Common use of Calculation of Indemnity Payments Clause in Contracts

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall be (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The Indemnified Party agrees to use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, IX by the Indemnifying Party in respect of a Third Party Claim or Direct Claim shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party (other Person alleged to be responsible therefor in respect of the Losses to which such Third Party Claim or Direct Claim relates. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses in respect of a Third Party Claim or Direct Claim, subsequent to an indemnification payment by the Indemnifying Party in respect of a Third Party Claim or Direct Claim, then such Indemnified Party shall promptly pay to the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to the amount received by the Indemnified Party, net of any costs expenses incurred by such Indemnified Party in recovering collecting such amount, including applicable deductibles in the case . (b) The amount of insurance proceeds) and (ii) Losses incurred by an Indemnified Party shall be reduced to take account of any net Tax benefit with respect realized or reasonably expected to the Transferred Entities (including a benefit arising from a correlative adjustment) actually be realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party arising from the incurrence or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentsuch indemnified amount. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for For purposes of this Article IX, both the existence determining whether a breach of any or inaccuracy in or breach of any representation or warranty contained in this Agreement, Agreement has occurred and in calculating the amount of any Losses resulting from such inaccuracy or breachsubject to indemnification hereunder, shall be determined without giving effect in each case, all qualifications as to any “material,” “materiality,” , including “Material Adverse Effect,” “material” or any similar qualifications contained in term, limitation or otherwise applicable to such representation or warranty or any definition contained thereinqualification shall be disregarded.

Calculation of Indemnity Payments. (a) The amount of any Loss Losses for which the Indemnifying Party is otherwise entitled to indemnification is provided under pursuant to this Article IX, 9 shall be reduced by (i) net of any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering increased premiums resulting from such amountLosses), including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable any Indemnified Party or their Affiliates attributable to the incurrence(taking into account any Tax detriment, accrual or payment and measured on a with and without basis) as a result of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year in which such Loss is paid or incurred or any prior year and (calculated on a “with iii) any and without” basis and taking into account for this purpose any Taxes incurred all amounts actually received by the Indemnified Party from any other Person in the form of an indemnity, contribution or their Affiliates which are attributable other similar payment; provided that no Indemnified Party shall be under any obligation to seek recovery under any indemnity payment related thereto). (b) of its insurance policies or from any other third party prior to seeking recovery from the Indemnifying Party under this Article 9. If an Indemnified Party recovers receives any amounts under applicable insurance policies, any such Tax benefit or from any other Person subsequent to an amount from a third party in respect of Losses that are indemnification payment by the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)Party, then the such Indemnified Party shall promptly remit to reimburse the Indemnifying Party the excess (if any) of (I) (A) the amount paid for any payment made or expense incurred by the such Indemnifying Party in respect of connection with providing such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) indemnification up to the amount received by the Indemnified Party in respect thereof (after deducting the full amount Party, net of the any expenses incurred by the such Indemnified Party in procuring collecting such recoveryamount. (b) over (II) the full amount of the indemnifiable Losses. If Buyer or Under no circumstances shall any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant Indemnified Party be entitled to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded indemnification pursuant to this Section 9.06(b)(ii)) made prior Article 9, for punitive or exemplary damages except to the applicable RWI Recovery Paymentextent payable by an Indemnified Party to a third party. (c) Each For the purposes of determining the amount of Losses to which such Indemnified Party shall, and shall cause its respective Affiliates to, use reasonable best efforts may be entitled to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses recover under this Article IX 9 and for purposes of determining whether or not an Indemnified Party is entitled to indemnification pursuant to this Article 9, each of the representations and warranties that contains any “Company Material Adverse Effect,” “Buyer Material Adverse Effect,” “material” or similar materiality qualifications shall be determined without duplication read as though such qualifications were not contained therein (other than with respect to (i) clause (x) of recovery for Section 4.11 and (ii) the same Losses under use of the term “Material Contract” and any other provisions of this Agreement or any Transaction Documentdefined term that includes the word “Material” in the title). (d) Except in Each of Seller and Buyer acknowledge and agree that the case of other is entitled to rely upon the representations and warranties contained made by such Party in Section 3.07(b) this Agreement and with respect the other Transaction Agreements and that an Indemnified Party’s right to defined terms using indemnification or other remedies based upon the word “material,” for purposes representations, warranties, covenants and agreements of this Article IX, both the existence Indemnifying Party shall not be affected by any investigation or knowledge of the Indemnified Party or any waiver by the Indemnified Party of any inaccuracy in or breach condition based on the accuracy of any representation or warranty contained in this Agreement, or compliance with any covenant or agreement. Such representations and warranties and covenants and agreements shall not be affected or deemed waived by reason of the amount of fact that the Indemnified Party knew or should have known that any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty might be inaccurate or that the Indemnifying Party failed to comply with any definition contained therein.agreement or covenant. Any investigation by an Indemnified Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, XII shall be net of any amounts recovered by the Indemnified Party under insurance policies with respect to such Loss and shall also take into account any increase in applicable insurance premiums with respect to such insurance proceeds. The Indemnified Party shall not be entitled to be indemnified more than once for the same Loss. (b) The amount of any Loss for which indemnification is provided under this Article XII shall be (i) net increased to take account of any amounts actually recovered net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (including under insurance policies other than, grossed up for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceedsincrease) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party arising from the incurrence or their Affiliates which are attributable to payment of any indemnity payment related thereto). such Loss (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (whichincluding, for the avoidance of doubt, includes setoffs against any such Tax benefit arising in connection with the Earnout PaymentRestructuring). In calculating the amount of any such Tax cost or Tax benefit, then the Indemnified Party shall promptly remit be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion receipt of any Section 9.02(f) Indemnity Payment would not have been required in accordance with indemnity payment hereunder or the second sentence incurrence or payment of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentindemnified Loss. (c) Each An Indemnifying Party shallis authorized, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate in connection with payment of any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably for which indemnification may be expected to give rise to any such Loss to the extent required sought by applicable Law. All indemnifiable Losses an Indemnified Party under this Article IX shall be determined XII, to set off and apply any and all payments due to such Indemnifying Party under Article III or this Article XII against any of and all of the obligations of the Indemnifying Party to such Indemnified Party under this Article XII. The rights of the Indemnifying Party under this Section 12.06(c) are in addition to (without duplication of) other rights and remedies (including other rights of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentset-off) which such Indemnifying Party may have. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and Following any Transfer made by Indigo Parent or any Affiliate thereof with respect to defined terms using any Monsoon Voting Securities, Indigo Parent shall not be prevented or limited in any respect from enforcing the word “material,” for purposes indemnification obligations of Monsoon under this Article IX, both XII for the existence benefit of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinrelevant Transferee.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IXX shall be net of any insurance amounts and amounts recovered from other third parties when and to the extent actually received by the Parent Indemnified Parties with respect to such Loss provided that no Parent Indemnified Party shall have any obligation to seek or pursue any insurance recoveries (other than under those policies covering the Company and its Subsidiaries before the Effective Time) or seek or pursue recoveries from other third parties (and may terminate, delay or abandon its seeking or pursuit of any such insurance or other recovery at any time in its sole discretion). However, in the event that any Parent Indemnified Party does not seek or pursue any insurance under policies covering the Company and its Subsidiaries before the Effective Time or recoveries from other third parties, such Parent Indemnified Party shall promptly notify the Selling Parties’ Representative of such fact in writing and the rights of each Selling Party Indemnifying Party shall be subrogated to any right of action that the Parent Indemnified Party may have under such insurance policies or against any other third parties, with respect to any matter giving rise to a claim for indemnification hereunder. Any indemnity payment under this Article X shall be treated as an adjustment to the Purchase Price for Tax purposes to the extent permitted by Tax Law. The amount of any Loss for which indemnification is provided under this Article X shall be (i) reduced by the amount of the net of any amounts Tax benefit actually recovered realized by the Indemnified Party (including under insurance policies other than, for the avoidance by reason of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced increased to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) cost actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party arising from the receipt or their Affiliates which are attributable to any accrual of indemnity payment related theretopayments hereunder (i.e., grossed-up for such increase). (b) If an Indemnified Party recovers an amount from a third party in respect . For purposes of calculating Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using determining whether the word “material,” Losses exceed the Deductible for purposes of this Article IXSection 10.6(a), both any materiality or Material Adverse Effect qualifications in the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreementrepresentations, warranties, covenants and the amount of any Losses resulting from such inaccuracy or breach, agreements shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinignored.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, IX or Article X shall be (i) net of any amounts actually recovered or recoverable by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amountLoss, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit solely with respect to the Losses relating to a Transferred Entities Subsidiary, reduced (including a benefit arising from a correlative adjustmentbut not below zero) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred Tax Benefits recognized by the Indemnified Party as a result of any Loss in any taxable year in which or their Affiliates prior to the taxable year in which are such Loss was incurred. For this purpose, a “Tax Benefit” attributable to a Loss with respect to any indemnity payment related theretotaxable year shall mean the amount by which the Indemnified Party’s cumulative liability for Taxes for such taxable year, calculated by excluding any deductions attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes for such taxable year, calculated by taking into account any deductions attributable to the Loss (and not previously utilized), to the extent permitted by applicable Tax Law and treating such deductions as the last items claimed for any such taxable year). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (IA) (Ai) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (Bii) the amount received by the Indemnified Party in respect thereof minus (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (IIB) the full amount of the indemnifiable Losses. If Buyer In the event that an Indemnified Party has any rights against a third party with respect to any occurrence, claim or loss that results in a payment by an Indemnifying Party under this Article IX, such Indemnifying Party shall be subrogated to such rights to the extent of such payment. Without limiting the generality of any other Buyer Indemnitee recovers an amount under provision hereof, each Indemnified Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the RWI Policy (eachsubrogation and subordination rights detailed herein, a “RWI Recovery Payment”) after and otherwise cooperate in the prosecution of such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentclaims. (c) Each Party party shall, and shall cause its respective Affiliates subsidiaries to, use take all reasonable best efforts steps to mitigate any Loss indemnifiable hereunder (other than with respect to Taxes) upon and after becoming aware of any event that would could reasonably be expected to give rise to any such Loss to the extent required by applicable LawLoss. All indemnifiable Losses under this Article IX No party shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement entitled to any payment, adjustment or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and indemnification more than once with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinsame matter.

