RESPECT OF ANY CLAIM FOR INDEMNIFICATION PURSUANT TO
SECTION 10.02(A) MADE HEREBY UNTIL THE AGGREGATE AMOUNT OF LOSSES FOR WHICH ALL
C&T INDEMNIFIED PARTIES OTHERWISE WOULD BE ENTITLED TO INDEMNIFICATION UNDER
THIS ARTICLE X EXCEEDS $50,000 (THE "BASKET"), IN WHICH CASE BARRY AND ROBINSON
SHALL BE LIABLE TO THE C&T INDEMNIFIED
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PARTIES HEREBY FOR THE AGGREGATE AMOUNT OF ALL SUCH LOSSES UP TO THE CAP
DESCRIBED BELOW (AND NOT JUST THE LOSSES IN EXCESS OF THE BASKET).
(B)
EXCEPT AS SPECIFIED IN SECTION 10.04(C), BARRY AND/OR ROBINSON, AS
THE CASE MAY BE, SHALL PAY ANY INDEMNIFICATION LIABILITY TO THE C&T INDEMNIFIED
PARTIES, OR ANY OF THEM, UNDER THIS ARTICLE X SOLELY BY MEANS OF THE SURVIVING
CORPORATION'S OFFSET, AGAINST AMOUNTS OTHERWISE PAYABLE BY THE SURVIVING
CORPORATION TO BARRY AND/OR ROBINSON, AS THE CASE MAY BE, FROM AND AFTER THE
EFFECTIVE TIME WITHIN THIRTY (30) DAYS OF THE CLOSING AGAINST THE CHANGE OF
CONTROL SEVERANCE PAYMENT DUE TO BARRY AND/OR ROBINSON, AS THE CASE MAY BE, AND
THEREAFTER UNTIL THE EARLIER OF: (I) THREE (3) YEARS AFTER THE DATE HEREOF OR
(II) THE DEATH OF BARRY AND/OR ROBINSON, AS THE CASE MAY BE, AGAINST THE CASH
VALUE OF THE KEYMAN POLICIES FOR BARRY AND/OR ROBINSON, AS THE CASE MAY BE. SUCH
TIME DESCRIBED IN (I) AND (II) OF THE PRECEDING SENTENCE SHALL BE REFERRED TO AS
THE "INDEMNIFICATION TERMINATION DATE" WITH RESPECT TO TIE SPECIFIC SOURCE OF
PAYMENT. AFTER THE INDEMNIFICATION TERMINATION DATE REFERENCED IN (II), THE
INDEMNIFICATION OBLIGATIONS OF BARRY AND/OR ROBINSON, AS THE CASE MAY BE,
HEREUNDER SHALL CEASE.
(C)
THE INDEMNIFICATION OBLIGATIONS OF BARRY AND ROBINSON UNDER THIS
SECTION 10.04 SHALL ONLY APPLY IN THE EVENT THAT THE LOSSES TO BE INDEMNIFIED
ARISE OR RESULT DIRECTLY FROM THE FRAUDULENT MISCONDUCT OR FRAUDULENT
MISREPRESENTATION OF BARRY AND/OR ROBINSON, AS THE CASE MAY BE, AS DETERMINED BY
A COURT OF COMPETENT JURISDICTION, WHICH DECISION IS NOT SUBJECT TO APPEAL. FOR
PURPOSES OF THIS SECTION 10.04(C), THE CONCEPT OF "FRAUD" OR "FRAUDULENT" IS
IDENTICAL TO THE CONCEPT OF "EMPLOYMENT OF MANIPULATIVE AND DECEPTIVE DEVICES"
AS OUTLINED IN RULE 10B-5 OF THE EXCHANGE ACT AND THE "FEDERAL COMMON LAW"
DEVELOPED BY THE FEDERAL COURTS PURSUANT THERETO. ADDITIONALLY, FOR PURPOSES OF
PRODUCING THE "DECISION" REFERENCED ABOVE BY THE INDEMNIFICATION TERMINATION
DATE, ALL PARTIES AGREE TO EXPEDITE ANY RELATED LITIGATION, INCLUDING WITHOUT
LIMITATION TO: (I) WAIVE THEIR RIGHT(S) TO JURY TRIAL; (II) LIMIT DISCOVERY TO
THAT ACTUALLY OBTAINED WITHIN SIX (6) MONTHS OF FILING OF THE COMPLAINT
INSTITUTING THE LITIGATION; AND (III) REFRAIN FROM REQUESTING ANY EXTENSIONS OR
CONTINUANCES.
10.05.
Remedies. Prior to the Closing, the parties shall have available to
them all remedies available under Law, including specific performance and other
equitable remedies; it being understood that if this Agreement is terminated
prior to the Closing, the sole remedies of the parties hereto shall be as set
forth in Article IX. After the Closing, the sole and exclusive remedies of the
parties hereto with respect to this Agreement shall be as