Determination of Damages. For purposes of this Agreement, any determination of Damages shall (a) be reduced (i) by any Tax benefits realized by the indemnified party (assuming a combined federal and state income Tax rate of 40 percent), and (ii) by the amount of any insurance proceeds actually recovered by the indemnified party with respect to such Damages (after reasonable good faith efforts to recover thereon, including filing and diligent pursuit of a claim with the insurer); and (b) exclude all items specified in Section 6.6. The calculation of Damages shall not include damages arising because of a change after Closing in Legal Requirements or accounting policies. To the extent that a claim for indemnification by Parent hereunder relates to a liability incurred by the Company and there is an accrual on the Unaudited Interim Balance Sheet in respect of such liability, then the determination of Damages in respect of such claim shall be net of such accrual.
Determination of Damages. As used herein, "Damages" means any and all losses, claims, demands, liabilities, obligations, actions, suits, orders, statutory or regulatory compliance requirements, or proceedings asserted by any Person, and all damages, costs, expenses, assessments, judgments, recoveries and deficiencies, including interest, penalties, investigatory expenses, consultants' fees, and reasonable attorneys' fees and costs, of every kind and description, contingent or otherwise. For purposes of the above, the amount of Damages in respect of any breach of a representation or warranty shall be determined without regard to any limitation or qualification as to materiality, Licensee(s) Material Adverse Effect, Clearwire Material Adverse Effect, knowledge or similar language set forth in such representation or warranty.
Determination of Damages. As used herein, "DAMAGES" means any and all losses, claims, demands, liabilities, obligations, actions, suits, orders, statutory or regulatory compliance requirements, or proceedings asserted by any Person, and all damages, costs, expenses, assessments, judgments, recoveries and deficiencies, including interest, penalties, investigatory expenses, consultants' fees, and reasonable attorneys' fees and costs, of every kind and description, contingent or otherwise. For purposes of the above, the amount of Damages in respect of any breach of a representation or warranty shall be determined without regard to any limitation or qualification as to materiality set forth in such representation or warranty. As used in this Agreement, "PERSON," whether or not such term is capitalized, means any individual, partnership, firm, corporation, limited liability licensee(s), association, trust, unincorporated organization, or other entity.
Determination of Damages. With respect to each indemnification obligation contained in this Article VI, all Losses shall be net of any third-party insurance and indemnity proceeds that are actually obtained by the Indemnified Party in connection with the facts giving rise to the right of indemnification, less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds less all reasonable and documented out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented attorneys’ fees and any deductible) and less any Taxes incurred in respect of the amounts so recovered from any insurer or third party shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made). Each Party shall take all reasonable steps to mitigate its Losses upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article VI, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Losses and with respect to the claim giving rise to such Losses.
Determination of Damages. For purposes of determining the amount of Damages resulting from (i) any inaccuracy in or breach of any representation or warranty, or (ii) any breach of any covenant, such Damages shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation, warranty or covenant.
Determination of Damages. Payments due under this Article 9 shall be limited to the amount of any Damages (including any additional Taxes imposed on or incurred by the Indemnified Party in connection with the related indemnification payments) that remain after deducting therefrom the amount of any insurance proceeds, and any indemnity, contribution, or other similar payment that is received by the Indemnified Party in respect of any such claim (net of any deductible or any other expense incurred by the Indemnified Party in obtaining such recovery).
Determination of Damages. The court seized of the matter shall calculate the amount of the damages, having regard to the adverse financial effects, including loss of earnings, suffered by the prejudiced party, the profit made by the counterfeiter and the moral damages caused to the title owner as a result of the violation.
Determination of Damages. The Parties shall take into account the time cost of money (using the Applicable Rate as the discount rate) in determining Damages for purposes of this Section 8. All indemnification payments under this Section 8 shall be deemed adjustments to the Purchase Price.
Determination of Damages. In the event XXXXXX XXXXX elects to terminate this Agreement in any country or countries pursuant to Sections 9.2.2, 9.2.3 (as a result of a material breach of the Patent and Know-How License Agreement by NOVACEA) or 9.2.4, in addition to its right to terminate this Agreement, XXXXXX XXXXX may seek damages (subject to Section 13.3) caused by the material breach giving rise to such Termination; provided, that recovery of any such damages shall be offset by the fair market value to XXXXXX XXXXX of the rights and licenses that are assigned, licensed, or reverted to XXXXXX XXXXX as a result of its exercise of its right of termination with respect to such country(ies). If the Parties dispute whether the fair market value to XXXXXX XXXXX exceeds XXXXXX XXXXX’x damages, then any such dispute shall be settled pursuant to Section 13.2. Notwithstanding anything to the contrary set forth in this Section 9.4.2, the limitation set forth in this Section 9.4.2 shall be of no effect whatsoever in the event of fraud by NOVACEA.
Determination of Damages. In determining the amount of any Damages for which an Indemnified Party is entitled to assert a claim for indemnification hereunder, the amount of any such Damages shall be determined after deducting therefrom the amount of any insurance proceeds (after giving effect to any applicable deductible or retention) and other third-party recoveries actually received by the Indemnified Party or an Affiliate in respect of such Damages (which proceeds and recoveries the Indemnifying Party agrees to use diligent efforts to obtain) and the amount of any Tax Benefit related thereto; provided that the Buyer’s right to bring a claim hereunder to recover damages shall not be delayed as a result of pending resolutions of any insurance claims. As used herein, “Tax Benefit” shall mean any reduction of Taxes payable by or on behalf of the Indemnifying Party or any of its Affiliates as a result of any Damages. If an indemnification payment is received by an Indemnified Party, and such Indemnified Party or any Affiliate later receives insurance proceeds, other third-party recoveries or Tax Benefits in respect of the related Damages, the Indemnified Party shall immediately pay to the Indemnifying Party a sum equal to the lesser of (i) the actual amount of such insurance proceeds, other third-party recoveries and Tax Benefits or (ii) the actual amount of the indemnification payment previously paid with respect to such Damages. All parties shall use commercially reasonably efforts to mitigate the amount of Damages for which they may be entitled to indemnification hereunder.