Calculation of Indemnity Payments. (a) The amount of any Loss All Losses for which any Indemnitee would otherwise be entitled to indemnification is provided under this Article IX, shall VIII will be (i) net of any amounts actually recovered reduced by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case amount of insurance proceeds) , indemnification payments and (ii) reduced to take account other third-party recoveries actually received by any Indemnitee in respect of any net Tax benefit with Losses incurred by such Indemnitee. In the event any Indemnitee or any of its Affiliates is entitled to any insurance proceeds in respect of any Losses (or any of the circumstances giving rise thereto) for which such Indemnitee is entitled to indemnification pursuant to this Article VIII, such Indemnitee shall use its commercially reasonable efforts to obtain, receive or realize such proceeds. In the event that any insurance proceeds, indemnification payments or other third-party recoveries not previously taken into account are obtained by a Indemnitee subsequent to receipt by such Indemnitee of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnification payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnitee of all or the relevant portion of such recovery to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by relevant Indemnitor. The Parties acknowledge and agree that the terms of this Agreement shall not preclude the applicability of any otherwise applicable Indemnified Party or their Affiliates attributable common law duty to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto)mitigate Losses. (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all All materiality qualifications (such as “material”, “material adverse effect” or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery PaymentMaterial Adverse Effect”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required contained in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” herein shall be disregarded for all purposes under this Article VIII, including for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and determining the amount of any Losses resulting from and for purposes of determining the accuracy of such inaccuracy representations and warranties or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinwhether a breach has occurred.

Calculation of Indemnity Payments. (a) Each Indemnitee shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, ARTICLE VIII by the Indemnitor shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including Indemnitee under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party other Person alleged to be responsible therefor (net of any costs expenses incurred by or on behalf of such Indemnitee in recovering collecting such amounts, including any increase of any premiums as a result thereof). If the Indemnitee actually receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount, including applicable deductibles any increases in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including premiums as a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto)result thereof. (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party Each Indemnitee shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder its Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. (c) The amount of Losses incurred by an Indemnitee shall be reduced by the present value of any Tax benefit and increased by the present value of any Tax detriment actually realized by the Indemnitee or its Affiliates arising in connection with the circumstances relating to such Loss Losses within the taxable year such loss arises and the following taxable year (and, if actually realized after any payment by the Indemnitor with respect to such Losses, the Indemnitee shall return to the extent required by applicable Law. All indemnifiable Indemnitor, as an adjustment to the Purchase Price, the amount of such benefit) in the Tax year in which such Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentwere incurred. (d) Except No Losses shall be determined or increased based on any multiple of any financial measure (including earnings, sales or other benchmarks) that might have been used by the Buyer in the valuation of the Company Entities or their respective business operations. (e) In no event shall any Party have any liability to any Person for any consequential, special, incidental, indirect or punitive damages, lost profits or similar items (including loss of revenue, income or profits, diminution of value or loss of business reputation, goodwill or opportunity relating to a breach or alleged breach hereof), except in the case of a Party’s obligation to indemnify an Indemnitee for amounts paid to a third party where such amounts are awarded pursuant to a Third-Party Claim (or settlement thereof) that is subject to indemnification in accordance with, and subject to the limitations set forth in, ARTICLE VIII. (f) For the sole purpose of determining Losses (and not for determining whether or not any breaches of representations or warranties have occurred), the representations and warranties contained in Section 3.07(b) and with respect of Seller shall not be deemed qualified by any references to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in materiality or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein”.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, 9 shall be (i) net of reduced by any amounts actually recovered received by the Indemnified Party under third party insurance policies with respect to such Loss, (ii) increased by any Tax cost actually incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (grossed up for such increase) in the taxable year in which the indemnity payment is received and (iii) reduced by any Tax benefit actually realized by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual a cash refund or reduction in cash Taxes payable by otherwise payable) as a result of such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party in the taxable year such Loss is incurred or their Affiliates which are attributable the immediately succeeding taxable year. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment related theretohereunder or the incurrence or payment of any indemnified amount. In computing the amount of any such Tax benefit actually realized, such Tax benefit shall be net of any Tax detriment arising from the receipt of any indemnification payment. For purposes of calculating the amount of Losses incurred out of or relating to any breach or inaccuracy of a representation or warranty in this Agreement or any certificate or document delivered hereunder, but not for purposes of determining whether or not a breach or inaccuracy has occurred, the references to “Business Material Adverse Effect,” “Purchaser Material Adverse Effect,” “material” or other materiality qualifications (or correlative terms), shall be disregarded. (b) If an the Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an the Indemnifying Party pursuant to this Article IX (which9, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by indemnity payment actually received from the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) up to the amount received by the Indemnified Party in respect thereof (after deducting the full amount from such third party, net of the any applicable premium adjustments and any costs or expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereincollection thereof.

Calculation of Indemnity Payments. (ai) Each Indemnified Party shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies; provided, that no Indemnified Party shall be required to initiate a legal proceeding in connection with such efforts and the indemnifying Party’s obligations to indemnify hereunder shall not be delayed on account of such efforts subject to the provisions set forth below regarding subsequent recoveries. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, IX by the indemnifying Party shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party other Person alleged to be responsible therefor (net of any actual costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party in connection with such recovery or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an increases in insurance premiums paid by the Indemnified Party recovers an amount from solely as a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion result of such Losses have been paid recovery). If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)indemnifying Party, then the such Indemnified Party shall promptly remit to reimburse the Indemnifying indemnifying Party the excess (if any) of (I) (A) the amount paid for any payment made or expense incurred by the Indemnifying such indemnifying Party in respect of connection with providing such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) indemnification up to the amount received by the Indemnified Party in respect thereof (after deducting the full amount Party, net of the any expenses incurred by the such Indemnified Party in procuring collecting such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentamount. (cii) Each Indemnified Party shall, and shall cause its respective Affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder its Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. In the event that an Indemnified Party fails to use commercially reasonable efforts to so mitigate an indemnifiable Loss, the indemnifying Party shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Party made such efforts. Without limiting the generality of the foregoing, after an Indemnified Party acquires knowledge of any fact or circumstance that results in or reasonably would be expected to result in an indemnified Loss for which the indemnifying Party may have an obligation to provide indemnification hereunder, such Indemnified Party shall notify the indemnifying Party promptly and implement such reasonable actions as the indemnifying Party shall request for the purposes of mitigating the possible Losses arising therefrom. The failure to provide such notice, however, shall not release the indemnifying Party from any of its obligations under this Article IX except to the extent required that the Indemnified Party is prejudiced by applicable Law. such failure. (iii) All indemnifiable Losses under incurred pursuant to this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case by reason of the representations and warranties contained in Section 3.07(b) and with respect state of facts giving rise to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or such Loss constituting a breach of any representation more than one representation, warranty, covenant or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinagreement.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, X shall be (i) net of any amounts actually recovered by the Indemnified Party (from a Third Party, including under insurance policies other than(after giving effect to any deductible, for the avoidance of doubt, captive insurance policiesretention or loss-rated premium adjustment) with respect to such Loss from any third party (net of any costs reasonable and documented out-of-pocket expenses incurred in recovering obtaining such amountrecovery, including applicable deductibles in the case of insurance proceeds) reasonable attorneys’ fees and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related theretoexpenses). (b) If an Indemnified Party recovers an amount from a third party Third Party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)X, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (Ii) (A) the amount paid to the Indemnified Party by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party from such Third Party in respect thereof of such Losses (after deducting the full amount net of the reasonable and documented out-of-pocket expenses incurred by the Indemnified Party in procuring obtaining such recovery, including reasonable attorneys’ fees and expenses) over (IIii) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party party hereto shall, and shall cause its respective Affiliates to, use take commercially reasonable best efforts steps to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would could reasonably be expected to give rise to any such Loss Loss. No party shall be entitled to any payment or indemnification hereunder for any amount if and to the extent required by applicable Law. All indemnifiable Losses under such party has been otherwise previously indemnified, paid or reimbursed for such amount pursuant to this Article IX shall be determined without duplication of recovery for the same Losses under X or any other provisions provision of this Agreement or any Transaction DocumentAgreement. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The Indemnified Party agrees to use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, IX by the Indemnifying Party in respect of a Third Party Claim or Direct Claim 55 shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party (other Person alleged to be responsible therefor in respect of the Losses to which such Third Party Claim or Direct Claim relates. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses in respect of a Third Party Claim or Direct Claim, subsequent to an indemnification payment by the Indemnifying Party in respect of a Third Party Claim or Direct Claim, then such Indemnified Party shall promptly pay to the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to the amount received by the Indemnified Party, net of any costs expenses incurred by such Indemnified Party in recovering collecting such amount, including applicable deductibles in the case . (b) The amount of insurance proceeds) and (ii) Losses incurred by an Indemnified Party shall be reduced to take account of any net Tax benefit with respect realized or reasonably expected to the Transferred Entities (including a benefit arising from a correlative adjustment) actually be realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party arising from the incurrence or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentsuch indemnified amount. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for For purposes of this Article IX, both the existence determining whether a breach of any or inaccuracy in or breach of any representation or warranty contained in this Agreement, Agreement has occurred and in calculating the amount of any Losses resulting from such inaccuracy or breachsubject to indemnification hereunder, shall be determined without giving effect in each case, all qualifications as to any “material,” “materiality,” , including “Material Adverse Effect,” “material” or any similar qualifications contained in term, limitation or otherwise applicable to such representation or warranty or any definition contained thereinqualification shall be disregarded.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall VII will be (ia) net of any amounts actually recovered by the Indemnified Party (including Indemnitee under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net less the cost to collect the proceeds of any costs in recovering such amountinsurance), including applicable deductibles in the case of insurance proceeds) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to actual amount by which the incurrence, accrual or payment Taxes of the Indemnitee are reduced by such Loss in the form tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of an actual the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in cash Taxes payable would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Indemnified Party or their Affiliates Loss in the taxable tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss was accrued if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or in the following taxable year more third-party (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred non-captive) insurance policies held by the Indemnified Party Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue claims against the applicable insurers for coverage of such Loss under such policies. If the Indemnitee actually receives a full or their Affiliates which are attributable to any indemnity partial recovery under such insurance policies following payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (whichLoss, for then the avoidance of doubt, includes setoffs against Indemnitee will refund amounts received from the Earnout Payment) plus (B) Indemnifying Party up to the amount of indemnification actually received by from the Indemnified Indemnifying Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinLoss.

