OR HEREINAFTER IN EFFECT), CLAIMS FOR BREACH OF CONTRACT, BREACH OF
REPRESENTATIONS AND WARRANTIES, NEGLIGENT MISREPRESENTATION AND ALL OTHER CLAIMS
FOR BREACH OF DUTY.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.12(A), IF
AND TO THE EXTENT THAT, DURING THE INDEMNITY AND EARNOUT ESCROW PERIOD, IT IS
DETERMINED THAT THE PURCHASER IS ENTITLED TO A PAYMENT UNDER THIS ARTICLE VII
AND, SOLELY AS A RESULT OF PAYMENT FROM THE INDEMNITY AND EARNOUT ESCROW FUNDS
EITHER WITH RESPECT TO A BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN SECTION 2.3 OR PURSUANT TO SECTION 1.6, THERE ARE NOT THEN SUFFICIENT
INDEMNITY AND EARNOUT ESCROW FUNDS TO SATISFY THE FULL AMOUNT OF SUCH PAYMENT,
THE SELLERS SHALL EACH BE REQUIRED TO PAY TO THE PURCHASER IN FULL SATISFACTION
OF SUCH PAYMENT OBLIGATION, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS OR
INTERBANK TRANSFER TO THE PURCHASER'S ACCOUNT, THEIR RESPECTIVE PRO RATA
PORTIONS OF AN AMOUNT EQUAL TO THE LESSER OF: (I) THE SUM OF THE SELLERS' SHARE
AND THE AMOUNT OF ANY LOSSES SUBJECT TO PRIOR PAYMENTS FROM THE INDEMNITY AND
EARNOUT ESCROW FUNDS WITH RESPECT TO A BREACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 2.3; OR (II) THE AMOUNT BY WHICH THE INDEMNITY
AND EARNOUT ESCROW FUNDS WERE INSUFFICIENT TO SATISFY THE FULL AMOUNT OF SUCH
PAYMENT.
7.13
CONFLICT OF INTEREST.
THE PURCHASER WAIVES AND WILL NOT ASSERT,
AND AGREES TO CAUSE THE COMPANY AND THE COMPANY SUBSIDIARIES TO WAIVE AND TO NOT
ASSERT AFTER THE CLOSING, ANY CONFLICT OF INTEREST ARISING OUT OF THE
REPRESENTATION, AFTER THE CLOSING (THE "POST-CLOSING REPRESENTATION"), OF ANY
SELLER OR THE STOCKHOLDER REPRESENTATIVE, OR ANY OFFICER, DIRECTOR, PRINCIPAL OR
MANAGING MEMBER OF A GENERAL PARTNER OR MANAGING MEMBER OF A SELLER OR THE
STOCKHOLDER REPRESENTATIVE (ANY SUCH PERSON, A "DESIGNATED PERSON") IN ANY
MATTER INVOLVING THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, BY
KELLEY DRYE & WARREN LLP (THE "CURRENT REPRESENTATION").
NOTWITHSTANDING THE
FOREGOING, IF AFTER THE CLOSING PURCHASER DISCOVERS FACTS MATERIALLY DIFFERENT
FROM THOSE MADE AVAILABLE TO PURCHASER REGARDING SERVICES PERFORMED BY COUNSEL
TO SELLERS ON BEHALF OF THE COMPANY (AND IN PARTICULAR, IF SUCH COUNSEL WAS
INVOLVED IN MATTERS THAT ARE THE BASIS OF A THIRD PARTY CLAIM AGAINST THE
COMPANY OR A COMPANY SUBSIDIARY), THEN PURCHASER MAY ASSERT A CONFLICT OF
INTEREST ARISING FROM SUCH NEWLY DISCOVERED FACTS WITH RESPECT TO THE MATTERS IN
QUESTION.
ARTICLE VIII
TERMINATION
8.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR
TO THE CLOSING DATE:
(A)
BY THE WRITTEN AGREEMENT OF THE PURCHASER AND THE STOCKHOLDER
REPRESENTATIVE;
(B)
BY EITHER THE PURCHASER OR THE STOCKHOLDER REPRESENTATIVE, IF THE
CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE NOVEMBER 15, 2006 (OR SUCH OTHER
DATE TO WHICH THE PURCHASER AND THE STOCKHOLDER REPRESENTATIVE MAY AGREE IN
WRITING) (THE "END DATE"); PROVIDED, HOWEVER, THAT THE RIGHT TO TERMINATE THIS
AGREEMENT UNDER THIS SECTION 8.1(B) SHALL NOT BE AVAILABLE TO ANY PARTY WHOSE
BREACH OF ANY PROVISION OF THIS AGREEMENT SHALL HAVE CAUSED, OR