AGGREGATE INCURRED AS
PART OF A SERIES OF RELATED LOSSES (THE "MATERIALITY THRESHOLD") SHALL BE
INCLUDED IN DETERMINING WHETHER THE BASKET HAS BEEN SATISFIED.
LOSSES BELOW
THE MATERIALITY THRESHOLD SHALL IN NO EVENT GIVE RISE TO ANY INDEMNITY RIGHTS IN
FAVOR OF PARENT, EVEN IF THE BASKET IS OTHERWISE SATISFIED.
(C)
AGGREGATE AMOUNT LIMITATION.
THE AGGREGATE LIABILITY FOR LOSSES
PURSUANT TO SECTION 7.1 SHALL NOT IN ANY EVENT EXCEED THE ESCROW CASH (THE
"LIABILITY CAP") AND PARENT SHALL HAVE NO CLAIM AGAINST ANY OF THE COMPANY
STOCKHOLDERS OTHER THAN FOR SOLE RECOURSE TO THE ESCROW CASH (INCLUDING ANY
EARNINGS THEREON); PROVIDED THAT SUCH LIMITATIONS SHALL NOT APPLY (I) IN THE
CASE OF CLAIMS ARISING FROM FRAUD, WILLFUL MISREPRESENTATION OR WILLFUL
MISCONDUCT, OR (II) TO ANY EXCESS THIRD PARTY EXPENSES; PROVIDED FURTHER THAT IN
NO EVENT SHALL ANY SUCH CLAIM AGAINST ANY FORMER STOCKHOLDER EXCEED THE
AGGREGATE PER SHARE MERGER CONSIDERATION RECEIVED BY SUCH FORMER STOCKHOLDER.
7.5
EXCLUSIVE REMEDY.
PARENT HEREBY ACKNOWLEDGES AND AGREES THAT,
FROM AND AFTER THE CLOSING, ITS SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY
AND ALL CLAIMS, WHETHER DIRECT, THIRD PARTY OR OTHERWISE, FOR MONEY DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE PURSUANT AND SUBJECT TO
THE REQUIREMENTS OF THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE
VII.
53
7.6
DAMAGES; ADJUSTMENT TO MERGER CONSIDERATION.
AMOUNTS PAID FOR
INDEMNIFICATION UNDER ARTICLE VII SHALL REDUCE THE TOTAL MERGER CONSIDERATION
RECEIVED BY THE COMPANY'S STOCKHOLDERS.
7.7
REPRESENTATIVE CAPACITIES; APPLICATION OF ESCROW CASH.
(A)
THE PARTIES ACKNOWLEDGE THAT THE REPRESENTATIVE'S OBLIGATIONS
UNDER THIS ARTICLE VII ARE SOLELY AS A REPRESENTATIVE OF THE FORMER STOCKHOLDERS
IN THE MANNER SET FORTH IN THE ESCROW AGREEMENT WITH RESPECT TO THE OBLIGATIONS
TO INDEMNIFY PARENT UNDER THIS ARTICLE VII AND THAT THE REPRESENTATIVE SHALL
HAVE NO PERSONAL RESPONSIBILITY FOR ANY EXPENSES INCURRED BY THE REPRESENTATIVE
IN SUCH CAPACITY AND THAT ALL PAYMENTS TO PARENT AS A RESULT OF SUCH
INDEMNIFICATION OBLIGATIONS SHALL BE MADE SOLELY FROM, AND TO THE EXTENT OF, THE
ESCROW CASH.
THE PARTIES FURTHER ACKNOWLEDGE THAT ALL ACTIONS TO BE TAKEN BY
PARENT PURSUANT TO THIS ARTICLE VII SHALL BE TAKEN ON ITS BEHALF BY THE
COMMITTEE IN ACCORDANCE WITH THE PROVISIONS OF THE ESCROW AGREEMENT.
THE ESCROW
AGENT, PURSUANT TO THE ESCROW AGREEMENT AFTER THE CLOSING, MAY APPLY ALL OR A
PORTION OF THE ESCROW CASH TO SATISFY ANY CLAIM FOR INDEMNIFICATION PURSUANT TO
THIS ARTICLE VII.
THE ESCROW AGENT WILL HOLD THE REMAINING PORTION OF THE
ESCROW CASH UNTIL FINAL RESOLUTION OF ALL CLAIMS FOR INDEMNIFICATION OR DISPUTES
RELATING THERETO.
(B)
ESCROW AGENT SHALL RELEASE THE ESCROW CASH, OR THE REMAINING
BALANCE IN THE MANNER SET FORTH IN THE ESCROW AGREEMENT, TO THE FORMER
STOCKHOLDERS ON A PRO-RATA BASIS, SUBJECT TO ANY AMOUNTS RESERVED (IN THE MANNER
PROVIDED FOR IN THE FOLLOWING SENTENCE) TO ADDRESS UNRESOLVED CLAIMS FOR
INDEMNIFICATION SUBMITTED PRIOR TO THE EXPIRATION OF THE SURVIVAL PERIOD. TO THE
EXTENT THAT CLAIMS FOR INDEMNIFICATION SUBMITTED PRIOR TO THE EXPIRATION OF THE
SURVIVAL