar-for-dollar reduction in the Closing Date Payment pursuant to Section 2.04(c). (d) Parent, Buyer, the Company Entities, and Seller shall each take and shall each cause their respective Affiliates to take commercially reasonable steps (but without the obligation to make any payment or incur any monetary or other obligation) to mitigate any Damages, to the date of payment extent required by Law, for which any Buyer Indemnitee or any Seller Indemnitee could be entitled to indemnification under this Article VII upon becoming aware 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, 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 requestSECTION 7.08.

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 or from any other Person alleged to be responsible therefor, and (ii) amount by which the value net Tax liability of any Tax Benefit actually realized in cash by 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 value to be calculated in accordance with the method described in Section 7.06(c)) arising indemnified loss, and any related interest received 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 Damagesapplicable Taxing Authority. 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 The Indemnified Party shall pay use commercially reasonable efforts to file, notice and pursue any claims under the Indemnifying Party an amount equal to the value so realized within 90 days of the filing of the Indemnified Party’s applicable Tax Return or insurance policies that cover any adjustment for the Tax year in which the Tax Benefit is made allowableindemnifiable Damages hereunder. If the Indemnified Party (i) receives any amounts under applicable insurance policies, 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. [**] = Portions amount or (ii) receives any net Tax benefit subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of this exhibit have been omitted such net Tax benefit (as computed 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 Section 11.06), net of any omitted schedule (or similar attachment) will be furnished to the Commission upon requestout-of-pocket expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 for which indemnification is provided to any party pursuant to this Article IX will be calculated giving effect to (net of) (i) any amounts actually recovered by the Indemnifying Party shall be indemnified party with respect to such Damages under any insurance policies of the Companies (and, with respect to claims for indemnification made by Buyer, Buyer agrees to use commercially reasonable efforts to inquire as to whether any such insurance policies provide coverage for the claim at issue and, if so, to use commercially reasonable efforts to seek recovery thereunder) or from any third-party; (ii) any amounts specifically accrued or reserved for as a current liability or as a deduction from a current asset on the Balance Sheets with respect to such Damages; and (iii) the amount of any Tax benefits actually received (net of any (iTax detriment suffered) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies indemnified party or from any other Person alleged to be responsible therefor, and its Affiliates (ii) each a “Loss Reduction Amount”). If the value amount of any Tax Benefit actually realized Damages incurred by an indemnified party at any time subsequent to the making of a payment by an indemnifying party pursuant to this Article IX is reduced by a Loss Reduction Amount, the amount of such Loss Reduction Amount (less any costs, expenses or premiums incurred in cash connection therewith) will promptly be repaid by the Indemnified Party (such value indemnified party to be calculated in accordance with the method described in Section 7.06(c)) arising indemnifying party. Sellers hereby waive any and every claim for recovery from Buyer for any and all Damages which Buyer recovers as a Loss Reduction Amount. Sellers agree that the incurrence or payment waiver hereunder will preclude the assignment of any such Damages in claim by subrogation (xor otherwise) the Tax year such Damages were incurred and to an insurance company (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, 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 requestPerson).

Calculation of Damages. (a) The In calculating the amount of the Damages to any Indemnified Party under Sections 9.2(a) and 9.2(b), the amount of Damages payable under Section 9.02 by the Indemnifying Party shall will be net of any (i) any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies or from any other Person alleged third party (including insurance proceeds) as a result of the facts or circumstances giving rise to be responsible therefor, the Damages and (ii) the value of any Tax Benefit benefits or Tax losses, in each case net of Tax costs that are actually realized in cash by the Indemnified Party as a result of the incurrence of Damages from which indemnification is sought (such value amounts referred to be calculated in clauses (i) or (ii), a “Reimbursement”). The Indemnified Parties shall use commercially reasonable efforts to pursue payment under or from any insurer or third-party (other than Seller and its Affiliates after the Closing) from which such Indemnified Party is entitled to payment or indemnity in respect of such Damages prior to pursuing payment from any Indemnifying Party or the Escrow Fund, and, without limiting the foregoing, the Purchaser Indemnified Parties shall pursue payment in respect of any Damages from the Escrow Fund in accordance with the method described in Section 7.06(c)) arising terms of the Escrow Agreement prior to pursuing payment from Seller; provided that Purchaser Indemnified Parties may submit a claim against the incurrence or payment Seller and the Escrow Fund pending resolution of any such Damages claim against any insurer or third party, and the Escrow Fund shall not be released until all such claims have been resolved. If any Reimbursement is obtained subsequent to payment to an Indemnified Party in respect of any Damages, then such Reimbursement shall be promptly paid over to the Escrow Agent (xto the extent that (a) amounts have been paid to Purchaser Indemnified Parties out of the Tax year such Damages were incurred Escrow Amount and (yb) any succeeding Tax year ending on or it is prior to the date of payment of such Damages. If, in any expiration of the first five Tax years ending after escrow in accordance with the date of such payment, the Indemnified Party actually realizes value in cash with respect Escrow Agreement) or 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, 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 requestcircumstance).

