INDEMNIFIED PERSON WERE
SUBJECT TO TAX AT THE HIGHEST MARGINAL TAX RATES (FOR BOTH FEDERAL AND STATE, AS
DETERMINED ON A COMBINED BASIS) APPLICABLE TO SUCH INDEMNIFIED PERSON AND
(II) TO TREAT ANY INDEMNIFICATION PAYMENTS MADE TO THE PURCHASER PURSUANT TO
THIS AGREEMENT AS AN ADJUSTMENT TO THE FINAL PURCHASE PRICE, UNLESS A "FINAL
DETERMINATION" WITH RESPECT TO THE INDEMNIFIED PARTY OR ANY OF ITS AFFILIATES
CAUSES ANY SUCH PAYMENT NOT TO BE TREATED AS AN ADJUSTMENT TO THE PURCHASE
PRICE.
FOR PURPOSES OF THIS AGREEMENT "FINAL DETERMINATION" MEANS (I) WITH
RESPECT TO FEDERAL INCOME TAXES, A "DETERMINATION" AS DEFINED IN
SECTION 1313(A) OF THE CODE OR EXECUTION OF AN INTERNAL IRS FORM 870-AD AND,
(II) WITH RESPECT TO TAXES OTHER THAN FEDERAL INCOME TAXES, ANY FINAL
DETERMINATION OF LIABILITY IN RESPECT OF A TAX THAT, UNDER APPLICABLE LAW, IS
NOT SUBJECT TO FURTHER APPEAL, REVIEW OR MODIFICATION THROUGH PROCEEDINGS OR
OTHERWISE (INCLUDING THE EXPIRATION OF A STATUTE OF LIMITATIONS OR A PERIOD FOR
THE FILING OF CLAIMS FOR REFUNDS, AMENDED RETURNS OR APPEALS FROM ADVERSE
DETERMINATIONS).
(C)
IN CONNECTION WITH AN INDEMNIFIED PERSON'S RIGHTS UNDER THIS
ARTICLE VI, AN INDEMNIFIED PERSON MAY SEEK ONLY SEEK ACTUAL DAMAGES AND MAY NOT
SEEK ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PUNITIVE, CONSEQUENTIAL
(INCLUDING LOSS OF ANTICIPATED PROFITS) AND INCIDENTAL DAMAGES, AS TO ANY MATTER
UNDER, RELATING TO OR ARISING OUT OF THE TRANSACTION DOCUMENTS OR THE
TRANSACTIONS.
(D)
NOTWITHSTANDING SECTION 6.1, THE PURCHASER SHALL NOT BE ENTITLED
TO INDEMNIFICATION UNDER THIS ARTICLE VI WITH RESPECT TO ANY LOSS THAT IS
REFLECTED AS A LIABILITY ON THE LATEST BALANCE SHEET OR REFLECTED IN THE
FOOTNOTES TO THE FINANCIAL STATEMENTS.
(E)
NO PERSON SHALL BE ENTITLED TO INDEMNIFICATION UNDER THIS
ARTICLE VI WITH RESPECT TO ANY LOSS THAT IS ATTRIBUTABLE TO ANY ACTION TAKEN OR
OMITTED TO BE TAKEN BY SUCH PERSON OR ANY OF ITS AFFILIATES.
THE INDEMNIFIED
PERSON SHALL COOPERATE WITH EACH INDEMNIFYING PERSON WITH RESPECT TO RESOLVING
ANY LIABILITIES WITH RESPECT TO WHICH SUCH PERSON IS OBLIGATED TO INDEMNIFY THE
OTHER PERSON, INCLUDING BY MAKING COMMERCIALLY REASONABLE EFFORTS TO MITIGATE OR
RESOLVE ANY SUCH LIABILITIES.
IN THE EVENT THAT THE INDEMNIFIED PERSON SHALL
FAIL TO COOPERATE AND MAKE SUCH EFFORTS TO MITIGATE OR RESOLVE ANY SUCH
LIABILITIES, THEN NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED
HEREIN, EACH INDEMNIFYING PERSON SHALL NOT BE REQUIRED TO INDEMNIFY ANY PERSON
FOR ANY LOSS THAT COULD REASONABLY BE EXPECTED TO HAVE BEEN AVOIDED IF THE
INDEMNIFIED PERSON HAD MADE SUCH EFFORTS.
(F)
THE INDEMNIFICATION PROVISIONS CONTAINED IN THIS ARTICLE VI
(INCLUDING THE PROVISIONS OF SECTION 6.1) ARE INTENDED TO PROVIDE THE SOLE AND
EXCLUSIVE REMEDY FOLLOWING THE CLOSING AS TO ALL LOSSES EITHER PARTY MAY INCUR
ARISING FROM OR RELATING TO THE TRANSACTION DOCUMENTS (OR THE REPRESENTATIONS,
WARRANTIES OR COVENANTS CONTAINED THEREIN) OR THE TRANSACTIONS, AND EACH PARTY
HEREBY WAIVES, TO THE FULL EXTENT THEY MAY DO SO, ANY OTHER RIGHTS OR REMEDIES
THAT MAY ARISE UNDER ANY APPLICABLE STATUTE, RULE OR