TO THE
HOLDBACK INDEMNITY CAP.
CLAIMS FOR INDEMNIFICATION PURSUANT TO ANY OTHER
PROVISION OF SECTION 14.2(A) ARE NOT SUBJECT TO THE MONETARY LIMITATIONS SET
FORTH IN THIS SECTION 14.2(B).
14.3
TIME FOR CLAIMS.
ALL REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT WILL SURVIVE THE CLOSING FOR THE TIME PERIOD SET FORTH BELOW;
PROVIDED, HOWEVER, THAT NO CLAIM MAY BE MADE OR SUIT INSTITUTED SEEKING
INDEMNIFICATION PURSUANT TO SECTION 14.1(A)(I) OR 14.2(A)(I) OF THIS AGREEMENT
FOR ANY BREACH OF, OR INACCURACY IN, ANY REPRESENTATION OR WARRANTY UNLESS THE
CLAIMING PARTY PROVIDES NOTICE AS SPECIFIED IN SECTION 16.1 WITHIN THE FOLLOWING
TIME PERIODS:
(A)
AT ANY TIME PRIOR TO THE CONCLUSION OF THE APPLICABLE STATUTE OF
LIMITATIONS, IN THE CASE OF ANY BREACH OF, OR INACCURACY IN, THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN THE FOLLOWING SECTIONS: 6.2(A), 6.7(A), 6.8(B),
6.14, 6.15(A), 7.2 OR 7.5;
(B)
AT ANY TIME PRIOR TO THE CONCLUSION OF THE DAY THAT IS 18 MONTHS AFTER
THE CLOSING DATE, IN THE CASE OF ANY BREACH OF, OR INACCURACY IN, ANY OTHER
REPRESENTATION AND WARRANTY IN THIS AGREEMENT; AND
(C)
AT ANY TIME, IN THE CASE OF ANY CLAIM OR SUIT BASED UPON FRAUD OR
INTENTIONAL MISREPRESENTATION.
Claims for indemnification not specified with a time limitation in this Section
14.3 are not subject to the limitations set forth in this Section 14.3 and will
be governed by the applicable statute of limitations.
For avoidance of doubt,
claims will be deemed to have been made within the survival period if a
reasonably complete description of the claim based upon the facts available at
the time is presented by the party seeking indemnification to the Indemnifying
Party within the specified time period in this Agreement.
14.4
PROCEDURE FOR THIRD PARTY CLAIMS.
(A)
NOTICE OF CLAIM.
IF ANY THIRD PARTY NOTIFIES AN INDEMNITEE WITH
RESPECT TO ANY MATTER (A "THIRD PARTY CLAIM") WHICH IS EXPECTED TO GIVE RISE TO
A CLAIM FOR INDEMNIFICATION AGAINST AN INDEMNIFYING PARTY UNDER THIS ARTICLE 14,
THEN THE INDEMNITEE WILL PROMPTLY GIVE WRITTEN NOTICE TO THE INDEMNIFYING PARTY;
PROVIDED, HOWEVER, THAT NO DELAY ON THE PART OF THE INDEMNITEE IN NOTIFYING THE
INDEMNIFYING PARTY WILL RELIEVE THE INDEMNIFYING PARTY FROM ANY OBLIGATION UNDER
THIS ARTICLE 14, EXCEPT TO THE EXTENT SUCH DELAY ACTUALLY PREJUDICES THE
INDEMNIFYING PARTY.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
42
(B)
ASSUMPTION OF DEFENSE, ETC.
THE INDEMNIFYING PARTY WILL BE ENTITLED TO
PARTICIPATE IN THE DEFENSE OF ANY THIRD PARTY CLAIM THAT IS THE SUBJECT OF A
NOTICE GIVEN BY THE INDEMNITEE PURSUANT TO SECTION 14.4(A).
IN ADDITION, THE
INDEMNIFYING PARTY WILL HAVE THE RIGHT TO ASSUME THE DEFENSE OF THE INDEMNITEE
AGAINST THE THIRD PARTY CLAIM WITH COUNSEL OF ITS CHOICE REASONABLY SATISFACTORY
TO THE INDEMNITEE SO LONG AS: (I) THE INDEMNIFYING PARTY GIVES WRITTEN NOTICE TO
THE INDEMNITEE WITHIN