Calculation of Indemnity Payments. (a) The Indemnitee agrees to use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The Indemnitor agrees that the Indemnitee shall have no obligation to maintain insurance other than against such losses and risks and in such amounts as are customary in the type and size of business to which the Indemnitee is engaged. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, X by the Indemnitor shall be (i) reduced by any and all amounts recovered by the Indemnitee under applicable insurance policies or from any other Person alleged to be responsible therefore. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any amounts actually recovered expenses incurred by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs Indemnitee in recovering collecting such amount, including applicable deductibles in the case . (b) The amount of insurance proceeds) and (ii) Losses incurred by an Indemnitee shall be reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) that is actually realized by the applicable Indemnified Party Indemnitee for the Tax period(s) in which the Loss occurs and for each of the ten (10) Tax periods following such Tax period(s) in which the Loss occurs. A Tax benefit will be considered to be realized on (A) the date on which the Tax benefit is received as a refund of Taxes, or their Affiliates attributable (B) to the incurrence, accrual or payment extent that the Tax benefit is not received as a refund of such Loss in the form of Taxes but rather is claimed as an actual reduction in cash item that reduces liability for Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account without basis), the due date (including extensions) of the Tax Return that reflects such change in liability for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from Taxes. The Indemnitee shall determine whether a third party Tax benefit is available in respect of Losses the relevant indemnifiable claim, provided that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for determination shall be reasonable and shall be made in good faith. For the avoidance of doubt, includes setoffs against the Earnout Payment), then the a Buyer Indemnified Party shall promptly remit be treated as recognizing a Tax benefit in a given Tax period only to the Indemnifying Party extent the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment associated Tax savings would not have been required in accordance with realized but for the second sentence incurrence or payment of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess any such indemnified amount. The amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion Losses incurred by an Indemnitee shall be increased to take account of any Taxes incurred by such Indemnitee as a result of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior receipt of the applicable RWI Recovery Paymentindemnity payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable No Losses under this Article IX shall be determined without duplication or increased based on any multiple of recovery for the same Losses under any financial measure (including earnings, sales or other provisions of this Agreement or any Transaction Document. (dbenchmarks) Except that might have been used by Buyer in the case valuation of the representations Company or its business and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinoperations.

Calculation of Indemnity Payments. (a) The amount of any Loss Losses for which the Indemnifying Party is otherwise entitled to indemnification is provided under pursuant to this Article IX, 13 shall be reduced by (i) net of any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized and all amounts received by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss from any other Person in the form of an actual reduction in cash Taxes payable by such Indemnified Party indemnity, contribution or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) other similar payment. If an Indemnified Party recovers receives any amounts under applicable insurance policies or from any other Person subsequent to an amount from a third party in respect of Losses that are indemnification payment by the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)Party, then the such Indemnified Party shall promptly remit to reimburse the Indemnifying Party the excess (if any) of (I) (A) the amount paid for any payment made or expense incurred by the such Indemnifying Party in respect of connection with providing such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) indemnification up to the amount received by the Indemnified Party in respect thereof (after deducting the full amount Party, net of the any expenses incurred by the such Indemnified Party in procuring collecting such recoveryamount. (b) over (II) Solely for purposes of determining the full amount of the indemnifiable Losses. If Buyer Losses suffered by an Indemnified Party as a result of any breach of or inaccuracy in any other Buyer Indemnitee recovers an amount under the RWI Policy representation, warranty, covenant or agreement made by a Party in this Agreement that is qualified or limited in scope as to materiality (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (whichand, for the avoidance clarification, not for purposes of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (eachdetermining whether any such representation, a “Section 9.02(f) Indemnity Payment”warrant, covenant or agreement has been breached or is inaccurate), andsuch representation, had warrant, covenant or agreement shall be deemed to be made without such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all qualification or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentlimitation. (c) Each Under no circumstances shall any Indemnified Party shallbe entitled to indemnification pursuant to this Article 13 for special, and shall cause its respective Affiliates toindirect, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware incidental, consequential, multiple of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication financial or business measure (including earnings, sales or other benchmarks), expectancy, indirect, punitive, exemplary or other similar damages, including diminution in value, lost profits, lost revenues, business interruptions, or loss of recovery for the same Losses under other provisions of this Agreement business opportunity or any Transaction Documentreputation. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall be (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid Payments by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party VIII in respect of such any Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party in respect thereof of any such claim, net of any deductible or any other expenses, including Taxes (after deducting but, in the full amount case of any currently deductible Loss, only to the expenses extent that the Taxes incurred by the Indemnified Party exceed the Taxes such Indemnified Party would have incurred if the Losses covered by insurance had never occurred) incurred by the Indemnified Party in procuring obtaining such recovery) over (II) third-party payment; provided that, if the full insurance proceeds are received by the Indemnified Party after such time payment has been made by the Indemnifying Party, the Indemnified Party shall, to the extent such proceeds, when added to the indemnity payment, exceed the amount of the indemnifiable Lossesrelevant Loss, promptly remit such excess proceeds to the Indemnifying Party. If Buyer The Indemnified Party shall use its reasonable best efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received Losses prior to such Section 9.02(fseeking indemnification under this Agreement. (b) Indemnity PaymentNotwithstanding any provision to the contrary herein, all or any portion (i) the indemnification obligations of any Section 9.02(fSeller or Option Holder under this Article VIII with respect to any Losses shall in no event exceed the aggregate Per Share Merger Consideration actually Table of Contents received by such Seller or such Option Holder, (ii) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion cumulative indemnification obligation of the Sellers and the Option Holders under this Article VIII with respect to any Losses shall in no event exceed the Aggregate Purchase Price in the aggregate, (iii) the cumulative indemnification obligation of Parent and the Surviving Corporation under this Article VIII with respect to any Losses shall in no event exceed the Aggregate Purchase Price in the aggregate previously refunded pursuant and (iv) the indemnification obligations of any Seller or Option Holder under this Article VIII shall not include any Losses, and no claim for indemnification for any Losses shall be made by any Parent Indemnified Party, to this Section 9.06(b)(ii)the extent such Losses (A) made prior were taken into account in the applicable RWI Recovery Paymentdetermination of Closing Working Capital or Closing Cash, in each case as reflected in the Final Closing Statement or (B) otherwise resulted in a reduction of the Aggregate Purchase Price. (c) Payments by an Indemnifying Party under this Article VIII in respect of any Losses shall be reduced by an amount equal to any actual cash Tax benefit reasonably expected to inure to the Indemnified Parties as a result of such Losses (and that would not have inured in the absence of such Losses and that is not taken into account in calculating Taxes for purposes of Section 8.04(a) above) within three years of the date such Losses are incurred. (d) Each Indemnified Party shallshall take, and shall cause its respective Affiliates toto take, use all reasonable best efforts actions to mitigate any Loss indemnifiable hereunder Losses upon and after becoming aware of any event that would reasonably be expected to give or circumstance giving rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentthereto. (de) Except in Notwithstanding anything to the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained contrary set forth in this Agreement, in no event shall an Indemnifying Party have any obligation to indemnify any Indemnified Party from and the amount of any Losses resulting from such inaccuracy against consequential or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinspecial damages.

