If # Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable Losses pursuant to [Section 7(a), (ii)] no determination of whether Indemnitee has satisfied any applicable standard of conduct under Ohio law is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or # Indemnitee has been determined or deemed pursuant to [Section 7(b) or (c)])] to have satisfied any applicable standard of conduct under Ohio law which is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, then the Company shall pay to Indemnitee, within five business days after the later of # the Notification Date in respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted and # the earliest date on which the applicable criterion specified in [clause (i), (ii) or (iii) above] shall have been satisfied, an amount equal to the amount of such Indemnifiable Losses.

Standard of Conduct. To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall have been finally disposed of, any determination of whether the Indemnitee has satisfied any applicable standard of conduct under Nevada law that is a legally required condition to indemnification of the Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the Company (a “Standard of Conduct Determination”) shall be made as follows:

SECTION # Setoff Permitted. Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, Buyer may set off or recoup the amount of Indemnifiable Losses Seller or any of its Affiliates is required to pay to Buyer or any of its Affiliates pursuant to this Article 8 against any Liability of Buyer to Seller under Section 2.11 (Earnout); provided, however, that # in no event shall Buyer have any rights of set off under this Section 8.05 unless a final determination of the amount of Indemnifiable Losses has been made and # any such setoff shall be subject to the limitations and other provisions of this Article 8. A “final determination” will exist when # the parties to the dispute have reached an agreement in writing, or # a Governmental Entity of competent jurisdiction will have entered a final Order or rendered a final determination with respect to disputes the parties have agreed to submit thereto.

“NOI” means, for any period, an amount equal to # Net Income for such period (excluding the effect of gains and losses from the sale of real property, debt restructurings, extinguishment or forgiveness of debt, write-ups and write-downs, acquisition costs for consummated acquisitions, and any other extraordinary or other non-recurring gains or losses or other non-cash gains or losses outside the ordinary course of business) plus # an amount which in the determination of Net Income for such period has been deducted for # proceeds to minority interests, # income taxes, # depreciation and amortization, # Interest Expense and # actual property management expense, less # 3% of the total real estate revenue of the Combined Parties as an assumed property management expense.

Losses Net of Insurance and Tax Benefits. With respect to any matter covered by this Article X, the Claiming Party shall use commercially reasonable efforts to seek to recover all amounts to which such Claiming Party may be entitled with respect to any Losses under all applicable insurance policies (including the Representation and Warranty Insurance Policy) or from third-parties who may otherwise be responsible therefor, in each case, consistent subject to the terms and conditions set forth in this Article X. All Losses shall be calculated net of any insurance proceeds or other amounts from third-parties, in each case, actually received by the Claiming Party (net of any deductible amounts and reasonable out-of-pocket expenses and costs of collection). In addition, the amounts for which an Indemnifying Party shall be liable under this Article X shall be net of any Tax benefit actually realized by the Claiming Party in the Tax year or immediately succeeding Tax year of the facts and circumstances giving rise to the liability of the Indemnifying Party. To the extent that any such insurance proceeds or other amounts are collected by the Claiming Party in respect of any Losses previously paid by the Indemnifying Party, the Claiming Party shall reimburse the Indemnifying Party for any and all Losses paid by the Indemnifying Party to the Claiming Party pursuant to this Article X.

Share of Operating Profits and Operating Losses. For so long as a Product is being sold in the Shared Territory, Unum and SGI will share all Operating Profits and all Operating Losses (as applicable) for each Product in the Shared Territory on the basis of fifty percent (50%) to SGI and fifty percent (50%) to Unum.

to the extent covered by insurance and actually reimbursed, or, so long as the ​ has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses for such Test Period with respect to liability or casualty events or business interruption.

Determination of Fair Market Value. For purposes of this [Section 3(b)], “fair market value” of a share of Applicable Stock (or Common Stock if the Applicable Stock has been automatically converted into Common Stock) as of a particular date (the “Determination Date”) shall mean:

Determination of Cap or Payment. Notwithstanding any other provision of this Plan to the contrary, if any payments or benefits paid by the Company pursuant to this Plan, including any accelerated vesting or similar provisions (“Plan Payments”), would cause some or all of the Plan Payments or any other payments made to or benefits received by a Participant in connection with a Change of Control (such payments or benefits, together with the Plan Payments, the “Total Payments”) to be subject to the tax (“Excise Tax”) imposed by Code Section 4999 but for this Section 18(d), then the Total Payments shall be delivered either # in full or # in an amount such that the value of the aggregate Total Payments that the Participant is entitled to receive shall be One Dollar ($1.00) less than the maximum amount that the Participant may receive without being subject to the Excise Tax, whichever of (A) or (B) results in the receipt by the Participant of the greatest benefit on an after-tax basis (taking into account applicable federal, state and local income taxes and the Excise Tax).

Each Participant’s Award for a Plan Year will be determined after the end of each Plan Year by multiplying the Participant’s Target Award by the Final Funding Percentage; and multiplying such amount by the applicable Individual Performance Modifier determined in accordance with [Article VI].B. below. The O&C Committee shall determine each Award for Executive Officers and Additional Persons and the Executive Team shall determine each Award for other Participants.