OR (B) IF ANY OF THE CONDITIONS PRECEDENT IN
SECTION 6.3 IS NOT FULFILLED OR WAIVED AT OR PRIOR TO CLOSING; AND, IN SUCH
EVENT, EACH PARTY SHALL BE RELEASED FROM ALL OBLIGATIONS UNDER THIS AGREEMENT,
SAVE AND EXCEPT FOR HIS OR ITS OBLIGATIONS UNDER SECTION 5.2(3), SECTION 12.3,
SECTION 12.4 AND SECTION 12.7, WHICH SHALL SURVIVE.
(2)
THIS AGREEMENT MAY ALSO BE TERMINATED IN
THE CIRCUMSTANCES AND UPON THE TERMS SET OUT IN SECTION 7.3.
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ARTICLE 9
INDEMNIFICATION
SECTION 9.1
INDEMNIFICATION IN FAVOUR OF THE
PURCHASER.
Subject to Section 9.3, Section 9.5, and Section 9.6, the Vendors, on a joint
and several basis, shall indemnify and save harmless each of the Purchaser and
the Corporations, and their respective shareholders, directors, officers,
employees, agents and representatives, other than the Vendors (collectively, the
"Purchaser's Indemnified Persons") against and from any loss, liability, claim,
damage (including incidental and consequential damage), taxes or expense
(whether or not involving a third-party claim), including legal expenses
(collectively, "Damages") suffered by, imposed upon or asserted against any of
the Purchaser's Indemnified Persons as a result of, in respect of, connected
with, or arising out of, under, or pursuant to:
(A)
ANY FAILURE OF ANY OF THE VENDORS TO
PERFORM OR FULFIL ANY COVENANT OF THE VENDORS IN THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT;
(B)
ANY BREACH OR INACCURACY OF ANY
REPRESENTATION OR WARRANTY BY THE VENDORS IN THIS AGREEMENT OR IN ANY ANCILLARY
AGREEMENT;
(C)
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
IN SECTIONS 9.1(D), 9.1(E), 9.1(F), 9.1(G), 9.1(H) AND 9.1(I), ANY FACTS,
CIRCUMSTANCES, EVENTS, CONDITIONS OR OCCURRENCES IN EXISTENCE ON OR PRIOR TO THE
CLOSING DATE, RELATING DIRECTLY OR INDIRECTLY TO EITHER OF THE CORPORATIONS, THE
BUSINESS OR THE ASSETS, EVEN THOUGH SUCH DAMAGES MAY BE SUFFERED AFTER THE
CLOSING DATE, EXCEPT TO THE EXTENT THAT THE LIABILITY IN RESPECT THEREOF (I) IS
REFLECTED ON THE MGA GROUP FINANCIAL STATEMENTS, (II) HAS BEEN INCURRED BY THE
CORPORATIONS IN THE ORDINARY COURSE SINCE DECEMBER 31, 2002, OR (III) IS
SPECIFICALLY AND EXPRESSLY DISCLOSED (X) IN THIS AGREEMENT, (Y) IN ANY OF THE
MATERIAL CONTRACTS, OR (Z) IN ANY OTHER CONTRACTS WHICH, BY THE TERMS OF THIS
AGREEMENT, ARE NOT REQUIRED TO BE DISCLOSED;
(D)
ANY DAMAGES RESULTING TO THE PURCHASER OR
EITHER OF THE CORPORATIONS ARISING IN ANY WAY (I)
FROM ADDING MPCO, GSCO AND
AJCO AS VENDORS HERETO OR THE RELATED STEPS BY CERTAIN OF THE INDIVIDUAL VENDORS
TO TRANSFER CERTAIN OF THE PURCHASED SHARES OWNED BY THEM TO THE CORPORATE
VENDORS (II) THE STEPS RELATED TO ANY CORPORATE REORGANIZATION OF MGA
CONNECTORS, OR (III) THE STEPS RELATED TO THE INCREASE IN PAID UP CAPITAL OF
CERTAIN OF THE PURCHASED SHARES;
42
(E)
ANY DAMAGES RESULTING TO THE PURCHASER OR
EITHER OF THE CORPORATIONS ARISING IN ANY WAY FROM THE STEPS CONTEMPLATED TO BE
TAKEN PURSUANT TO SECTION 5.10;
(F)
ANY DAMAGES RESULTING TO THE PURCHASER OR
EITHER OF THE CORPORATIONS ARISING FROM WARRANTY OR SIMILAR PRODUCTS LIABILITY
CLAIMS RELATING TO ANY PERIOD UP