Calculation of Indemnity Payments. (a) The amount Each Indemnitee shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies; provided, however, no delay or failure on the part of such Indemnitee to pursue and collect on any Loss for which such insurance policy shall limit the Indemnitee’s ability to make a claim of indemnification is provided hereunder or otherwise relieve any Indemnitor from its obligations under this Article IX, . The amount of Losses payable under this Article IX by the Indemnitor shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including Indemnitee under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party other Person alleged to be responsible therefor (net of any actual costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party Indemnitee in connection with such recovery or their Affiliates which are attributable increases in insurance premiums paid by the Indemnitee solely as a result of such recovery). If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any indemnity Losses, subsequent to an indemnification payment related thereto)by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount. (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party Each Indemnitee shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause use its respective Affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder its Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any such Loss to the extent required Losses that are indemnifiable hereunder. (c) The amount of Losses incurred by applicable Law. All indemnifiable Losses under this Article IX an Indemnitee shall be determined without duplication reduced by any net Tax benefit actually realized by the Indemnitee or its Affiliates directly arising from the payment or incurrence of recovery such Losses through the end of the taxable year in which such Losses were incurred (the “Tax Benefit Period”), after deducting all costs and expenses of recovery. A Tax benefit shall be “actually realized” at the time (i) any cash refund of Taxes is actually received or applied against other Taxes due (provided that for purposes of calculating the Tax Benefit Period only, and not for purposes of payment, the date of the filing of the refund claim shall be used) or (ii) of the filing of a Tax Return on which a deduction for the same Losses under relevant Loss is applied to reduce the amount of Taxes that would otherwise be payable, with the amount of any Tax benefit determined by comparing (A) the amount of Taxes that would be required to have been paid had a deduction for the relevant Loss not been taken into account on the relevant Tax Return, with (B) the amount of Taxes actually required to be paid or payable after taking into account such deduction. If the Indemnitee has other provisions losses, deductions, credits, credit carryovers, carrybacks or net operating losses available to it at the time of this Agreement the calculation, the Tax benefit from the payment or any Transaction Documentincurrence of the relevant Loss shall be deemed to be realized only after all other losses, deductions, credits, credit carryovers, carrybacks or net operating losses have been completely utilized. (d) Except No Indemnitor shall be obligated to indemnify any Indemnitee with respect to any Loss that was included in determining the case Closing Working Capital Adjustment Amount in accordance with Section 2.5, and, for the avoidance of doubt, the Specified Matter shall be excluded from the Closing Working Capital Adjustment Amount. (e) All materiality qualifications (such as “material”, “material adverse effect” and “Hostess Material Adverse Effect”) contained in the representations and warranties herein (other than the representations contained in Section 3.07(b4.5, Section 4.6, the second sentence of Section 4.8(c), Section 4.28, Section 5.11 and Section 5.12) and with respect to defined terms using the word “material,” shall be disregarded for all purposes of under this Article IX, both the existence including for purposes of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and determining the amount of any Losses resulting from and for purposes of determining the accuracy of such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinrepresentations and warranties.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall IX will be (i) net of any amounts actually recovered received by the Indemnified Party (including under third party insurance policies and any indemnity, contribution or other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) similar payment actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in each case with respect thereof (after deducting to such Loss. In addition, the full amount of any Loss for which indemnification is provided under this Article IX will be net of any Tax benefit actually realized (in the expenses incurred form of a cash refund or reduction in cash Taxes otherwise payable) as a result of such Loss by the Indemnified Party in procuring the taxable year such recovery) over (II) Loss is incurred or the full immediately succeeding taxable year. In computing the amount of any such Tax cost or Tax benefit, the indemnifiable Losses. If Buyer Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any other Buyer Indemnitee recovers an amount under item arising from the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion receipt of any Section 9.02(f) Indemnity Payment would not have been required in accordance with indemnity payment hereunder or the second sentence incurrence or payment of Section 9.05(a), Buyer shall (or shall cause any indemnified amount. In computing the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shallsuch Tax benefit actually realized, and such Tax benefit shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware be net of any event that would reasonably be expected to give rise to Tax detriment arising from the receipt of any such Loss to the extent required by applicable Lawindemnification payment. All indemnifiable Losses Upon making any indemnification payment under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence Indemnifying Party will, to the extent of such indemnification payment, be subrogated to all rights of Indemnified Party against any third person in respect of the Loss to which the indemnification payment related. Without limiting the generality or effect of any inaccuracy in or breach of any representation or warranty contained in this Agreementother provision hereof, each such Indemnified Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinabove-described subrogation rights.

Calculation of Indemnity Payments. (a) Each Indemnitee shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, ARTICLE VII by the Indemnitor shall be (i) reduced by any and all amounts recovered by the Indemnitee under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any amounts actually recovered reasonable expenses incurred by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs Indemnitee in recovering collecting such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to To the extent required by applicable Law. All indemnifiable , each Indemnitee shall take commercially reasonable steps to mitigate any Losses under this Article IX as soon as reasonably practicable after such Indemnitee becomes aware of any event which does, or could reasonably be expected to, give rise to any such Losses. (c) In no event shall any Party be determined without duplication liable for (and the term Losses shall exclude) any (i) consequential, lost profits, special, indirect, or diminution in value Losses unless, and solely to the extent that, such Losses (A) are, as of recovery for the same Losses under other provisions Closing Date, the reasonably foreseeable or contemplated consequence of this Agreement the breach giving rise to such damages and (B) can be shown with reasonable certainty, or (ii) punitive damages unless, and solely to the extent that, a Party becomes obligated to pay any Transaction Documentpunitive damages to a third party that is not an Affiliate of any Party. (d) Except in For purposes of determining the case amount of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” Losses (but not for purposes of determining whether a breach of a representation or warranty has occurred) under this Article IXVII, both the existence of any inaccuracy all “materiality” and “material adverse effect” qualifiers contained in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect disregarded. (e) Any and all amounts payable by any Indemnitor to any “material,” “materiality,” “Material Adverse Effect” an Indemnitee will be payable promptly directly by such Indemnitor (or similar qualifications contained its designee) by wire transfer of same-day funds in or otherwise applicable to accordance with payment instructions provided by such representation or warranty or any definition contained thereinIndemnitee.

Calculation of Indemnity Payments. (a) The amount of any Loss Holdco Indemnified Costs and ConAgra Indemnified Costs for which indemnification is provided under this Article IX, 12 shall be (i) net of any amounts actually recovered by the applicable Indemnified Party (including from any contribution or counterclaims or under any insurance policies other than(in each case, for after deducting therefrom all out-of-pocket costs, expenses and Taxes incurred in connection with the avoidance collection and realization of doubt, captive insurance policiessuch amounts) with respect to such Loss from any third party (net of any costs in recovering such amountHoldco Indemnified Costs or ConAgra Indemnified Costs, including applicable deductibles in the case of insurance proceeds) as applicable, and (ii) reduced shall be increased to take account of any net Income Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) cost actually realized incurred by the applicable Indemnified Party or their Affiliates arising from the receipt of indemnity payments hereunder attributable to fines and penalties incurred by Holdco or its Affiliates that are not deductible for Income Tax purposes (grossed up for Income Taxes imposed on such increase). In computing the incurrenceamount of any such Tax cost, accrual the applicable Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of such Loss in the form of an actual reduction in cash Taxes payable by such any indemnified amount. The applicable Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated agrees to use reasonable best efforts to pursue and collect on a “with any recovery available to it and without” basis and taking into account to net any such recovery against any claim for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have or, if an indemnification claim has already been paid by an Indemnifying Party pursuant to this Article IX (whichresolved, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount 100 paid by the Indemnifying Party in respect pursuant to such resolution. After it has been determined that there has been a breach of such Losses (whicha representation or warranty, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the of Holdco Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recoveryCosts recoverable under Section 12.1.1(e) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect regard to any “material,” “materiality,” “materiality qualification contained therein or to whether or not any such breach results or may result in a Company Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, VIII shall be (i) net of any amounts actually recovered by the Indemnified Party (including under third party insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party and shall be (net a) increased to take account of any costs in recovering net Tax cost actually incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (grossed up for such amount, including applicable deductibles in the case of insurance proceedsincrease) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual incurrence or payment of any such Loss in indemnified amount. In computing the form amount of an actual reduction in cash Taxes payable by any such Indemnified Party Tax cost or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or their Affiliates which are attributable to credit before recognizing any item arising from the receipt of any indemnity payment related thereto). (b) If an hereunder or the incurrence or payment of any indemnified amount. Following payment by the Indemnifying Party of any Losses, if the Indemnified Party recovers an amount from a receives any third party insurance recovery in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (whichLosses, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit pay over to the Indemnifying Party the excess amount of such insurance recovery (if any) of (I) (A) but not more than the amount of such Losses). The Losses paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by which there has been a third party insurance recovery that the Indemnified Party in respect thereof (after deducting has paid over to the full amount of the expenses incurred by the Indemnified Indemnifying Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second preceding sentence of shall not be counted toward the Indemnifying Party’s maximum aggregate liability under Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund 8.04. The Indemnified Party agrees to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate pursue and collect on any Loss indemnifiable hereunder upon recovery available from any insurance policy available to it and after becoming aware of any event that would reasonably be expected to give rise to net any such Loss recovery against any claim for indemnification hereunder or, if an indemnification claim has already been resolved, against the amount paid pursuant to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentsuch resolution. (db) Except For purposes of determining the amount of the Loss in respect of any indemnity claim pursuant to Sections 8.01 and 8.02 (but not for purposes of the case initial determination as to whether an inaccuracy exists or a breach has occurred giving rise to a right of indemnification), the representations and warranties contained in Section 3.07(b) made by each of Seller and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained Purchaser in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, Agreement shall be determined read without giving effect regard to any “material,” Business Material Adverse Effect”, “materiality,” “Purchaser Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition other materiality qualifiers contained therein.

Calculation of Indemnity Payments. (a) The Indemnitee agrees to use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The Indemnitor agrees that the Indemnitee shall have no obligation to maintain insurance other than against such losses and risks and in such amounts as are customary in the type and size of business to which the Indemnitee is engaged. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, IX by the Indemnitor shall be (i) reduced by any and all amounts recovered by the Indemnitee under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any such Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any amounts actually recovered expenses incurred by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs Indemnitee in recovering collecting such amount, including applicable deductibles in the case . (b) The amount of insurance proceeds) and (ii) Losses incurred by an Indemnitee shall be reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to Indemnitee arising from the incurrence, accrual incurrence or payment of any such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentindemnified amount. (c) Each Party shallparty agrees that, for so long as such party has any right of indemnification under Article IX, it will not, and shall cause agrees to use its respective Affiliates to, use commercially reasonable best efforts to mitigate ensure that its Affiliates do not, voluntarily or by discretionary action (including, without limitation, conducting any Loss indemnifiable hereunder upon and after becoming aware invasive sampling or testing), accelerate the timing of, or increase the cost, of any event obligation of any other party under Article IX, except to the extent that such action is taken (i) for a reasonable legitimate purpose and not with a purpose of discovering a condition that would reasonably be expected constitute a breach of any representation or warranty, covenant or agreement of the other party hereto or (ii) in response to give rise to a discovery by such party without violation of clause (i) above, of meaningful evidence of a condition that constitutes a breach of any representation, warranty, covenant or agreement of any other party hereunder (any such voluntary or discretionary action, other than as so excepted, a “Prohibited Action”). Notwithstanding anything to the contrary herein, an Indemnitor shall not be obligated to indemnify an Indemnitee for any Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or arising from any Transaction DocumentProhibited Action. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any No Losses resulting from such inaccuracy or breach, shall be determined without giving effect to or increased based on any “material,” “materiality,” “Material Adverse Effect” multiple of any financial measure (including earnings, sales or similar qualifications contained other benchmarks) that might have been used by Buyer in the valuation of the Business or otherwise applicable to such representation or warranty or any definition contained thereinthe Purchased Assets.

Calculation of Indemnity Payments. (a) The amount of any Loss Holdco Indemnified Costs and ConAgra Indemnified Costs for which indemnification is provided under this Article IX, 12 shall be (i) net of any amounts actually recovered by the applicable Indemnified Party (including from any contribution or counterclaims or under any insurance policies other than(in each case, for after deducting therefrom all out-of-pocket costs, expenses and Taxes incurred in connection with the avoidance collection and realization of doubt, captive insurance policiessuch amounts) with respect to such Loss from any third party (net of any costs in recovering such amountHoldco Indemnified Costs or ConAgra Indemnified Costs, including applicable deductibles in the case of insurance proceeds) as applicable, and (ii) reduced shall be increased to take account of any net Income Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) cost actually realized incurred by the applicable Indemnified Party or their Affiliates arising from the receipt of indemnity payments hereunder attributable to fines and penalties incurred by Holdco or its Affiliates that are not deductible for Income Tax purposes (grossed up for Income Taxes imposed on such increase). In computing the incurrenceamount of any such Tax cost, accrual the applicable Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of such Loss in the form of an actual reduction in cash Taxes payable by such any indemnified amount. The applicable Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated agrees to use reasonable best efforts to pursue and collect on a “with any recovery available to it and without” basis and taking into account to net any such recovery against any claim for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have or, if an indemnification claim has already been paid by an Indemnifying Party pursuant to this Article IX (whichresolved, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect pursuant to such resolution. After it has been determined that there has been a breach of such Losses (whicha representation or warranty, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the of Holdco Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recoveryCosts recoverable under Section 12.1.1(e) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect regard to any “material,” “materiality,” “materiality qualification contained therein or to whether or not any such breach results or may result in a Company Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) Each Indemnitee shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies or other collateral sources, including recovery from a third party (collectively, the “Collateral Sources”). The amount of Losses payable under this Article IX by the Indemnitor shall be reduced by any and all amounts recovered by the Indemnitee from Collateral Sources or any other Person alleged to be responsible therefor. If the Indemnitee receives any amounts from Collateral Sources or any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount. (b) The amount of any Loss for which indemnification is provided under this Article IX, Losses incurred by an Indemnitee shall be (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities realized in cash (including through a benefit arising from a correlative adjustmentcredit against other Taxes otherwise payable) actually realized by the applicable Indemnified Party Indemnitee or their its Affiliates attributable to (without treating the incurrence, accrual Acquired Companies or payment any of such Loss in its Subsidiaries as an Affiliate of the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated Seller) on a “with and without” basis and taking into account for this purpose any Taxes incurred by arising in connection with the Indemnified Party or their Affiliates which are attributable circumstances relating to any indemnity payment related thereto). such Losses no later than two (b2) If an Indemnified Party recovers an amount from a third party in respect of Losses that are years following the subject of indemnification hereunder after all or a portion year of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery PaymentLoss. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss Notwithstanding anything to the extent required by applicable Law. All indemnifiable Losses contrary in this Agreement, no Indemnitee shall be entitled to be compensated more than once under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction DocumentLoss. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, VIII or Article IX shall be (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party to prevent duplicative recovery (net of any costs expenses incurred to recover such amounts and any resulting increase in recovering such amount, including applicable deductibles in the case of insurance proceedspremiums) and (ii) reduced to take account of any net cash Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to in the incurrence, accrual taxable year of the incurrence or payment of any such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable any prior year (calculated by computing the amount of Taxes on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related theretowithout basis). (b) The Indemnified Parties shall use its commercially reasonable efforts to seek to recover any insurance proceeds as a result of any matter giving rise to an indemnification claim of the Indemnified Parties against the Indemnifying Party. If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)VIII, then the Indemnified Party shall (solely to prevent duplicative recovery) promptly remit to the Indemnifying Party the excess (if any) of (Ii) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance net of doubt, includes setoffs against the Earnout Paymentany expenses incurred to recover such amounts and any resulting increase in premiums) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (IIii) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party party shall, and shall cause its respective Affiliates affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder to the extent required by applicable Law upon and after becoming aware of any event that would could reasonably be expected to give rise to any such Loss Loss. No party shall be entitled to any payment, adjustment or indemnification more than once with respect to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentmatter, solely to prevent duplicative recovery. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for For purposes of this Article IX, both determining the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreementof, and the amount of Losses arising from, a breach of or inaccuracy in any Losses resulting from such inaccuracy representation or breachwarranty of the Operating Companies, shall be determined without giving effect PEL or the Seller in this Agreement (other than any representations or warranties in Section 3.07(b) of this Agreement) or the Indian Share Purchase Agreement, any limitations or qualifications as to any materiality, “material,” “materiality,” “Material Adverse Effectmaterial adverse effect” or similar qualifications contained qualifiers set forth in or otherwise applicable to such representation or warranty or any definition contained thereinshall be disregarded.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall VII will be (ia) net of any amounts actually recovered by the Indemnified Party (including Indemnitee under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net less the cost to collect the proceeds of any costs in recovering such amountinsurance), including applicable deductibles in the case of insurance proceeds) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to actual amount by which the incurrence, accrual or payment Taxes of the Indemnitee are reduced by such Loss in the form tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of an actual the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in cash Taxes payable would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Indemnified Party or their Affiliates Loss in the taxable tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss was accrued if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or in the following taxable year more third-party (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred non-captive) insurance policies held by the Indemnified Party Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue claims against the applicable insurers for coverage of such Loss under such policies. If the Indemnitee actually receives a full or their Affiliates which are attributable to any indemnity partial recovery under such insurance policies following payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (whichLoss, for then the avoidance of doubt, includes setoffs against Indemnitee will refund amounts - 38 - received from the Earnout Payment) plus (B) Indemnifying Party up to the amount of indemnification actually received by from the Indemnified Indemnifying Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinLoss.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, IX or Article X shall be (i) net of (a) any amounts actually recovered by the Indemnified Party (including under insurance policies other thanpursuant to any indemnification by, for the avoidance of doubtor indemnification agreement with, captive insurance policies) with respect to such Loss from any third party (net of any all costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) expenses reasonably and actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related theretoand its affiliates in seeking such recovery). , and (b) any insurance proceeds (net of any increased costs incurred by the Indemnified Party as a result of such claims, including any retroactive or prospective premium adjustments associated with such coverage) or other cash receipts or sources of reimbursement received as an offset against such Loss (such amounts actually recovered under (a) and (b), collectively, “Third Party Payments”). If an Indemnified Party recovers an amount from a third party Third Party Payment in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (IA) (Ai) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (Bii) the net amount of Third Party Payments (calculated and adjusted in accordance with this Section) received by the Indemnified Party in respect thereof minus (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (IIB) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (cb) Each Party party shall, and shall cause its respective Affiliates subsidiaries to, use take all reasonable best efforts steps to mitigate any Loss indemnifiable hereunder promptly upon and after becoming aware of any event that would could reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable for the recovery of Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case laws of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes State of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinNew York.