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 or from any other Person alleged to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in cash received 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. For purposes hereof, “Tax Benefit” means, with respect to any Damages in subject to any indemnity under ‎Article 11, an amount by which the net Tax liability of the Indemnified Party (xor a group filing a Tax Return that includes such Indemnified Party) is actually reduced in, or prior to, the Tax year such the Damages were incurred and (y) any succeeding solely as a result of Damages or the amount of Tax year ending on or prior to the date of payment refund that is generated solely as a result of such Damages. If, in and 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 related interest received from the applicable Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowableTaxing Authority. If the Indemnified Party (A) receives any amounts under applicable insurance policies, 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 amount and any increase in 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 applicable premium of any omitted schedule such insurance policy or (or similar attachmentB) will be furnished receives any net Tax Benefit subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly pay to the Commission upon requestIndemnifying Party the amount of such net Tax Benefit up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of Damages suffered by any Damages payable under Section 9.02 by the Indemnifying Indemnified Party shall be calculated after giving effect to any amounts recovered from third parties, including insurance proceeds (net of deductibles or other Damages incurred by such Indemnified Party as a result of such claim, all direct collection expenses and any (i) amounts recovered increased premium costs), and taking into account any tax benefit actually realized or recoverable incurred by the Indemnified Party under applicable 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 policies or from any other Person alleged recoveries in respect of Damages to be responsible therefor, and (ii) the value of indemnified hereunder). If any Tax Benefit insurance proceeds or other recoveries from third parties are actually realized in cash by the an 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 subsequent to the date receipt by such Indemnified Party of an indemnification payment of such Damages. If, hereunder in any respect of the first five Tax years ending after the date of claims to which such payment, the Indemnified Party actually realizes value in cash with respect to a Tax Benefit made allowable by such incurrence insurance proceedings or payment of any such Damagesthird party recoveries relate, the Indemnified Party shall pay hold such amounts in trust, and appropriate refunds shall be made promptly to the Indemnifying Party an regarding the amount equal 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 liability constituting a breach of more than one representation, warranty, covenant or agreement. No liability or obligation shall constitute a breach of any representation, warranty, covenant or agreement of the Company or entitle Parent to indemnification hereunder to the value so realized within 90 days of extent that the filing of liability or obligation is properly accrued for or reflected on the applicable Tax Return or final Closing Payment Adjustment Statement. The Indemnified Parties shall use their respective commercially reasonable efforts to mitigate 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, 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 Damages to the amount received extent required 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 requestLegal Requirement.

Calculation of Damages. (ai) The To the extent that any claim for indemnification for Damages under this Section 7.4 is covered by insurance held by the Indemnified Party, such Indemnified Party shall use its commercially reasonable efforts to seek recovery from the applicable insurer, provided that the Indemnifying Party agrees to reimburse the Indemnified Party for any reasonable out-of-pocket costs incurred by the Indemnified Party in connection with such recovery. Further, to the extent that any claim for indemnification for Damages under this Section 7.4 is covered by insurance held by the Indemnified Party, such Indemnified Party shall be entitled to indemnification pursuant to this Section 7.4 only with respect to the amount of the Damages that are in excess of (x) the cash proceeds received by such Indemnified Party pursuant to such insurance, minus (y) any Damages increased insurance costs related thereto. If such Indemnified Party receives such net cash insurance proceeds prior to the time such claim is paid, then the amount payable under Section 9.02 by the Indemnifying Party pursuant to such claim shall be reduced by the amount of such proceeds. If such Indemnified Party receives such net of any (i) amounts recovered or recoverable cash insurance proceeds after such claim has been paid, then upon the receipt by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in net cash proceeds pursuant to such insurance up to the amount of Damages incurred by the such 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 Damagesclaim, 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, 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 repay any portion of such amount which was previously paid by 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 satisfaction of 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 requestclaim.

