Sources of Recovery. Other than in the case of Claims based on Fraud, except as specifically provided below, the sole and exclusive remedy of each Buyer Indemnified Party in respect of any Claim arising under Sections 9.04
Sources of Recovery. To the extent a monetary obligation or payment is due and owing by the Owners to any Holdco Indemnitee pursuant to this Article 9, at the Indemnitor’s option, any such indemnification payment may be satisfied, as applicable, (i) pursuant to a forfeiture of a corresponding amount of any shares of CLNH then held by such Indemnitor, based on the fair market value (calculated by taking the average of the highest and lowest selling prices of the shares of CLNH) of such shares of CLNH as of the date of determination that such indemnification obligation is due and owing (by final nonappealable court order or agreement of the Indemnitor and Holdco Indemnitee); and/or (ii) by wire transfer of immediately available funds to the account or accounts designated in writing by Holdco Indemnitee within five (5) Business Days after it is established (by final nonappealable court order or agreement of the Indemnitor and Holdco Indemnitee) that Holdco Indemnitee is entitled to such payment under this Article 9.
Sources of Recovery. The Milestone Set-off shall be the sole and exclusive recourse for any and all payments that may become owing to the Immedica Indemnified Parties pursuant to a claim for indemnification under this Article VII (other than (A) pursuant to Section 7.2(d), (B) pursuant to Section 7.2(b) with respect to any breach of or failure to perform any covenant or obligation contained in this Agreement that by its terms contemplates performance thereof following the Closing and such breach remains uncured for a period greater than sixty (60) days after Immedica provides written notice of such breach, and (C) with respect to willful misconduct or intentional fraud (collectively, the “Excluded Indemnity Matters”)); provided that (i) the Immedica Indemnified Parties shall not be entitled to recover any Loss (or series of related Losses) against Aeglea or any of its Subsidiaries (other than by means of a Milestone-Setoff) with respect to an Excluded Indemnity Matter referred to in the foregoing clause (B) unless and until such Loss (or series of related Losses) equals or exceeds $100,000 and (ii) following May 22, 2026, the Immedica Indemnified Parties shall not be entitled to recover any Loss against Aeglea or any of its Subsidiaries (other than by means of a Milestone-Setoff) with respect to an Excluded Indemnity Matter referred to in the foregoing clause (A), except to the extent an Indemnification Claim in respect of such Loss was first made prior May 22, 2026 (it being understood, for the avoidance of doubt, that nothing in this proviso shall limit or otherwise affect an Immedica Indemnified Party’s rights to recover Losses at any time with respect to an Excluded Indemnity Matter by means of a Milestone-Setoff). No claim for indemnification under this Article VII by the Immedica Indemnified Parties shall be asserted against, and the Immedica Indemnified Parties shall not be entitled to indemnification from, Aeglea or any of its Subsidiaries for a claim for indemnification under Article VII (other than in respect of the Excluded Indemnity Matters, but subject to the proviso in this Section 7.6) except to the extent such recourse is limited to Milestone Set-Offs. For the avoidance of doubt, nothing in this Section 7.6 shall limit or otherwise affect Immedica’s right to specific performance as provided in Section 9.3.
Sources of Recovery. The amount of any Losses subject to indemnification pursuant to this Agreement (i) shall not be duplicative of any other Losses for which an indemnification Claim has been paid and (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Losses (net of any costs and expenses incurred in obtaining such recovery and net of any resulting increase in premiums as a result of such Claim). The existence of a Claim by an Indemnified Party for monies from an insurer or other party shall not, however, delay any payment pursuant to the indemnification provisions contained herein and otherwise determined to be due and owing by a Seller Indemnitor. Rather, the Seller Indemnitor shall make timely payment of the full amount of Losses determined to be due and owing by it, and if the Indemnified Party later actually recovers insurance or other proceeds in respect of such Losses then the Indemnified Party shall promptly reimburse the Seller Indemnitor to the extent necessary to avoid double recovery of the same Losses. With respect to any Claim under Section 11.1(a) that is insured under any policy under the RWI Binder, the Indemnified Party shall use commercially reasonable efforts to first seek full recovery under such policy under the RWI Binder to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. Any deductible attributable to Claims made shall be indemnifiable Losses. Nothing herein shall waive any Party’s common law duty to mitigate, as and to the extent such common law duty requires, any such Claim or liability upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses that are indemnifiable under this Article XI, provided, that the failure to so mitigate shall only reduce the rights of such Party to recover for Losses to the extent of the Losses that would have been avoided by such mitigation.
