Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. (a) The amount of any Loss shall be calculated net of any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect thereto. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the parties indemnification obligations under this Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for purposes of determining the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To the extent that any Investor Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of (i) any tax benefit, net of any tax detriment, that the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end of the taxable year in which such indemnity payment is made) and (ii) any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment received by the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountants. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder pursuant to this Article VIII or take any action against the Company or any such person with respect thereto.

Calculation of Losses. (a) The Notwithstanding anything to the contrary in this Agreement, the amount of any Loss Losses suffered or incurred by any Indemnified Person shall be calculated after giving effect to (i) any insurance proceeds actually received by the Indemnified Person with respect to such Losses from third party insurers, net of (A) all out-of-pocket costs and expenses relating to collection of such amounts from such insurers, (B) any deductible associated therewith, and (C) any increase in premiums resulting therefrom; and (ii) the amount of any indemnification, contribution, and other similar payment proceeds actually recovered by such Indemnified Person in respect of such Loss, net of any costs associated with obtaining such proceeds. The Indemnified Person agrees to use commercially reasonable efforts to seek recovery of insurance proceeds (net of direct collection expenses and premium increases) or any indemnityproceeds, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect theretoto Purchaser Indemnified Parties, with respect to any Losses. (b) Notwithstanding anything in The Indemnified Persons will not be entitled to recover any Losses relating to (i) any matter arising under a provision of this Agreement to the contraryextent that the Indemnified Persons have already recovered Losses with respect to such matter pursuant to another provision of this Agreement, for purposes or (ii) any Losses as and to the extent reflected in the determination of the parties indemnification obligations under this Article VIII, all Final Consideration or otherwise as and to the extent taken into account in the calculation of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” Final Consideration or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for purposes of determining the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurredadjustment thereto. (c) To Notwithstanding anything to the extent that contrary elsewhere in this Agreement, no Party shall, in any Investor Indemnified Party indirectly suffers or sustains event, be liable to any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (other Person for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of any (i) punitive damages or (ii) incidental, indirect or special damages of such other Person, or any tax benefitdamages based on any kind of multiple (including “multiple of lost profits” or “multiple of cash flow” or any similar valuation methodology), net or claims for lost profits or diminution of value, in each case of any tax detrimentkind or nature, that regardless of the Company actually realizes on account form of such Loss or Losses (but only action through which any of the foregoing are sought, other than to the extent such net benefit is realized by the Company on Losses or before the end of the taxable year in which such indemnity payment is made) and (ii) any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment received by the Company shall damages are required to be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on paid to a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountants. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder third party pursuant to this Article VIII or take any action against the Company or any such person with respect theretoa Third Party Claim hereunder.

Calculation of Losses. (a) The amount Following the Closing, if any claim is made against the Stockholder by a Buyer Indemnified Party pursuant Article VIII in respect of any Loss (a “Loss Payment”), none of the Stockholders nor any of their respective Affiliates, successors or assigns shall be calculated net have any rights against Buyer, the Company or their respective Affiliates, officers, directors, managers or members by reason of contribution or subrogation in respect of any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect theretoLoss Payment. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the parties indemnification obligations under this Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for purposes the purpose of determining both whether or not a breach has occurred and calculating the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To the extent that any Investor The Losses incurred or suffered by an Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of reduced by (i) the amount of any tax benefit, related insurance proceeds actually received by such Indemnified Party or its Affiliates in connection with the corresponding claim (net of any tax detrimentapplicable deductible or retention amounts, that based on the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end parties’ reasonable estimate of the taxable year increases in which insurance premiums directly resulting from such indemnity payment is made) claim and costs of recovery), and (ii) any other compensatory payments actually received by such Indemnified Party or its Affiliates from any other Persons by way of indemnification, guarantee or similar mechanism with respect to the Losses for which indemnification is claimed. To the extent available, each Indemnified Party shall use its commercially reasonable efforts to obtain recovery from any such available insurance proceeds (net policy or indemnification, guarantee or similar mechanism, provided, however, such obligation shall not include any requirement to commence any action, suit proceeding, or alternative dispute resolution process to obtain such recovery, and shall not prevent or delay receipt of direct collection expenses and premium increasesindemnification payments hereunder to the extent an Indemnified Party is otherwise entitled thereto. If any amount referenced in this Section 8.7(c) or any indemnityis actually received after the related indemnification payment has been made, contribution or other similar payment then the applicable Indemnified Party shall remit such amounts to the applicable Indemnifying Party. For the avoidance of doubt, no amounts received by the Company Buyer Indemnified Parties from the R&W Insurance Policy shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountants. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have necessitate any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect refund of any amounts payable by such Selling Shareholder pursuant amount collected from the Indemnification Escrow Amount or otherwise from the Stockholder Indemnifying Parties to this Article VIII or take any action against satisfy the Company or any such person with respect theretoretention under the R&W Insurance Policy.

Calculation of Losses. (ai) The For the purposes of determining whether there has been a breach of any representation or warranty for purposes of Section 11.3(a) or 11.3(b), or the amount of any Loss shall be calculated net related to a breach of any insurance proceeds (net of direct collection expenses and premium increases) representation or any indemnitywarranty, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect thereto. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the parties indemnification obligations under this Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as shall be considered without regard to any “material,” “materialityCompany Material Adverse Effect,” “material respects,” “Parent Material Adverse Effect” or words similar qualifications set forth therein. (ii) Any indemnification payments to the Parent Indemnified Parties or the Stockholders Indemnified Parties pursuant to Section 11.3 shall be limited to the amount of similar import any Losses that remain after deducting therefrom, without duplication (x) any insurance payment actually paid to and received by Parent, the Surviving Corporation or effect any of their respective Affiliates or exception related the Company Stockholders, as the case may be, from any third party with respect thereto, net of (A) any deductibles or any amounts payable with respect thereto and (B) the present value of any increases in insurance premiums payable by such Parent Indemnified Party or Stockholder Indemnified Party, as determined in good faith by such Parent Indemnified Party or Stockholder Indemnified Party, (y) any adjustments to the Total Common Stock Merger Consideration pursuant to Section 2.9 with respect to the subject matter in dispute and (z) any Tax Benefit actually realized by the Indemnified Party as a result of the incurrence of the indemnified Loss for which such indemnification payment is made; provided, however, that (1) nothing set forth in this Section 11.3(d) shall be deemed to have been made without require or obligate any such qualification Parent Indemnified Party or exception for purposes of determining the Stockholder Indemnified Party to apply more than commercially reasonable efforts to seek recovery under any insurance policy with respect to any amount of Losses resulting frompaid, sustained, suffered, incurred or accrued as a result of, arising out of of, or relating to in connection with any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To the extent that any Investor Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of (i) any tax benefit, net of any tax detriment, that the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end of the taxable year in which such indemnity payment is made) matter covered under Section 11.3 and (ii2) any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment received by the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of foregoing clause (z), the Company’s independent accountants. (d) The Company Parent and the Selling Shareholders hereby agree that no Selling Shareholder Surviving Corporation shall have retain all discretion in determining whether to pursue any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder pursuant to this Article VIII or take any action against the Company or any such person with respect theretoTax Benefits.

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under this Article X shall be calculated net of any (i) net Tax benefit realized in the form of an actual cash reduction in Taxes of the indemnified party (or credits against Taxes) as a result of such Loss in the taxable year of the Loss or the year thereafter (determining such net Tax benefit after taking into account the Tax effect of the receipt of the indemnity payment hereunder with respect to such Loss) and (ii) insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Loss (net of direct collection expenses any costs incurred to recover such amounts and premium increases) any increase in premiums resulting directly from such claim), but in no event including amounts recovered under the R&W Policy. The Parties acknowledge and agree that no right of subrogation shall accrue or inure to the benefit of any indemnity, contribution or other similar payment actually received by such Investor Collateral Source hereunder and Purchaser shall use its best efforts to cause the insurers of any Purchaser Indemnified Party from any third party with respect theretoto waive subrogation against the Sellers other than in the event of a claim for fraud. (b) Notwithstanding anything to the contrary elsewhere in this Agreement Agreement, no Party shall, in any event, be liable to the contrary, for purposes of the parties indemnification obligations any other Person under this Article VIII, all of the representations and warranties set forth X for punitive damages (other than with respect to punitive damages awarded in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for purposes of determining the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurredconnection with Third Party Claims). (c) To Anything herein to the extent that contrary notwithstanding, no breach of any Investor Indemnified Party indirectly suffers representation, warranty, covenant or sustains agreement contained herein shall give rise to any Loss right on the part of Purchaser, after the consummation of the transactions contemplated hereby, to rescind this Agreement or Losses as a result any of such Investor Indemnified Party’s ownership interest the transactions contemplated hereby other than in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner event of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of (i) any tax benefit, net of any tax detriment, that the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end of the taxable year in which such indemnity payment is made) and (ii) any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment received by the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountantsfraud. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder pursuant to this Article VIII or take any action against the Company or any such person with respect thereto.

