INDEMNIFIED
PARTIES") AS PROVIDED IN THE COMPANY'S ARTICLES OF INCORPORATION OR BYLAWS (OR
BOTH) OR SIMILAR CONSTITUTIVE DOCUMENTS OR PURSUANT TO OTHER INSTRUMENTS OR
AGREEMENTS, INCLUDING INSURANCES, IN EFFECT ON THE DATE HEREOF, TO SURVIVE THE
CLOSING AND TO CONTINUE IN FULL FORCE AND EFFECT FOLLOWING THE CLOSING DATE
UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS.
(B)
SUBJECT TO THE TERMS SET FORTH HEREIN, PARENT WILL, AS AN ABSOLUTE
AND UNCONDITIONAL GUARANTOR OF PERFORMANCE AND PAYMENT, AND WILL CAUSE THE
COMPANY TO, INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW (AND WILL ALSO ADVANCE EXPENSES AS INCURRED BY A COMPANY
INDEMNIFIED PARTY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW), EACH
COMPANY INDEMNIFIED PARTY AGAINST ANY COSTS OR EXPENSES (INCLUDING REASONABLE
LEGAL FEES AND EXPENSES) JUDGMENTS, FINES, LOSSES, CLAIMS, DAMAGES, LIABILITIES
AND AMOUNTS PAID IN SETTLEMENT IN CONNECTION WITH ANY CLAIM, ACTION, SUIT,
PROCEEDING OR INVESTIGATION, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE OR
INVESTIGATIVE, ARISING OUT OF OR PERTAINING TO ANY ACTION, ALLEGED ACTION,
OMISSION OR ALLEGED OMISSION BY SUCH COMPANY INDEMNIFIED PARTY ON OR PRIOR TO
THE CLOSING DATE (INCLUDING ANY CLAIMS, ACTION, SUITS, PROCEEDINGS AND
INVESTIGATIONS WHICH ARISE OUT OF OR RELATE TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT) UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS;
PROVIDED THAT, IN THE EVENT ANY CLAIM, ACTION, SUIT, PROCEEDING OR INVESTIGATION
IS ASSERTED OR MADE OR OTHERWISE BECOMES KNOWN TO PARENT OR THE COMPANY OR IS
COMMENCED PRIOR TO THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS, ALL
RIGHTS TO INDEMNIFICATION IN RESPECT OF ANY SUCH CLAIM, ACTION, SUIT, PROCEEDING
OR INVESTIGATION WILL CONTINUE UNTIL THE FINAL DISPOSITION THEREOF.
(C)
THE COVENANTS CONTAINED IN THIS SECTION 5.12 WILL SURVIVE THE
CLOSING DATE UNTIL FULLY DISCHARGED AND ARE INTENDED TO BENEFIT THE COMPANY
SHAREHOLDERS AND EACH OF THE COMPANY INDEMNIFIED PARTIES.
ARTICLE 6
CONDITIONS TO THE ACQUISITION
6.1
Conditions to Obligations of Each Party to Effect
the Merger.
The respective obligations of each party to this Agreement to
effect the transactions contemplated hereby will be subject to the satisfaction
at or prior to the Closing of the following conditions:
(A)
NO INJUNCTIONS OR REGULATORY RESTRAINTS; ILLEGALITY.
NO TEMPORARY
RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION OR OTHER ORDER ISSUED BY
ANY COURT OF COMPETENT JURISDICTION OR GOVERNMENTAL OR REGULATORY AUTHORITY OR
OTHER LEGAL OR REGULATORY RESTRAINT OR PROHIBITION PREVENTING THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE IN EFFECT; NOR SHALL THERE BE
ANY ACTION TAKEN, OR ANY LAW OR ORDER ENACTED, ENTERED, ENFORCED OR DEEMED
APPLICABLE TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THE OTHER TRANSACTIONS
CONTEMPLATED BY THE TERMS OF THE AGREEMENT THAT WOULD PROHIBIT THE CONSUMMATION
OF THE TRANSACTIONS
38
CONTEMPLATED HEREBY OR WHICH WOULD PERMIT CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY ONLY IF CERTAIN DIVESTITURES WERE MADE OR IF PARENT AND
MERGER SUB WERE TO AGREE TO LIMITATIONS ON ITS BUSINESS ACTIVITIES OR
OPERATIONS.
(B)
EXISTENCE OF BOARD APPROVAL.
EACH PARTY WILL PROVIDE TO THE OTHER
PARTY CERTIFIED COPIES OF BOARD MINUTES