PROPRIETARY INFORMATION.
THEREFORE, EACH SHAREHOLDER EXPRESSLY COVENANTS
NOT TO COMMIT (OR PERMIT ANOTHER PERSON TO COMMIT) A CIRCUMVENTION EVENT IN ANY
PRESENT, PENDING OR FUTURE TRANSACTION.
(D)
THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT AND SUBORDINATE TO
THE TERMS AND CONDITIONS OF THE TOLMAN NON-COMPETE AGREEMENT AND THE JONES
NON-COMPETE AGREEMENT.
TO THE EXTENT THAT THERE IS ANY CONFLICT BETWEEN THE
TERMS OF THIS SECTION AND THE TERMS OF SUCH AGREEMENTS, THE TOLMAN NON-COMPETE
AGREEMENT OR THE JONES NON-COMPETE AGREEMENT (AS APPLICABLE) SHALL CONTROL.
3.7.
OPERATION OF THE BUSINESS.
BUYER SHALL SUPPORT THE BUSINESS AFTER
THE CLOSING DATE AS IT DOES EACH OF ITS OTHER DIVISIONS.
BUYER SHALL MAKE
AVAILABLE SUFFICIENT CAPITAL INVESTMENT TO MEET THE DEMANDS OF THE EARN-OUT
PROGRAM, SUBJECT TO INVESTMENT RETURN, MARKET CONDITIONS, AND OTHER REQUIREMENTS
THAT BUYER USES WITH EACH OF ITS OTHER DIVISIONS.
IN THE EVENT THAT CAPITAL
INVESTMENT IS CURTAILED TO AN AMOUNT INSUFFICIENT TO SUPPORT THE EARN-OUT
PROGRAM AS REASONABLY DETERMINED BY BUYER, THE EARN-OUT TARGETS, THRESHOLD, AND
PAYOUT FACTORS (AS SET FORTH ON SCHEDULE 1.1(E) HERETO) WILL BE ADJUSTED TO
ALIGN WITH THE ADJUSTED CAPITAL INVESTMENT.
THE SHAREHOLDERS ACKNOWLEDGE AND
ACCEPT THAT BUYER MAY MERGE THE COMPANY WITH AND INTO BUYER, MAY RE-NAME THE
BUSINESS, OR ANY PART OR PRODUCT THEREOF, AND MAY GENERALLY CHANGE ANY PART OF
THE BRANDING OR MARKETING STRATEGY OR ALTOGETHER RE-BRAND OR RE-MARKET THE
BUSINESS, OR ANY PART OR PRODUCT THEREOF, IN EACH CASE AT SUCH TIME AND IN SUCH
MANNER AND TO SUCH EXTENT (AND WITH OR WITHOUT NOTICE TO ANY PARTY) AS BUYER MAY
DETERMINE IN ITS SOLE DISCRETION.
THE SHAREHOLDERS FURTHER ACKNOWLEDGE AND
AGREE THAT THE BUSINESS SHALL BE MANAGED IN COMPLIANCE WITH THE POLICIES AND
PRACTICES OF THE BUYER AND ITS AFFILIATES AND AS ANY OTHER DIVISION OF BUYER AND
ITS AFFILIATES.
ARTICLE 4
INDEMNIFICATION
4.1.
INDEMNIFICATION BY THE SHAREHOLDERS.
IN ADDITION TO ANY OTHER
REMEDIES AVAILABLE TO BUYER UNDER THIS AGREEMENT, OR AT LAW OR IN EQUITY, THE
SHAREHOLDERS HEREBY INDEMNIFY BUYER, THE COMPANY, THEIR AFFILIATES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
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STOCKHOLDERS (COLLECTIVELY, THE "BUYER INDEMNIFIED PARTIES") AGAINST AND WITH
RESPECT TO ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, EXPENSES, OBLIGATIONS,
LIABILITIES, RECOVERIES, SUITS, CAUSES OF ACTION AND DEFICIENCIES, INCLUDING
INTEREST, PENALTIES AND REASONABLE FEES AND EXPENSES OF ATTORNEYS, CONSULTANTS
AND EXPERTS (COLLECTIVELY, THE "DAMAGES") THAT THE BUYER INDEMNIFIED PARTIES
SHALL INCUR OR SUFFER, WHICH ARISE, RESULT FROM OR RELATE TO ANY BREACH BY ANY
OF THE SHAREHOLDERS (OR THE FAILURE OF ANY OF THE SHAREHOLDERS TO PERFORM) THEIR
RESPECTIVE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS IN THIS
AGREEMENT OR IN ANY SCHEDULE, CERTIFICATE, EXHIBIT OR OTHER INSTRUMENT DELIVERED
TO BUYER BY ANY OF THE SHAREHOLDERS UNDER THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, A CIRCUMVENTION EVENT).
THE LIABILITY OF THE SHAREHOLDERS UNDER
THIS SECTION IS JOINT AND SEVERAL.
IN ADDITION, BUYER SHALL BE ENTITLED TO
DAMAGES FROM THE SHAREHOLDERS EQUAL TO THE AMOUNT BY WHICH ANY NON-COLLECTIBLE
ACCOUNTS RECEIVABLE EXCEED THE COMPANY'S RESERVES RELATING TO SUCH ACCOUNTS