Calculation of Damages. (a) The All Damages for which the Buyer Indemnified Parties are otherwise entitled to indemnification under this ARTICLE 9 shall be reduced by the amount of any Damages payable under Section 9.02 by the insurance proceeds, indemnification payments and other third party recoveries or reimbursement arrangements to which any Buyer Indemnifying Party shall be net or any of any their Affiliates (iincluding the Company Group) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies or from any other Person alleged is entitled 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 respect of such Damages. IfWithout limiting the generality of the foregoing, in the event an Indemnified Party is, or is reasonably expected to be, entitled to any insurance proceeds in respect of the first five Tax years ending after the date of any Damages for which such paymentIndemnified Party is or may be entitled to indemnification pursuant to this ARTICLE 9 under any insurance policy, Contract, or other third-party recovery or reimbursement arrangement, the Indemnified Party actually realizes value in cash shall, and shall cause its Affiliates (including, with respect to Buyer Indemnified Parties, the Company Group) to, concurrent with providing a Tax Benefit made allowable Notice of Claim in accordance with this Agreement, to proceed first by making a claim therefor (or submitting an initial notification of loss in the event the retention has not been met) under such incurrence policy and using its commercially reasonable efforts to seek recovery for and obtain proceeds in respect of such Damages (subject to the applicable retention amounts and other terms and conditions under such insurance policy being met). In the event that any such insurance proceeds, indemnity payments or payment other third-party recoveries are received or realized by any Buyer Indemnified Party or any of their respective Affiliates subsequent to receipt by the Buyer Indemnified Parties of any indemnification payment hereunder in respect of the claims to which such Damagesinsurance proceeds, the Indemnified Party indemnity payments or other third-party recoveries relate, appropriate refunds shall pay the Indemnifying Party an amount equal be made promptly by Buyer to the value so realized within 90 days Seller of all or the filing relevant portion 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, 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 requestpayment.

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 (i) amounts actually previously recovered or recoverable by the Indemnified Party under applicable insurance policies or from in respect of the Damages giving rise to the right of indemnification (net of any other Person alleged increase in premiums to be responsible therefor, and (ii) the value of any Tax Benefit actually realized in cash paid 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 insurance carrier’s payment of such Damages. If, in claim); (ii) increased by any of the first five Tax years ending after the date of such payment, 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 realizes value realized by the Indemnified Party arising in cash connection with respect to a Tax Benefit made allowable by such incurrence the accrual 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 in respect of the Damages giving rise to the right of indemnification under applicable insurance policies, 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). [**] = Portions of this exhibit have been omitted Notwithstanding the foregoing, the Holdings Stockholder shall not be required to pay Damages 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 Section 11.3 if, 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 solely to the Commission upon requestextent, liability for such Damages is reflected in the calculation of the Final Holdings’ Indebtedness or the Final Closing Net 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 IX shall be net of any amounts actually recovered by such Indemnified Party under insurance policies or other collateral sources with respect to such Damages in excess of the sum of (i) amounts recovered or recoverable by the Indemnified Party reasonable, out-of-pocket costs and expenses relating to collection under applicable insurance such policies or from any other Person alleged to be responsible thereforcollateral sources, and (ii) the value deductible associated therewith to the extent actually paid. The Indemnified Parties shall use their commercially reasonable efforts to pursue such insurance policies or collateral sources (which efforts shall not require the initiation of litigation) but such pursuit shall not be a precondition to indemnification or be grounds for the delay of any Tax Benefit actually realized indemnification payment, and in cash the event the Indemnified Parties receive any recovery in excess of their unreimbursed Damages, the amount of such recovery shall be applied first, to refund any payments made by the Indemnified Party (Indemnifying Parties in respect of indemnification claims pursuant to this Article IX which would not have been so paid had 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 recovery been obtained 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, and second, any excess to the Indemnified Parties. If a Buyer Indemnified Party actually realizes value fails to pursue recoveries under any “incurrence” based insurance policies or other collateral sources, then the Parent shall have the right of subrogation to pursue such insurance policies or other collateral sources and may take any reasonable actions necessary to pursue such rights of subrogation in cash its name or the name of the party from whom subrogation is obtained. Buyer shall reasonably cooperate, and cause its Representatives (including the Acquired Companies) to reasonably cooperate, with respect the Parent to a Tax Benefit made allowable by such incurrence or payment of pursue 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, 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 requestsubrogation claim.

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 actually recovered or recoverable by the Indemnified Party or its Affiliates under applicable insurance policies or from any other Person alleged to be responsible therefor, therefor and (ii) the value of any Tax Benefit 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)) or its Affiliates arising from the incurrence or payment of any such Damages 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) the Tax year such Damages were incurred 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 succeeding 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 ending on in which such Damages are incurred or prior to the date of payment of such Damages. If, in any of the first five following three 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 allowableyears. If the Indemnified Party (i) receives any amounts under applicable insurance policies, 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. [**] = Portions of Nothing in this exhibit have been omitted pursuant Section 11.06 shall require Buyer Indemnified Party to a confidential treatment requestpay over to Seller any proceeds received under the Transactional Insurance Policy. 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.#88639600v31

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 10 (a) shall be net of any Collateral Source Payments and (ib) amounts recovered or recoverable shall be net of an amount equal to any Tax Benefits realized by the Indemnified Party in respect of such Damages; provided, however, that if any indemnification payment by an Indemnifying Party under applicable insurance policies or from any other Person alleged to be responsible therefor, and (ii) this ARTICLE 10 is reduced by the value amount of any Tax Benefit actually realized in cash Benefits pursuant to clause (b) of this Section 10.7, and if such Tax Benefits are subsequently disallowed as a result of a claim by a Taxing Authority against the Indemnified Party (such value to be calculated in accordance with Party, then 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 Indemnifying Party shall pay to the Indemnifying Indemnified Party an amount equal to the value so realized within 90 days Tax Benefits that are lost as a result of such claim (but not more than the filing amount of the applicable Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowablesuch reduction). If the Indemnified Party receives any amounts amount to be deducted under applicable insurance policies, or this Section 10.7 from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment required under this ARTICLE 10 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this ARTICLE 10, the Indemnified Party shall repay to the Indemnifying Party, then promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Section 10.7 had such determination been made at the time of such payment. The Indemnified Party shall seek recovery of any Collateral Source Payments before or within a reasonable amount of time after making any claim for indemnification by the Indemnifying Party. Any Indemnifying Party may, in its sole discretion, require any Indemnified Party to grant an assignment of the right of the Indemnified Party to any Collateral Source Payments, including the right to assert claims for payment of such Collateral Source Payments; provided, that such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by only be required to make 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 requestan assignment if doing so is commercially reasonable.

Calculation of Damages. (a) The amount of any Damages payable Losses for which indemnification is provided under Section 9.02 this Article IX shall be calculated net of any amounts under insurance policies, indemnity, reimbursement arrangement, contract or other recovery actually recovered by the Indemnifying Indemnified Party or its Affiliates with respect to the same Losses giving rise to such right of indemnification (each, an “Alternative Recovery”) (which recoveries shall be net of any (i) amounts recovered retention amount or recoverable deductibles paid by the Indemnified Party under applicable insurance policies 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, 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 to obtain such Indemnifying Party insurance coverage, and in connection with providing such indemnification payment up to the amount received by the Indemnified Partyeach case, net of any reasonable and documented out-of-pocket costs and expenses incurred by (including reasonable attorneys’ fees and expenses)); provided that such Indemnified Party in collecting pursuing such amountrecovery shall not delay such Indemnified Party from validly making, or seeking recovery and obtaining payment for any claim for indemnification under this Article IX. [**] = Portions The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all such Alternative Recoveries with respect to any Loss to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. All Losses shall be determined without duplication of recovery under other provisions of this exhibit have been omitted Agreement or any of the other Transaction Documents, including to the extent the amount of such Loss or alleged Loss is included in the calculation of the Net Adjustment Amount (or the calculation of the underlying amounts, including Indebtedness and Net Working Capital) as finally determined 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 requestSection 2.4.