Calculation of Indemnity Payments. (a) If any Losses are covered under any insurance policy maintained and paid for by the Indemnified Party prior to the Closing, the Indemnified Party shall use commercially reasonable efforts to pursue a claim or claims under the applicable insurance policy or policies. The amount of any Loss for which indemnification is provided under this Article X shall be net of any amounts recovered by the Indemnified Party under such insurance policies with respect to such Loss. (b) An Indemnifying Party is authorized, in connection with payment of any Loss for which indemnification may be sought by an Indemnified Party under this Article X, to set off and apply any and all payments due to such Indemnifying Party under Section 2.03 or this Article X against any of and all of the obligations of the Indemnifying Party to such Indemnified Party under this Article X. The rights of the Indemnifying Party under this Section 10.06(b) are in addition (but without duplication) to other rights and remedies (including other rights of set-off) which such Indemnifying Party may have. (c) The amount of any Loss for which indemnification is provided under this Article IX, X shall be (iA) net increased to take account of any amounts net Tax cost actually recovered incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder, grossed up for such increase (including under insurance policies other than, for provided that the avoidance of doubt, captive insurance policies) with respect parties shall reasonably cooperate to minimize any such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceedscost) and (iiB) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual incurrence or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction DocumentLoss. (d) Except Notwithstanding anything in this Agreement to the contrary, (i) no indemnification may be claimed under this Article X for any Losses to the extent such Losses are included in the calculation of any adjustment to the Purchase Price pursuant to Article II, including in the case of indemnification by Seller to the representations extent such Losses are included as “Current Liabilities” or in the “Debt Amount” on the Statement and warranties contained in Section 3.07(b(ii) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breachLoss for which indemnification is provided under this Article X shall be, shall be determined without giving effect to in the case of Purchaser, net of any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained amounts actually received by Purchaser in or otherwise applicable accordance with Section 6.16 with respect to such representation or warranty or Loss. (e) In the case of indemnification by Seller for any definition contained thereinLosses that are recorded as a reserve on the Balance Sheet, the amount of recoverable Losses shall not be limited to the amount of such reserve.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, IX shall be reduced by (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any reasonable costs and expenses actually incurred in recovering such amountinsurance proceeds with respect to such Loss), including applicable deductibles in provided that the case of Indemnified Party shall be under no obligation to pursue recovery under any insurance proceeds) policies, and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable in the Tax year that the Loss occurs and immediately succeeding [***] Tax years (“Tax Benefit”). Such Tax Benefit shall be paid over to the incurrence, accrual or Indemnifying Party (to the extent such Tax Benefit does not offset a claim) within 30 days after the end of the relevant Tax period in which such Tax Benefit was realized. Together with the payment of such Loss described in the form of an actual reduction in cash Taxes payable by such immediately preceding sentence, the Indemnified Party or their Affiliates in shall submit to the taxable period the applicable Loss was accrued or in the following taxable year (calculated on Indemnifying Party a “with and without” basis and taking into account for this purpose any Taxes incurred certification signed by the Indemnified Party or their Affiliates which Party’s tax return preparer certifying that the amount of the Tax Benefit paid for the relevant Tax year is accurate and to the extent known whether future Tax Benefits are attributable to any indemnity payment related thereto)expected and the amounts thereof. (b) If an Indemnified Party recovers an amount from a third party Third Party in respect of Losses that are the subject of indemnification hereunder after all or hereunder, then the Indemnified Party shall provide prompt notice to the Indemnifying Party of such amount and a description of the basis for the payment of such amount by the Third Party. After any portion of such any Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (Ai)(A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party from any Third Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) thereof, over (IIii) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of indemnification to be paid by Seller to Purchaser after the Closing shall include a gross-up to take into account Purchaser's ownership interest in Seller. For the avoidance of doubt (i) any gross up shall equal the amount of indemnification owed by Seller to Purchaser multiplied by one divided by a fraction, the numerator of which is the number of Fully Diluted shares of the Common Stock held on the date of such payment by Purchaser and its affiliates, designees and nominees, and the denominator of which is the number of Fully Diluted shares of Common Stock, determined as of such date, and (ii) in the event that Purchaser suffers a Loss for which indemnification is provided to Purchaser under Section 8.02(i) as a result of Losses of Seller (including Losses of Seller as a result of breach of Seller's representations and warranties set forth in Article III), then (A) the amount of Purchaser's Loss shall be deemed to be the full amount of such Losses of Seller (and, for the avoidance of doubt, not the percentage of such Losses of Seller represented by the percentage of issued and outstanding Common Stock held by Purchaser) and (B) no gross up shall be paid. For the avoidance of doubt, the amount of the Loss arising out of any item included as a liability in calculating either Seller or WVS-I Closing Working Capital or Seller or WVS-I Closing Debt, as applicable, shall be calculated net of the amount so included. The amount of the Loss arising out of any reduction in value of any Current Asset acquired at the Closing shall be calculated net of the reported value of such Current Asset used in calculating either Seller or WVS-I Closing Working Capital, as applicable. (b) The amount of any Loss for which indemnification is provided under this Article IX, VIII shall be (i) net of any amounts actually recovered or recoverable by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party and shall be (net a) increased to take account of any costs in recovering net Tax cost actually incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (grossed up for such amount, including applicable deductibles in the case of insurance proceedsincrease) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual incurrence or payment of any such Loss in indemnified amount. In computing the form amount of an actual reduction in cash Taxes payable by any such Indemnified Party Tax cost or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (whichTax benefit, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion receipt of any Section 9.02(f) Indemnity Payment would not have been required in accordance with indemnity payment hereunder or the second sentence of Section 9.05(a), Buyer shall (incurrence or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware payment of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentindemnified amount. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of indemnification to be paid by Seller to Purchaser after the Closing shall include a gross-up to take into account Purchaser’s ownership interest in Seller. For the avoidance of doubt (i) any gross up shall equal the amount of indemnification owed by Seller to Purchaser multiplied by one divided by a fraction, the numerator of which is the number of Fully Diluted shares of the Common Stock held on the date of such payment by Purchaser and its affiliates, designees and nominees, and the denominator of which is the number of Fully Diluted shares of Common Stock, determined as of such date, and (ii) in the event that Purchaser suffers a Loss for which indemnification is provided to Purchaser under Section 8.02(i) as a result of Losses of Seller (including Losses of Seller as a result of breach of Seller’s representations and warranties set forth in Article III), then (A) the amount of Purchaser’s Loss shall be deemed to be the full amount of such Losses of Seller (and, for the avoidance of doubt, not the percentage of such Losses of Seller represented by the percentage of issued and outstanding Common Stock held by Purchaser) and (B) no gross up shall be paid. For the avoidance of doubt, the amount of the Loss arising out of any item included as a liability in calculating either Seller or WVS-I Closing Working Capital or Seller or WVS-I Closing Debt, as applicable, shall be calculated net of the amount so included. The amount of the Loss arising out of any reduction in value of any Current Asset acquired at the Closing shall be calculated net of the reported value of such Current Asset used in calculating either Seller or WVS-I Closing Working Capital, as applicable. (b) The amount of any Loss for which indemnification is provided under this Article IX, VIII shall be (i) net of any amounts actually recovered or recoverable by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party and shall be (net a) increased to take account of any costs in recovering net Tax cost actually incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (grossed up for such amount, including applicable deductibles in the case of insurance proceedsincrease) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual incurrence or payment of any such Loss in indemnified amount. In computing the form amount of an actual reduction in cash Taxes payable by any such Indemnified Party Tax cost or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (whichTax benefit, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion receipt of any Section 9.02(f) Indemnity Payment would not have been required in accordance with indemnity payment hereunder or the second sentence of Section 9.05(a), Buyer shall (incurrence or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware payment of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Documentindemnified amount. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall be Payments by an Indemnifying Party pursuant to Section 10.02 (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other thanincluding, for the avoidance of doubt, captive insurance policiesin connection with any Legacy Environmental Release Liability) with or Section 10.03, as applicable, in respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in Loss shall be limited to the case of insurance proceeds) and (ii) reduced to take account amount of any net Tax benefit with respect to Liability that remains after deducting therefrom any insurance (excluding the Transferred Entities (including a benefit arising from a correlative adjustmentR&W Insurance Policy) proceeds and any indemnity, contribution or other similar payment actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred received by the Indemnified Party or their its Affiliates in respect of any matter for which are attributable an Indemnifying Party is otherwise indemnifying such Indemnified Party (in each case, net of the cost and expense of obtaining any such insurance, indemnity, contribution or similar proceeds and any increased premiums) it being agreed that if third-party insurance (excluding the R&W Insurance Policy) or indemnification, contribution or similar proceeds in respect of such matter is recovered by the Indemnified Party or its Affiliates subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment previously made (in each case, net of the cost and expense of obtaining any indemnity payment related theretosuch insurance, indemnity, contribution or similar proceeds and any increased premiums). For the avoidance of doubt, the calculation of a Loss shall not be reduced for or on account of any actual or purported Tax benefit resulting from the facts underlying such Loss. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to or concurrently with seeking indemnification under this Agreement. (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full The amount of the expenses incurred by the Indemnified Party any Loss arising out of any item included as a Current Liability in procuring such recovery) over calculating Closing Working Capital (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) finally determined pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”2.08), andif any, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion be calculated net of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shallamount so included, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss but only to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for that the same Losses under other provisions of this Agreement or any Transaction DocumentFinal Purchase Price calculated pursuant to Section 2.08 was adjusted downward on a dollar-for-dollar basis to reflect such Losses. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IXWhile not required to file insurance claims, shall be (i) net of if the Indemnitee receives any amounts actually recovered under applicable insurance policies or from any other Person alleged to be responsible for any Losses subsequent to an indemnification payment by the Indemnified Party (including under insurance policies other thanIndemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the avoidance of doubtamount received by the Indemnitee, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering or expenses incurred by such amountIndemnitee, including applicable deductibles in the case aggregate cost of pursuing any insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto)claims. (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party Each Indemnitee shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder its Losses as required by, and in accordance with, applicable Law upon and after becoming aware gaining Knowledge of any event 62 114399-0014/143865664.11 or condition that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All Losses that are indemnifiable Losses under this Article IX Agreement. (c) No Losses shall be determined without duplication or increased based on any multiple of recovery any financial measure (including earnings, sales or other benchmarks) that might have been used by the Buyer in the valuation of the Funds, the Advisory Accounts or the Business, and in no event shall any Party have any Liability to any Person for any consequential, special, incidental, indirect or punitive damages, except in the same Losses under other provisions case of a Party’s obligation to indemnify an Indemnitee for amounts paid to a third party where such amounts are awarded pursuant to a Third-Party Claim (or settlement thereof) that is subject to indemnification in accordance with, and subject to the limitations set forth in, this Agreement or any Transaction DocumentArticle 10. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for For purposes of this Article IX10, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, a Loss shall be determined without giving effect regard to any “material,” “materiality,” “, Business Material Adverse Effect” , Buyer Material Adverse Effect or other similar qualifications materiality qualification contained in or otherwise applicable to such any representation or warranty or any definition contained thereinwarranty.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, VIII or Article IX shall be (i) calculated net of any amounts actually recovered received (net of any premium increases or retroactive premium adjustments and any costs and expenses incurred by the Indemnified Party in connection with such recovery) by the Indemnified Party (including under insurance policies other thanand the R&W Insurance Policy). The Indemnified Party shall use, for the avoidance of doubtand cause its Affiliates to use, captive commercially reasonable efforts to seek recovery under all insurance policiesand indemnity, contribution or similar provisions covering such Loss; provided that no Purchaser Indemnitee shall have any obligation to (i) with respect institute any Proceeding to obtain any such Loss from any third party (net of any costs insurance if such Proceeding is not deemed, in recovering Purchaser’s reasonable discretion, to be covered by such amount, including applicable deductibles in the case of insurance proceeds) and policy or (ii) reduced make any material expenditures to take account of any net Tax benefit with respect obtain such recovery unless the Indemnifying Party has agreed to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of reimburse such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto)expenditures. (b) If an Indemnified Party recovers an amount from a third party Third Party in respect of Losses that are the subject of indemnification hereunder or after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)VIII, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (Ii) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (IIii) the full amount of the indemnifiable Losses, including for any out-of-pocket expenses (including reasonable attorney’s fees and expenses) expended by the Indemnified Party in pursuing such recovery or defending any claims arising therefrom. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made Upon making any payment (which, to the Indemnified Party for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded indemnification claim pursuant to this Section 9.06(b)(ii)) made prior Article VIII, the applicable RWI Recovery PaymentIndemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any Third Party insurers and any Third Parties that do not have any material ongoing relationship with Purchaser, its Affiliates or the Business, and the Indemnified Party shall assign any such rights to the Indemnifying Party upon the reasonable written request of the Indemnifying Party. (c) Each Party shall, and shall cause its respective Affiliates to, use commercially reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any such Loss that are indemnifiable hereunder. Neither Party shall be entitled to any payment, adjustment or indemnification more than once with respect to the extent required by applicable Law. All indemnifiable same matter (it being understood, however, that the fact that Losses may be recovered under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions more than one provision of this Agreement or shall not prevent an Indemnified Party from recovering all Losses to which it is entitled under any Transaction Documentprovision of this Agreement). (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for For purposes of this Article IXdetermining whether there has been a breach of, both the existence of any or inaccuracy in or breach of any representation or warranty contained in this Agreement, or failure of any covenant or agreement and calculating the amount of any Losses resulting from such inaccuracy Loss with respect thereto, all limitations or breachqualifications contained therein based on materiality, materiality threshold or Material Adverse Effect shall be determined disregarded. For the avoidance of doubt, without giving effect limiting Section 5.32 or Section 8.02(a)(i)(B), this Section 8.05(d) applies to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereincertificate delivered hereunder.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall be (i) net of any amounts actually recovered by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment)IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (Ii) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (IIii) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained therein.

