Source of Recovery. Except to the extent that ICS is liable for Product damage or loss under Section 10.4(c) above, the Company agrees to look for recovery in respect of any such loss or damage solely to the casualty and theft or loss insurance provided by the Company in accordance with Section 13.1 of this Agreement.
Source of Recovery. If there is determined to be any amount owing to a Buyer Indemnified Person as a result of indemnification pursuant to Section 9.3(a)(i), such amount shall first be paid and satisfied from an amount of the Indemnity Escrow Fund equal, in the aggregate, to the Deductible, in accordance with this Agreement and the Escrow Agreement and, following such time as the Retention Amount (as defined in the R&W Insurance Policy) has been met, then such Buyer Indemnified Person may recover such amount exclusively from the R&W Insurance Policy, regardless of any amount remaining in the Indemnity Escrow Fund. If there is determined to be any amount owing to a Buyer Indemnified Person as a result of indemnification pursuant to Sections 9.3(a)(ii) through (ix), such amount shall be paid and satisfied exclusively from the Indemnity Escrow Fund in accordance with this Agreement and the Escrow Agreement; provided, that Seller’s liability for Indemnifiable Damages pursuant to Section 9.3(a)(viii) shall not exceed, in the aggregate, an amount of the Indemnity Escrow Fund equal to the Special Indemnity Cap. For the avoidance of doubt, notwithstanding any other provision in this Agreement, including this Article IX, Buyer acknowledges, understands and agrees that, except as set forth in Section 9.5(c) and subject to the additional limitations set forth in this Section 9.5, (i) any and all amounts payable by Seller as a result of any claim by a Buyer Indemnified Person for indemnification pursuant to this Article IX shall be paid solely out of and to the extent of the Indemnity Escrow Fund pursuant to the Escrow Agreement, and (ii) for Indemnifiable Damages pursuant to Section 9.3(a)(i) in amounts in excess of an amount of the Indemnity Escrow Fund equal to the Deductible, the sole source of recovery of the Buyer Indemnified Persons for Indemnifiable Damages in this Agreement shall be the R&W Insurance Policy.
Source of Recovery. Notwithstanding anything contained herein to the contrary, the Indemnitees’ exclusive source of recovery for all Damages with respect to matters set forth in this Article 8 shall be first from the Escrow Amount (to the extent funds remain in the Escrow Amount and to the extent not previously distributed). To the extent such payment or reimbursement obligation of the Indemnitors may not be fully recovered from the Escrow Amount, the Indemnitees shall, subject to the limitations set forth in this Article 8, including Section 8.3(c), and the provisions of Section 8.6, be entitled to recover any remaining amounts from the Indemnitors severally and pro rata up to their pro rata share of such Damages in accordance with the Pro Rata Basis set forth opposite their respective names on the Selling Parties Allocation Schedule. Notwithstanding anything contained herein to the contrary, subject to the terms of this Article 8 (including the rights of setoff set forth in Section 8.7), with respect to a claim made by any Indemnitee arising from or as a result of or connected with an inaccuracy in or breach of a representation or warranty or a failure to perform a covenant, in either case, made by a Selling Party with respect to himself or herself in his or her individual capacity (not, for the avoidance of doubt, in such Selling Party’s capacity as an employee, officer or director of the Acquired Companies or as the Stockholders’ Agent) or in respect of Fraud committed by a Selling Party in such Selling Party’s individual capacity (not, for the avoidance of doubt, in such Selling Party’s capacity as an employee, officer or director of the Acquired Companies or as the Stockholders’ Agent), solely with respect to Damages in excess of the Escrow Amount (to the extent funds remain in the Escrow Amount and to the extent not previously distributed) or attainable via setoff rights under Section 8.7, the specific Selling Party shall be solely liable for all such Damages (if any); provided, however, for the avoidance of doubt, the Indemnitee shall not be limited in any manner with respect to access to the Escrow Amount or setoff rights under Section 8.7 by reason of this Section 8.3(d).
Source of Recovery. If the Buyer Indemnified Parties are entitled to indemnification pursuant to this Article VII, at the Buyer’s sole discretion, Sellers shall pay the amount of applicable Damages (i) reducing the number of Escrow Stock by an amount of Buyer Common Stock having a value up to the amount of applicable Damages (and such Escrow Stock shall be forfeited by Sellers), to the extent available and/or (ii) in cash by wire transfer of immediately available funds in accordance with wire instructions provided in writing by Buyer.
Source of Recovery. Subject to Section 9.2.4 and in all cases to the other limitations and procedures contained in this Article 9, all indemnification payment or reimbursements to any Buyer Indemnified Persons pursuant to this Article 9 shall first be made from the Indemnity Escrow Fund but if such Indemnity Escrow Fund is insufficient to satisfy the indemnification obligations hereunder, any remaining amount shall be made directly by the Sellers.
Source of Recovery. Seller may satisfy any losses incurred by TPN and/or ESAN under Section 9.02(a) by tendering to TPN and/or ESAN shares of ESAN Common Stock subject to the following limitations:
Source of Recovery. Purchaser and the Shareholders hereby expressly acknowledge and agree that Purchaser shall have the right, but not the obligation, to receive payment for its Damages, as finally determined in accordance herewith and in accordance with the Proportionate Shares, against the Escrow Account or any Milestone Payment that may be or become due or that has been made, and with respect to Fundamental Representations and claims for indemnification under Section 8.2(b) only, directly against the Shareholders, (i) any and all Damages owed to any Purchaser Indemnified Person pursuant to this Article VIII (for greater certainty, subject to the limitations set out therein) and (ii) any and all amounts otherwise owed to the Purchaser or its Affiliates pursuant to this Agreement. In the event that Milestone Shares have been issued to the Shareholders as part of a Milestone Payment, for purposes of satisfying any indemnification claim by resort to the Milestone Shares, each Milestone Share shall be valued at a price per share (determined as of the business day immediately prior to the cancellation of such shares as provided below) equal to either (a) if the Therachon IPO has not occurred as of the date of the Claim Notice the greater of (x) the Private FMV of Therachon Preferred Shares or (y) ||| |||||| ||| or (b) the Public FMV of Therachon Ordinary Shares if the Therachon IPO has occurred as of the date of the Claim Notice. For the purpose of illustration, if a Purchaser Indemnified Person is owed ||||||||||| ||||||||||| in Damages, the Shareholders have been issued Milestone Shares, the Therachon IPO has occurred, and the Public FMV of Therachon Ordinary Shares is |||||||| |||||||| then Therachon shall be entitled to require the Shareholders to transfer to it free of charge and thereafter cancel ||| |||||| ||| Milestone Shares held by the Shareholders (in accordance with the Proportionate Shares) as satisfaction for such Damages for the matters specified in the Claim Notice. The details of any such payment, including whether Milestone Shares shall serve as satisfaction for Damages and the amount of Milestone Shares to be cancelled, shall be specified in the Claim Notice pursuant to Section 8.4(a). Upon the resolution of a dispute, whether through arbitration, agreement, settlement or otherwise, in favor of the Purchaser Indemnified Party in which Milestone Shares are to be cancelled as satisfaction for Damages, such Milestone Shares shall either (i) be automatically cance...
Source of Recovery. (a) When a claim asserted against the Sellers under Section 7.2(a) has been Finally Resolved:
Source of Recovery. The Merck Indemnified Parties’ sources for payment of indemnification obligations hereunder shall be satisfied (a) first, from seeking recovery from the Escrow Amount pursuant to the Escrow Agreement, (b) second, if and to the extent a Milestone Payment or Royalty Payment is then due and payable hereunder, by set off pursuant to Section 8.8 against any such Milestone Payment or Royalty Payment that is then due and payable, or (c) third, by seeking recovery directly from KalVista or Parent. KalVista shall provide the Escrow Agent with any instructions required by the Escrow Agreement in order for the Escrow Agent to release [***]Confidential Treatment Requested. any portion of the Escrow Amount to Merck in satisfaction of any amounts owed to any Merck Indemnified Party under this Article VIII.
Source of Recovery. Subject to any limitations set forth in this Section 10, any indemnifiable Damages sought by a Purchaser Indemnified Person shall be satisfied (i) first, from the Indemnity Escrow Account, and (ii) second, from the Shareholders severally and not jointly based on each Shareholder’s Pro Rata Portion of such Damages. 10.2