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 (iii) net of any amounts recovered or recoverable by the Indemnified Party under insurance policies with respect to such Damages (net of any deductibles), provided that the amount of Damages shall be increased by the amount of any Taxes actually paid by any Indemnified Party as a result of such amounts recovered under insurance policies. 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 Indemnified Party expressly agrees to promptly notify the applicable insurance policies carrier of any such claim or from any other Person alleged loss and tender defense thereof to be responsible thereforsuch carrier, and (ii) shall also promptly notify any potential third party indemnitor or contributor which may be liable for any portion of such losses or claims. The Indemnified Party agrees to pursue such claims diligently and to reasonably cooperate with each applicable insurance carrier and third party indemnitor or contributor. The Indemnitor shall pay the value of Indemnified Party’s expenses pursuant to this Section 8.7 as and when incurred. The Indemnified Party shall use its commercially reasonable efforts to seek recoveries under insurance policies and shall reimburse the Indemnitor for any Tax Benefit actually realized in cash Damage indemnified by the Indemnitor, which is subsequently recovered 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 under 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, 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 requestinsurance.

Calculation of Damages. (a) The amount of any Damages payable under Section 9.02 by the Indemnifying Party shall be net of any (i) any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies 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 value Indemnified Party’s share of any Tax Benefit actually realized 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 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 paymentAcquired Companies as a consequence of, or in connection with, 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 circumstances giving rise 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 allowableDamages 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, 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.94

Calculation of Damages. (a) The Notwithstanding any other provision of this Agreement, in no event shall Seller or Purchaser be liable for diminution of value or punitive, consequential, indirect, incidental or special damages of any kind or nature, regardless of the form of action through which such damages are sought unless such damages are actually recovered or recovered by a third party in a Third Party Claim. Notwithstanding the foregoing, the amount of any Damages payable for which indemnification is provided under Section 9.02 by the Indemnifying Party this Article VI shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under any Contracts or applicable insurance policies or from any other Person alleged with respect 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 To the first five Tax years ending after the date of such payment, the extent an Indemnified Party actually realizes value in cash with respect to recognizes any net Tax Benefits (as defined immediately below) as a Tax Benefit made allowable by such incurrence or payment result of any such DamagesDamages for which indemnity is paid under this Article VI, the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payments received from the Indemnifying Party an amount equal with respect to such Damages) to the value so realized Indemnifying Party within 90 60 days of the filing of the applicable such Tax Return or any adjustment for the Tax year in which the Tax Benefit is made allowable. If Benefits being recognized by the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged (to be responsible the extent such Tax Benefits are realized prior to the payment of the indemnity for any the Damages, subsequent to an indemnification payment the amount of the indemnity for the Damages shall be reduced by the Indemnifying Partyamount of Tax Benefits actually realized). For this purpose, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection be deemed to recognize a tax benefit (“Tax Benefit”) with providing such indemnification payment up respect to a taxable year only if, and to the amount received by extent that, the Indemnified Party’s liability for cash Taxes for such taxable year, net calculated by excluding any Tax items attributed to the Damages, exceeds the Indemnified Party’s actual liability for cash Taxes for such taxable year, calculated by taking into account any Tax items attributed to (i) the Damages or (ii) the receipt 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 requestindemnification payments.

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 of any calculated after reduction for (i) amounts recovered or recoverable by any Tax benefit inuring to the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor, on account of such Damage and (ii) the value of any Tax Benefit amounts actually realized in cash recovered by the Indemnified Party (such value Person under any insurance policies and any amounts recoverable pursuant to be calculated in accordance with the method described in Section 7.06(c)) arising from the incurrence any indemnification right, claim, recovery, settlement, reimbursement arrangement, Contract or payment of any such Damages by or against a third party (collectively, “Alternative Arrangements”), in (x) the Tax year such Damages were incurred and (y) any succeeding Tax year ending on or prior each case relating to the date of payment of such Damages. If, in any net of the first five reasonable costs and expenses incurred in seeking such collection. In the event that an insurance, Tax years ending after the date of such payment, the benefit or other recovery is made by any Indemnified Party actually realizes value in cash Persons with respect to a Tax Benefit made allowable by such incurrence or payment of any Damage for which any such DamagesPerson has been indemnified hereunder, the Indemnified Party shall pay the Indemnifying Party an amount then a refund equal to the value so realized within 90 days aggregate amount of the filing insurance, Tax benefit or recovery shall be made promptly to the Indemnifying Person. Notwithstanding anything to the contrary in this 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 applicable Indebtedness Amount, Net Working Capital Amount, Transaction Expenses or Closing 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, 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 requestAmount.