Calculation of Indemnity Payments. (a) Each Indemnitee shall use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, ARTICLE VI by the Indemnitor shall be (i) reduced by any and all amounts recovered by the Indemnitee under applicable insurance policies or from any other Person alleged to be responsible therefor. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnitor, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee, net of any amounts actually recovered reasonable expenses incurred by the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net of any costs Indemnitee in recovering collecting such amount, including applicable deductibles in the case of insurance proceeds) and (ii) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to To the extent required by applicable Law. All indemnifiable , each Indemnitee shall take commercially reasonable steps to mitigate any Losses under this Article IX as soon as reasonably practicable after such Indemnitee becomes aware of any event which does, or could reasonably be expected to, give rise to any such Losses. (c) In no event shall any Party be determined without duplication liable for (and the term Losses shall exclude) any (i) consequential, lost profits, special, indirect, exemplary or diminution in value Losses unless, and solely to the extent that, such Losses (A) are, as of recovery for the same Losses under other provisions Closing Date, the reasonably foreseeable or contemplated consequence of this Agreement the breach giving rise to such damages and (B) can be shown with reasonable certainty, or (ii) punitive damages unless, and solely to the extent that, a Party becomes obligated to pay any Transaction Documentpunitive damages to a third party that is not an Affiliate of any Party. (d) Except in For purposes of determining the case amount of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” Losses (but not for purposes of determining whether a breach of a representation or warranty has occurred) under this Article IXVI, both the existence of any inaccuracy all “materiality” and “material adverse effect” qualifiers contained in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect disregarded. (e) Any and all amounts payable by any Indemnitor to any “material,” “materiality,” “Material Adverse Effect” an Indemnitee will be payable promptly directly by such Indemnitor (or similar qualifications contained its designee) by wire transfer of same-day funds in or otherwise applicable to accordance with payment instructions provided by such representation or warranty or any definition contained thereinIndemnitee.

Calculation of Indemnity Payments. (a) The amount of any Loss for which indemnification is provided under this Article IX, shall VII will be (ia) net of any amounts actually recovered by the Indemnified Party (including Indemnitee under insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss from any third party (net less the cost to collect the proceeds of any costs in recovering such amountinsurance), including applicable deductibles in the case of insurance proceeds) and (iib) reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to actual amount by which the incurrence, accrual or payment Taxes of the Indemnitee are reduced by such Loss in the form tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi-annually) of an actual the amount by which the Taxes of the Indemnitee would be reduced by such Loss if the reduction in cash Taxes payable would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return, and (c) increased by the actual amount by which the Taxes of the Indemnitee are increased by such Indemnified Party or their Affiliates Loss in the taxable tax period in which the indemnification payment is made, or the net present value (calculated using the applicable U.S. federal long-term rate compounded semi­annually) of the amount by which the Taxes of the Indemnitee would be increased by such Loss was accrued if the increase in Taxes would be realized in tax periods following the tax period in which the indemnification payment is made), treating any Tax attribute resulting from such Loss as the last such Tax attribute on any Tax Return. If any Loss related to a claim by an Indemnitee is covered by one or in the following taxable year more third-party (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred non-captive) insurance policies held by the Indemnified Party Indemnitee, the Indemnitee will use Commercially Reasonable Efforts to pursue claims against the applicable insurers for coverage of such Loss under such policies. If the Indemnitee actually receives a full or their Affiliates which are attributable to any indemnity partial recovery under such insurance policies following payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (whichLoss, for then the avoidance of doubt, includes setoffs against Indemnitee will refund amounts received from the Earnout Payment) plus (B) Indemnifying Party up to the amount of indemnification actually received by from the Indemnified Indemnifying Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” such Loss. 7.04 Procedures for purposes Defense, Settlement and Indemnification of this Article IX, both the existence of any inaccuracy in Direct or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinThird-Party Claims.

