Common use of Source of Recovery Clause in Contracts

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 cancelled on the books and share ledger of Therachon without any further action by any party if the Therachon IPO has not occurred or (ii) Therachon shall provide instructions to its transfer agent to immediately cancel such shares on its books and share ledger if the Therachon IPO has occurred.

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 Additional 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 Additional Milestone Shares have been issued to the Shareholders as part of a the Third Milestone Payment, for purposes of satisfying any indemnification claim by resort to the Additional Milestone Shares, each Additional 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 New HoldCo IPO has not occurred as of the date of the Claim Notice such payment the greater of (x) the Private FMV of Therachon Preferred Shares or (y) ||| |||||| ||| the Dividend FMV; or (b) the Public FMV of Therachon Ordinary Shares if the Therachon New HoldCo IPO has occurred as of such payment, the date of the Claim NoticePublic FMV. For the purpose of illustration, if a Purchaser Indemnified Person is owed ||||||||||| ||||||||||| |||||||| |||||||| in Damages, the Shareholders have been issued Additional Milestone Shares, the Therachon New HoldCo IPO has occurred, and the Public FMV of Therachon New HoldCo Ordinary Shares is |||||||| |||||||| USD ||| |||||| , then Therachon New HoldCo shall be entitled to require the Shareholders to transfer to it free of charge and thereafter cancel ||| |||||| ||| 5,000 Additional 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 Additional Milestone Shares shall serve as satisfaction for Damages and the amount of Additional 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 Additional Milestone Shares are to be cancelled as satisfaction for Damages, such Additional Milestone Shares shall either (i) if the New HoldCo IPO has not occurred, be automatically cancelled on the books and share ledger of Therachon New HoldCo without any further action by any party if the Therachon IPO has not occurred or (ii) Therachon if the New HoldCo IPO has occurred, New HoldCo shall provide instructions to its transfer agent to immediately cancel such shares on its books and share ledger if ledger. 1.4 Section 2.6(f) of the Therachon IPO has occurred.Purchase Agreement is hereby amended and restated in its entirety as follows: