ANY SETTLEMENT OR
OTHER COMPROMISE WITH RESPECT TO ANY PENDING OR THREATENED ACTION OR CLAIM IN
RESPECT OF WHICH INDEMNIFICATION OR CONTRIBUTION MAY BE OR HAS BEEN SOUGHT
HEREUNDER (WHETHER OR NOT THE INDEMNITEE IS AN ACTUAL OR POTENTIAL PARTY TO SUCH
ACTION OR CLAIM) WHICH DOES NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF THE
GIVING BY THE CLAIMANT OR PLAINTIFF TO SUCH INDEMNITEE OF A RELEASE FROM ALL
LIABILITY IN RESPECT TO SUCH CLAIM OR LITIGATION AND SUCH SETTLEMENT SHALL NOT
INCLUDE ANY ADMISSION AS TO FAULT ON THE PART OF THE INDEMNITEE.
FOLLOWING
INDEMNIFICATION AS PROVIDED FOR HEREUNDER, THE COMPANY SHALL BE SUBROGATED TO
ALL RIGHTS OF THE INDEMNITEE WITH RESPECT TO ALL THIRD PARTIES, FIRMS OR
CORPORATIONS RELATING TO THE MATTER FOR WHICH INDEMNIFICATION HAS BEEN MADE.
THE FAILURE TO DELIVER WRITTEN NOTICE TO THE COMPANY WITHIN A REASONABLE TIME OF
THE COMMENCEMENT OF ANY SUCH ACTION SHALL NOT RELIEVE THE COMPANY OF ANY
LIABILITY TO THE INDEMNITEE UNDER THIS SECTION 13, EXCEPT TO THE EXTENT THAT THE
COMPANY IS PREJUDICED IN ITS ABILITY TO DEFEND SUCH ACTION.
(III)
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EACH BUYER HEREBY
AGREES THAT ANY CLAIM FOR INDEMNIFICATION PURSUANT TO THIS SECTION 13 MAY ONLY
BE MADE IF SUCH CLAIM HAS BEEN AUTHORIZED AND APPROVED IN WRITING BY A MAJORITY
OF THE BUYERS, AND ANY ACTION TAKEN IN FURTHERANCE OF ANY SUCH CLAIM SHALL
REQUIRE THE AUTHORIZATION AND APPROVAL OF A MAJORITY OF THE BUYERS.
ANY ACTION
TAKEN WITH RESPECT TO ANY CLAIM FOR INDEMNIFICATION PURSUANT TO THIS SECTION 13
BY OR ON BEHALF OF ANY INDEMNITEE WITHOUT THE AUTHORIZATION AND APPROVAL
CONTEMPLATED HEREIN SHALL BE VOID AND OF NO FORCE OR EFFECT.
(IV)
THE INDEMNIFICATION REQUIRED BY THIS SECTION 13 SHALL BE MADE BY
PERIODIC PAYMENTS OF THE AMOUNT THEREOF DURING THE COURSE OF THE INVESTIGATION
OR DEFENSE, AS AND WHEN BILLS ARE RECEIVED OR INDEMNIFIED LIABILITIES ARE
INCURRED.
(V)
EACH OF THE BUYERS ACKNOWLEDGES AND AGREES THAT, AFTER THE
CLOSING, IN THE ABSENCE OF FRAUD BY THE COMPANY, ANY OF THE SUBSIDIARIES OR ANY
OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, THE INDEMNITY AGREEMENTS
CONTAINED IN THIS SECTION 13, TOGETHER WITH ANY REMEDIES THAT MAY BE AVAILABLE
PURSUANT TO SECTION 14(N) HEREOF, SHALL BE THE SOLE AND EXCLUSIVE REMEDIES FOR
THE BUYERS FOR (A) ANY CAUSE OF ACTION OR SIMILAR RIGHT OF THE INDEMNITEE
AGAINST THE COMPANY OR OTHERS, AND (B) ANY LIABILITIES THE COMPANY MAY BE
SUBJECT TO PURSUANT TO LAWS, IN ANY EVENT, ARISING FROM, OR OTHERWISE RELATED
TO, THE TRANSACTIONS.
FOR PURPOSES OF CLARIFICATION, NOTHING SET FORTH IN THIS
SECTION 13(A)(V) SHALL SERVE TO LIMIT THE RIGHTS OF ANY BUYER UNDER SECTIONS
12(F) OR 14(M) HEREOF.
54
b.
Limitations on Indemnification.
(I)
INDEMNITEES SHALL NOT BE ENTITLED TO RECEIVE ANY INDEMNIFICATION
PAYMENTS UNDER SECTION 13 UNTIL THE AGGREGATE AMOUNT OF INDEMNIFIED LIABILITIES
INCURRED BY THE INDEMNITEES EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000)
(THE "BASKET AMOUNT"), AND THEN THE COMPANY SHALL BE LIABLE FOR THE AMOUNT OF