Calculation of Indemnity Payments. The amount of Losses payable under this Article XII by the Indemnitor shall be reduced by (a) The any and all amounts actually received by the Indemnitee under applicable insurance policies (less (i) the cost and expense of pursuing such insurance recovery, (ii) the deductible associated therewith and (iii) the amount of all retro-premium obligations and reasonably anticipated premium increases resulting from such recovery) or from any other Person alleged to be responsible therefor (less the cost and expense of pursuing such recoveries), and (b) any Tax benefits actually realized by the Indemnitee or any member of its Affiliated Group prior to the time such Losses are payable by the Indemnitor and attributable to such Losses. If the Indemnitee receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses or actually realizes any Tax benefits attributable to such Losses, subsequent to an indemnification payment by the Indemnitor (and in the case of any such Tax benefits, the Tax benefit is actually realized by the Indemnitee in the Tax year of the Loss or the immediately following Tax year), then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received or actually realized by the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount. In connection with any Losses for which an Indemnitee may seek indemnification is provided under this Article IXXII, such Indemnitee will in its reasonable discretion in determining whether to seek recovery under available insurance coverage; provided, however, that the Indemnitee shall be have no obligation to first submit or to collect upon any applicable insurance coverage as a precondition to making a claim for indemnification hereunder or obtaining indemnification for Losses therefor, and the parties hereto agree, without limiting any other rights any Indemnitor may have against any Indemnitee, not to delay in any manner the payment to any Indemnitee of such indemnification based on the Indemnitee’s failure to have sought or obtained recovery under available insurance coverage at the time any such claim is made. With respect to the Tax benefits described above, which for avoidance of doubt are limited to Tax benefits actually realized by the Indemnitee in the Tax year of the Loss or the Tax year immediately following the Tax year of the Loss (such Tax benefits, the “Realized Tax Benefits”), the following shall apply: (i) net the aggregated amount of such Realized Tax Benefits with respect to any amounts Loss shall in no event exceed the indemnification payment actually recovered by received from the Indemnified Party (including under insurance policies other than, for the avoidance of doubt, captive insurance policies) Indemnitor with respect to such Loss from any third party (net of any costs in recovering such amount, including applicable deductibles in the case of insurance proceeds) and Loss; (ii) reduced such Realized Tax Benefits shall be calculated in good faith by the Indemnitee and the Indemnitee shall have no obligation to take account disclose Tax Returns or other confidential Tax information in support of such calculation; (iii) such good faith calculation of the Realized Tax Benefits shall be made by computing the amount of Taxes before and after inclusion of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates items attributable to the incurrence, accrual Losses for which the indemnification payment was made and by treating such Tax items as the last items claimed for any taxable period; and (iv) if subsequent Tax adjustments are made for any taxable period as a result of or payment in settlement of such Loss any audit or other administrative proceeding that results in the form of an actual any reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Payment. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from Realized Tax Benefit, the Indemnitor shall promptly refund the difference between the amount of the Realized Tax Benefit paid by the Indemnitee and the amount that should have been paid after taking into account such inaccuracy or breachadjustments (again, shall be all as determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereingood faith by the Indemnitee).

Calculation of Indemnity Payments. (a) Each Indemnified Party agrees to use its commercially reasonable efforts to pursue and collect on any recovery available under any insurance policies. The Parties agree that after the Closing Date no Party shall have an obligation to maintain insurance other than (1) AST, which shall maintain insurance against such losses and risks and in such amounts as are customary in the type and size of business in which AST is engaged, and (2) the “tail” directors’ and officers’ insurance coverage required to be maintained under Section 7.4. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, 13 by the Indemnifying Party shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party (other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses 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 up to the amount received by the Indemnified Party, net of (A) any costs expenses incurred by such Indemnified Party in recovering collecting such amount, including applicable deductibles in the case of insurance proceeds) and (iiB) the estimated increase in any premiums payable by the Indemnified Party over the remaining term of any applicable insurance policy. (b) The amount of Losses incurred by an Indemnified Party shall be reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual or payment of such Loss in the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior circumstances giving rise to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery PaymentLoss. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable No Losses under this Article IX shall be determined without duplication or increased based on any multiple of recovery for the same Losses under any financial measure (including earnings, sales, or other provisions of this Agreement or any Transaction Document. (dbenchmarks) Except that might have been used by WT in the case valuation of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreement, and the amount of any Losses resulting from such inaccuracy or breach, shall be determined without giving effect to any “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in or otherwise applicable to such representation or warranty or any definition contained thereinAST.

Calculation of Indemnity Payments. (a) The Indemnified Party agrees to use its commercially reasonable efforts to pursue and collect on any recovery that is reasonably available under any insurance policies; provided that the Indemnified Party shall not be required to instigate litigation or other dispute resolution. The amount of any Loss for which indemnification is provided Losses payable under this Article IX, IX by the Indemnifying Party in respect of a Third Party Claim or Direct Claim shall be (i) net of reduced by any and all amounts actually recovered by the Indemnified Party (including under applicable insurance policies other than, for the avoidance of doubt, captive insurance policies) with respect to such Loss or from any third party (other Person alleged to be responsible therefor in respect of the Losses to which such Third Party Claim or Direct Claim relates. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for any Losses in respect of a Third Party Claim or Direct Claim, subsequent to an indemnification payment by the Indemnifying Party in respect of a Third Party Claim or Direct Claim, then such Indemnified Party shall promptly pay to the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to the amount received by the Indemnified Party, net of any costs expenses incurred by such Indemnified Party in recovering collecting such amount, amount (including applicable deductibles any premium increases reasonably and in the case good faith related to such claim). (b) The amount of insurance proceeds) and (ii) Losses incurred by an Indemnified Party shall be reduced to take account of any net Tax benefit with respect to the Transferred Entities (including a benefit arising from a correlative adjustment) actually realized by the applicable Indemnified Party or their Affiliates attributable to arising from the incurrence, accrual incurrence or payment of any such Loss indemnified amount, less any reasonable and documented costs and expenses incurred directly in connection with the form of an actual reduction in cash Taxes payable by such Indemnified Party or their Affiliates in the taxable period the applicable Loss was accrued or in the following taxable year (calculated on a “with and without” basis and taking into account for this purpose any Taxes incurred by the Indemnified Party or their Affiliates which are attributable to any indemnity payment related thereto). (b) If an Indemnified Party recovers an amount from a third party in respect of Losses that are the subject of indemnification hereunder after all or a portion realization of such Losses have been paid by an Indemnifying Party pursuant to this Article IX (which, for the avoidance of doubt, includes setoffs against the Earnout Payment), then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (I) (A) the amount paid by the Indemnifying Party in respect of such Losses (which, for the avoidance of doubt, includes setoffs against the Earnout Payment) plus (B) the amount received by the Indemnified Party in respect thereof (after deducting the full amount of the expenses incurred by the Indemnified Party in procuring such recovery) over (II) the full amount of the indemnifiable Losses. If Buyer or any other Buyer Indemnitee recovers an amount under the RWI Policy (each, a “RWI Recovery Payment”) after such time as Sapphire has made any payment (which, for the avoidance of doubt includes setoffs against the Earnout Payment) pursuant to Section 9.02(f) (each, a “Section 9.02(f) Indemnity Payment”), and, had such RWI Recovery Payment been received prior to such Section 9.02(f) Indemnity Payment, all or any portion of any Section 9.02(f) Indemnity Payment would not have been required in accordance with the second sentence of Section 9.05(a), Buyer shall (or shall cause the applicable Buyer Indemnitee to) refund to Sapphire the excess amount of all aggregate Section 9.02(f) Indemnity Payments (less any portion of the aggregate previously refunded pursuant to this Section 9.06(b)(ii)) made prior the applicable RWI Recovery Paymentbenefits. (c) Each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to mitigate any Loss indemnifiable hereunder upon and after becoming aware of any event that would reasonably be expected to give rise to any such Loss to the extent required by applicable Law. All indemnifiable Losses under this Article IX shall be determined without duplication of recovery for the same Losses under other provisions of this Agreement or any Transaction Document. (d) Except in In the case of the representations and warranties contained in Section 3.07(b) and with respect to defined terms using the word “material,” for purposes of this Article IX, both the existence of any inaccuracy in or breach of any representation or warranty contained in this Agreementthat is limited by the word “Material Adverse Effect,” “material” or by any similar term or limitation, the failure of such representation or warranty, as the case may be, and the amount of any Losses resulting from such inaccuracy or breach, subject to indemnification hereunder shall be determined without giving effect to any “material,” “materiality,” as if the word “Material Adverse Effect,” “material” or any similar qualifications contained in term or otherwise applicable to such representation or warranty or any definition contained limitation were not included therein.