CLOSING DATE (OR FOR ANY TAX PERIOD
BEGINNING BEFORE AND ENDING AFTER THE CLOSING DATE (A "STRADDLE PERIOD") TO THE
EXTENT SUCH TAXES ARE ALLOCABLE TO THE PORTION OF SUCH PERIOD BEGINNING BEFORE
AND ENDING ON THE CLOSING DATE IN ACCORDANCE WITH SECTION 6.2 HEREOF), (II) ALL
TAXES OF ANY MEMBER OF AN AFFILIATED, CONSOLIDATED, COMBINED OR UNITARY GROUP OF
WHICH COMPANY (OR ANY PREDECESSOR OF ANY OF THE FOREGOING) IS OR WAS A MEMBER ON
OR PRIOR TO THE CLOSING DATE, INCLUDING PURSUANT TO TREASURY REGULATION
§1.1502-6 OR ANY ANALOGOUS OR SIMILAR STATE, LOCAL, OR NON-U.S. LAW OR
REGULATION, AND (III) ANY AND ALL TAXES OF ANY PERSON (OTHER THAN THE COMPANY)
IMPOSED ON COMPANY AS A TRANSFEREE OR SUCCESSOR, BY CONTRACT OR PURSUANT TO ANY
LAW, RULE, OR REGULATION, WHICH TAXES RELATE TO AN EVENT OR TRANSACTION
OCCURRING BEFORE THE CLOSING; PROVIDED, HOWEVER, THAT IN THE CASE OF CLAUSES
(I), (II), AND (III) ABOVE, SELLER SHAREHOLDERS SHALL BE LIABLE ONLY TO THE
EXTENT THAT SUCH TAXES EXCEED THE AMOUNT, IF ANY, RESERVED FOR SUCH TAXES
(EXCLUDING ANY RESERVE FOR DEFERRED TAXES ESTABLISHED TO REFLECT TIMING
DIFFERENCES BETWEEN BOOK AND TAX INCOME) ON THE FACE OF THE CLOSING DATE BALANCE
SHEET (RATHER THAN IN ANY NOTES THERETO) AND TAKEN INTO ACCOUNT IN DETERMINING
THE ADJUSTMENT TO THE PURCHASE PRICE. SELLER SHAREHOLDERS SHALL REIMBURSE BUYER
FOR ANY TAXES OF THE COMPANY THAT ARE THE RESPONSIBILITY OF THE SELLER
SHAREHOLDERS PURSUANT TO THIS SECTION 6.2(A)(IV) WITHIN FIFTEEN (15) BUSINESS
DAYS AFTER PAYMENT OF SUCH TAXES BY BUYER OR COMPANY BY FIRST DEDUCTING SUCH
TAXES FROM THE HOLDBACK FUND; AND
(V)
ANY CLAIM BY ANY PERSON OR PERSONS RELATED
TO, OR ARISING OUT OF, ANY OF THE FOREGOING.
(B)
SURVIVAL DATE.
THE SELLER SHAREHOLDERS WILL
NOT BE LIABLE WITH RESPECT TO ANY CLAIM MADE PURSUANT TO SECTION 6.2(A)(I) ABOVE
FOR THE BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED
28
IN ARTICLE 2 OF THIS AGREEMENT UNLESS WRITTEN NOTICE OF A POSSIBLE CLAIM FOR
INDEMNIFICATION WITH RESPECT TO SUCH BREACH IS GIVEN BY A BUYER PARTY TO THE
COMPANY:
(I)
ON OR BEFORE THE DATE WHICH IS 90 DAYS
AFTER THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS (INCLUDING ANY
EXTENSION OR WAIVERS THEREOF) WITH RESPECT TO CLAIMS ARISING UNDER SECTION 2.15
(ERISA);
(II)
AT ANY TIME WITH RESPECT TO CLAIMS ARISING
UNDER SECTIONS 2.1 (ORGANIZATION; CORPORATE POWER), 2.2 (CAPITALIZATION), 2.4
(AUTHORIZATION; NO BREACH), AND/OR 2.8 (TAX), AS APPLICABLE (THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THE SECTIONS REFERENCED IN THIS CLAUSE (II) ARE
COLLECTIVELY REFERRED TO HEREIN AS THE "BUYER FUNDAMENTAL REPRESENTATIONS" AND,
INDIVIDUALLY, AS A "BUYER FUNDAMENTAL REPRESENTATION"); AND
(III)
ON OR BEFORE THE FIRST ANNIVERSARY OF THE
CLOSING DATE WITH RESPECT TO CLAIMS ARISING UNDER ANY OTHER SECTION OF ARTICLE 2
(SUCH DATE, WITH RESPECT TO EACH SECTION, IS REFERRED TO HEREIN AS ITS "SURVIVAL
DATE").
(C)
IT BEING UNDERSTOOD THAT, SUBJECT TO THE
LIMITATIONS SET FORTH IN SECTION 6.2(D) BELOW, SO LONG AS WRITTEN NOTICE IS
GIVEN ON OR