Sources of Recovery. In the event of a claim by any Buyer Indemnified Party under this Article IX, the Losses shall be satisfied, subject to the satisfaction of the Basket pursuant to Section 9.08(a) (if applicable), from the Preferred Shares by adjusting the conversion ratio as set forth in Section 4.2 the Certificate of Designation (the “Conversion Ratio”) as set forth below; provided, that Buyer may elect to satisfy any such Losses by deducting a number of shares equal to the amount of such Losses from the Earn-Out Shares if there are outstanding Losses if and when the Earn-Out Shares are to be issued to Sellers. Promptly following the 24-month anniversary of the Closing Date and the settlement of any then-pending claims for Losses, Buyer shall amend the Certificate of Designation to adjust the Conversion Ratio such that the aggregate number of shares of Common Stock issuable upon the conversion of the Preferred Shares shall be equal to the product of (1) the quotient of (A) the difference between (i) $3,000,000 less (ii) that amount of Losses to be satisfied hereunder, divided by (B) $3,000,000, multiplied by (2) the number of shares of Common Stock that would have otherwise been issuable upon the conversion of the Preferred Shares prior to any adjustment of the Conversion Ratio set forth herein. For the sake of example, if 3,000,000 shares of Common Stock were otherwise issuable upon the conversion the Preferred Shares, and the Buyer Indemnified Parties successfully claimed $1,000,000 of Losses, then the Conversion Ratio shall be adjusted such that 2,000,000 shares of Common Stock would be issuable upon the conversion of the Preferred Shares, as further evidenced below: 2,000,000 shares of Common Stock = ((3,000,000-$1,000,000)/$3,000,000) * 3,000,000 Until such time that all Preferred Shares have been converted to Common Stock, in no event shall Buyer otherwise amend the Certificate of Designation except as otherwise provided in this Section 9.09 without the prior written consent of the holders of a majority of the Preferred Shares issued or issuable to Seller’s stockholders pursuant to this Agreement.
Sources of Recovery. The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
Sources of Recovery. (a) Subject to the other applicable limitations of liability set forth in this Article VIII, all amounts payable by any Seller to any of the Purchaser Indemnified Parties pursuant to Section 8.02 shall be paid first by Sellers up to the retention amount outstanding under the R&W Insurance Policy, and second from the R&W Insurance Policy (if and to the extent covered thereby), and third directly from the Seller Indemnifying Parties and each Seller Indemnifying Party shall, subject to Section 8.04, be liable for such Seller Indemnifying Party’s Georgia C-Corporation Equity Percentage of such Losses.
Sources of Recovery. The Buyer shall have the right, in its sole discretion, to withhold and set off the amount of Losses owed by the Owners or the Seller with respect to a breach of or inaccuracy of any of the representations and warranties set forth in Section 9.2(a) against: (i) any Earnout Payment due pursuant to Section 2.9, (ii) the One Year Anniversary Payment that would otherwise be payable to the Seller pursuant to Section 2.10 or (iii) any distributions due to the Seller under the Second Amended and Restated Limited Liability Company Agreement; provided, however, that solely in the case of any such Losses with respect to a breach of or inaccuracy of any of the representations and warranties set forth in Article IV, the Seller Fundamental Representations or Extended Representations pursuant to Section 9.2(a)(i), or for Losses pursuant to Sections 9.2(a)(ii) - 9.2(a)(viii), the Buyer shall have the right to recover such Losses from the Owners or the Seller by demanding payment within twenty (20) Business Days.
Sources of Recovery. Subject to the limitations set forth in this Article 8, in the event that any Losses are due and owing, as finally determined in accordance with this Agreement, to any Purchaser Indemnified Person, pursuant to the provisions of this Article 8, then such Losses shall be satisfied first by (a) reducing the Purchaser Preferred Shares then outstanding, and then by (b) the Sellers, jointly and severally (if the then-outstanding amount of the Purchaser Preferred Shares are insufficient to satisfy the full amount of such Losses).
Sources of Recovery. Notwithstanding any provision in this Agreement to the contrary, other than in the case of Fraud, the sole and exclusive remedy of each Purchaser Indemnified Party in respect of any Claim arising under Sections 9.4.1.1, 9.4.1.4 and 9.4.2.1 shall be a claim for recovery pursuant to the terms of the R&W Insurance Policy, and the Purchaser hereby waives on behalf of itself and each Purchaser Indemnified Party any and all rights and remedies against the Sellers under this Article IX; provided, however:
