OCCURRED IS DUE TO THE FAILURE OF THE CONDITIONS SET FORTH IN THE
FIRST SENTENCE OF SECTIONS 8.5 OR 9.5 HEREOF (TO THE EXTENT RELATING EXCLUSIVELY
TO APPROVALS OR AUTHORIZATIONS REQUIRED FROM GOVERNMENTAL AGENCIES IN EUROPE
RELATING TO COMPETITION LAWS);
(C)
BY EITHER THE STOCKHOLDERS OR BUYER BY WRITTEN NOTICE GIVEN TO THE
OTHER, IF THERE HAS BEEN A MATERIAL BREACH BY (I) BUYER, IN THE CASE OF NOTICE
FROM THE STOCKHOLDERS' REPRESENTATIVE, OR (II) THE STOCKHOLDERS OR THE COMPANY,
IN THE CASE OF NOTICE FROM BUYER, OF ANY OF THE REPRESENTATIONS, WARRANTIES,
COVENANTS OR AGREEMENTS MADE BY SUCH PERSON IN THIS AGREEMENT.
10.2.
EFFECT ON OBLIGATIONS.
TERMINATION OF THIS AGREEMENT PRIOR TO
CLOSING PURSUANT TO SECTION 10.1 HEREOF SHALL TERMINATE ALL OBLIGATIONS OF THE
PARTIES HEREUNDER, EXCEPT FOR THEIR OBLIGATIONS UNDER SECTION 12.9 (REGARDING
PUBLIC ANNOUNCEMENTS) AND SECTION 12.6 (REGARDING
28
expenses) hereof; provided, however, that termination pursuant to
Section 10.1(c) hereof by reason of a willful breach of any representations,
warranties, covenants or agreements shall not relieve the willfully breaching
party (whether or not it is the terminating party) from any liability to the
other party hereto arising from or related to such breach.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
11.1.
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT
OR IN ANY STATEMENT OR CERTIFICATE FURNISHED OR TO BE FURNISHED PURSUANT HERETO
OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY SHALL SURVIVE UNTIL
THE EXPIRATION OF THE FIFTEEN (15) MONTH PERIOD FOLLOWING THE CLOSING DATE (THE
"SURVIVAL PERIOD") AND NO ACTION OR CLAIM FOR LOSSES (AS HEREINAFTER DEFINED)
RESULTING FROM ANY MISREPRESENTATION OR BREACH OF WARRANTY SHALL BE BROUGHT OR
MADE AFTER THE SURVIVAL PERIOD, EXCEPT THAT SUCH TIME LIMITATION SHALL NOT APPLY
TO:
(A)
CLAIMS FOR LOSSES UNDER SECTION 11.2(A)(III) HEREOF (RELATING TO
CERTAIN TAXES), WHICH MAY BE ASSERTED UNTIL DECEMBER 31, 2005;
(B)
CLAIMS FOR MISREPRESENTATIONS AND BREACH OF WARRANTIES RELATING TO
SECTIONS 3.1 AND 6.1 HEREOF (RELATING TO ORGANIZATION), SECTION 3.2 AND 6.2
HEREOF (RELATING TO AUTHORITY), SECTION 3.5 HEREOF (RELATING TO CAPITALIZATION),
AND ALL OF ARTICLE IV HEREOF (RELATING TO CERTAIN STOCKHOLDER REPRESENTATIONS),
OR CLAIMS RELATING TO BREACHES OF COVENANTS, ALL OF WHICH MAY BE ASSERTED UNTIL
THE RUNNING OF THE APPLICABLE STATUTE OF LIMITATIONS (GIVING EFFECT TO ANY
WAIVER OR EXTENSION THEREOF); AND
(C)
ANY CLAIMS WHICH HAVE BEEN ASSERTED AND WHICH ARE THE SUBJECT OF A
WRITTEN NOTICE FROM THE STOCKHOLDERS TO BUYER OR FROM BUYER TO THE STOCKHOLDERS,
AS MAY BE APPLICABLE, PRIOR TO THE EXPIRATION OF THE SURVIVAL PERIOD OR OTHER
APPLICABLE TIME RESTRICTION SET FORTH IN THIS SECTION 11.1.
11.2.
GENERAL INDEMNIFICATION.
(A)
FOLLOWING THE CLOSING, EACH
STOCKHOLDER SHALL SEVERALLY, AND NOT JOINTLY, INDEMNIFY AND DEFEND THE BUYER AND
EACH OF ITS RESPECTIVE DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS AND
REPRESENTATIVES, AND SHALL HOLD EACH OF THEM HARMLESS FROM AND AGAINST ALL
LOSSES THAT ARE INCURRED OR SUFFERED BY ANY OF THEM IN CONNECTION WITH OR
RESULTING FROM:
(I)
ANY MISREPRESENTATION OR BREACH OF ANY REPRESENTATION OR WARRANTY
(EXCLUDING THE