Calculation of Losses. (a) The amount of any Loss shall be calculated net of any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect thereto. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the parties indemnification obligations under this Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for For purposes of determining the extent of and limitations on indemnification under this Section 8.4, the amount of any Losses resulting from, arising out that may be subject to indemnification hereunder will be determined net of or relating to (i) the sum of any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To amounts actually received by the extent that any Investor Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company under insurance policies with the result that an Investor Indemnified Party incurs or suffers respect to such Loss or Losses indirectly as a beneficial owner of shares of (it being understood that neither the Company), such Investor Indemnified Party’s percentage ownership of Buyer nor the Company shall be taken into account under any obligation to file any insurance claim relating to such Losses; provided, however, that if the Company has occurrence based insurance coverage in determining place with respect to pre-Closing periods the Loss premium for which was paid by Seller or Losses the Company, and the Company or Buyer does not wish to file any such insurance claim with respect to such policy, Buyer will promptly notify Seller of such Investor Indemnified Partydetermination and shall, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of (i) any tax benefit, net of any tax detriment, that the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by consistent with the terms of the underlying policies, assign to Seller any rights of the Company to pursue any claim under such policy relating to such Losses; provided, further that Seller shall have no right to access the insurance coverage of the Company or the Buyer with respect to any insurance coverage (occurrence based or claims-made) that is in effect on or before after the end of the taxable year in which such indemnity payment is made) Closing), and (ii) the amount of any insurance proceeds Tax benefit (net after first taking into account all other items of direct collection expenses and premium increasesincome, gain, loss, deduction or credit of such Indemnified Party or group) actually realized by the Indemnified Party (or any indemnityconsolidated, contribution combined or other similar unitary group of which the Indemnified Party is also a member) attributable to the accrual or payment received by of such Loss to the Company extent that such Loss is deductible; such Tax benefit shall be taken into account in determining based on the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability post-Closing Tax position of the Company and shall be certified by a senior manager or partner of an accounting firm representing the Company. In the event that any Tax benefit that has actually reduced Losses under this Section 8.4(b) is disallowed, the Seller shall promptly (i) repay to the Buyer an amount equal to the sum of (ii) the Tax benefit disallowed and (iii) the amount of interest actually paid by the Buyer to a Taxing Authority on account of the disallowance of such Losses set forth on a tax return filed by Tax benefit. Buyer will not be entitled to any indemnification for any Loss to the Company on extent that the Buyer has recovered such Loss (or before has otherwise received an equivalent economic benefit) through the end of the taxable year Net Working Capital purchase price adjustment provided for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountantsSection 1.4 above. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder pursuant to this Article VIII or take any action against the Company or any such person with respect thereto.

Calculation of Losses. (a) The amount Following the Closing, if any claim is made against the Stockholder by a Buyer Indemnified Party pursuant Article VIII in respect of any Loss (a “Loss Payment”), none of the Stockholders nor any of their respective Affiliates, successors or assigns shall be calculated net have any rights against Buyer, the Company or their respective Affiliates, officers, directors, managers or members by reason of contribution or subrogation in respect of any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment actually received by such Investor Indemnified Party from any third party with respect theretoLoss Payment. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the parties indemnification obligations under this Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for purposes the purpose of determining both whether or not a breach has occurred and calculating the amount of Losses (and not for determining whether any breach of any representation or warranty has occurred) resulting from, arising out of or relating to any such breach of representation or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To the extent that any Investor The Losses incurred or suffered by an Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of reduced by (i) the amount of any tax benefit, related insurance proceeds actually received by such Indemnified Party or its Affiliates in connection with the corresponding claim (net of any tax detrimentapplicable deductible or retention amounts, that based on the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end parties’ reasonable estimate of the taxable year increases in which insurance premiums directly resulting from such indemnity payment is made) claim and costs of recovery), and (ii) any other compensatory payments actually received by such Indemnified Party or its Affiliates from any other Persons by way of indemnification, guarantee or similar mechanism with respect to the Losses for which indemnification is claimed. To the extent available, each Indemnified Party shall use its commercially reasonable efforts to obtain recovery from any such available insurance proceeds (net policy or indemnification, guarantee or similar mechanism, provided, however, such obligation shall not include any requirement to commence any action, suit or proceeding to obtain such recovery, and shall not prevent or delay receipt of direct collection expenses and premium increasesindemnification payments hereunder to the extent an Indemnified Party is otherwise entitled thereto. If any amount referenced in this Section 8.7(c) or any indemnityis actually received after the related indemnification payment has been made, contribution or other similar payment then the applicable Indemnified Party shall remit such amounts to the applicable Indemnifying Party. For the avoidance of doubt, no amounts received by the Company Buyer Indemnified Parties from the R&W Insurance Policy shall be taken into account in determining necessitate any refund of any amount collected from the Loss Indemnification Holdback Amount or Losses otherwise from the Stockholder Indemnifying Parties to satisfy the retention under the R&W Insurance Policy. For the avoidance of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed doubt, no amounts received by the Company on or before Buyer Indemnified Parties from the end of the taxable year for which an indemnity payment is made R&W Insurance Policy shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountants. (d) The Company and the Selling Shareholders hereby agree that no Selling Shareholder shall have necessitate any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect refund of any amounts payable by such Selling Shareholder pursuant amount collected from the Indemnification Holdback Amount or otherwise from the Stockholder Indemnifying Parties to this Article VIII or take any action against satisfy the Company or any such person with respect theretoretention under the R&W Insurance Policy.

Calculation of Losses. (ai) The For the purpose of this Article X, when determining the amount of Losses paid, sustained, suffered, incurred or accrued as a result of, arising out of, or in connection with, as applicable (i) any inaccuracy or misrepresentation in, or any breach of, any representation or warranty of an Indemnifying Party set forth in this Agreement or in any certificate delivered pursuant hereto, whether as of the date hereof or as of the Closing Date, or (ii) any breach or non-fulfillment of any covenant or other agreement of an Indemnifying Party set forth in this Agreement, any related agreement or any certificates or other instruments delivered pursuant to this Agreement, but not for determining whether any such inaccuracy, misrepresentation, breach or non-fulfillment has occurred, any representation, warranty, agreement or covenant given or made by an Indemnifying Party that is qualified in scope as to “materiality” or a “Company Material Adverse Effect” shall be deemed to be made or given without such materiality qualification or qualification as to a “Company Material Adverse Effect.” (ii) Any indemnification payments to the Indemnified Parties pursuant to Section 10.2 shall be limited to the amount of any Loss shall be calculated net of Losses that remain after deducting therefrom, without duplication (i) any insurance proceeds (net of direct collection expenses and premium increases) or any insurance, indemnity, contribution or other similar payment payments actually paid to and received by such Investor Indemnified Party Parent, the Surviving Corporation or any of their respective Affiliates from any third party with respect thereto. , net of (bA) Notwithstanding anything any deductibles or any amounts payable with respect thereto and (B) the present value of any increases in this Agreement insurance premiums payable by such Indemnified Party, as determined in good faith by such Indemnified Party, (ii) any adjustments to the contrary, for purposes Merger Consideration pursuant to Section 2.6 with respect to the subject matter in dispute and (iii) any Tax Benefit actually realized by the Indemnified Party as a result of the parties indemnification obligations under this Article VIII, all incurrence of the representations and warranties indemnified Loss for which such indemnification payment is made; provided, however, that (x) nothing set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto Section 10.7(c) shall be deemed to have been made without require or obligate any such qualification or exception for purposes of determining the Indemnified Party to apply more than commercially reasonable efforts to seek recovery under any insurance policy with respect to any amount of Losses resulting frompaid, sustained, suffered, incurred or accrued as a result of, arising out of of, or relating to in connection with any such breach of representation matter covered under Section 10.2 or warranty, but not for purposes of determining whether a breach of such representation or warranty has occurred. (c) To the extent that any Investor Indemnified Party indirectly suffers or sustains any Loss or Losses as a result of such Investor Indemnified Party’s ownership interest in the Company (for clarity, meaning that the Loss or Losses are suffered or sustained by the Company with the result that an Investor Indemnified Party incurs or suffers such Loss or Losses indirectly as a beneficial owner of shares of the Company), such Investor Indemnified Party’s percentage ownership of the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party, and for greater certainty, such Investor Indemnified Party’s indirect interest (based on its ownership percentage of the Company) of (i) any tax benefit, net of any tax detriment, that the Company actually realizes on account of such Loss or Losses (but only to the extent such net benefit is realized by the Company on or before the end of the taxable year in which such indemnity payment is made) Section 10.3 and (iiy) any insurance proceeds (net of direct collection expenses and premium increases) or any indemnity, contribution or other similar payment received by the Company shall be taken into account in determining the Loss or Losses of such Investor Indemnified Party. Any reduction in the tax liability of the Company on account of such Losses set forth on a tax return filed by the Company on or before the end of the taxable year for which an indemnity payment is made shall be a tax benefit realized in such year, provided (i) such claim is made after consultation with the Company’s independent accountants and (ii) no reserve with respect to such tax benefit is required under Canadian generally accepted accounting principles in the opinion of the Company’s independent accountants. foregoing clause (d) The Company iii), Parent and the Selling Shareholders hereby agree that no Selling Shareholder Surviving Corporation shall have retain all discretion in determining whether to pursue any rights against the Company, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any amounts payable by such Selling Shareholder pursuant to this Article VIII or take any action against the Company or any such person with respect theretoTax Benefits.