INDEMNIFIABLE LOSSES
ASSERTED AGAINST BIG SHALL ONLY BE PAID OR REIMBURSED OUT OF THE ESCROW FUND TO
THE PURCHASER'S INDEMNIFIED PARTIES UP TO THE PERCENTAGES OF ESCROWED CASH AND
ESCROWED STOCK WHICH ARE APPORTIONED TO BIG UPON DISTRIBUTION FROM THE COMPANY
IN ACCORDANCE WITH SECTION 1.2(C).
AFTER THE EXHAUSTION OF THE ESCROW FUND OR
UPON THE RELEASE OF THE ESCROW FUND IN ACCORDANCE WITH THE TERMS OF THE ESCROW
AGREEMENT, ANY CLAIM FOR INDEMNIFICATION BY THE PURCHASER'S INDEMNIFIED PARTIES
PURSUANT TO ARTICLE VII SHALL BE SATISFIED BY THE APPLICABLE SELLER FROM REG
COMMON STOCK IN VALUE UP TO AN AGGREGATE AMOUNT FOR ALL SELLERS OF FIVE MILLION
DOLLARS ($5,000,000), WITH SUCH REG COMMON STOCK VALUED IN ACCORDANCE WITH
SECTION 1.2(F).
SECTION 7.5
SURVIVAL.
ALL REPRESENTATIONS,
WARRANTIES, COVENANTS AND OBLIGATIONS IN THE AGREEMENT, THE COMPANY DISCLOSURE
SCHEDULE, THE REG DISCLOSURE SCHEDULE, THE CERTIFICATES DELIVERED PURSUANT TO
ARTICLE VI AND ANY OTHER CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT SHALL
SURVIVE THE CLOSING AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY, SUBJECT TO SECTION 9.1.
SECTION 7.6
WAIVER OF CERTAIN DAMAGES.
IN NO
EVENT SHALL ANY INDEMNIFYING PARTY HAVE ANY LIABILITY UNDER THIS AGREEMENT OR
ANY AGREEMENT, CERTIFICATE OR OTHER DOCUMENT RELATED HERETO OR OTHERWISE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR ANY SPECIAL,
SPECULATIVE, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, HOWEVER
CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT OR IN
TORT, INCLUDING NEGLIGENCE), AND WHETHER OR NOT THE INDEMNIFYING PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS WAIVER
SHALL NOT APPLY TO THE EXTENT SUCH SPECIAL, SPECULATIVE, INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES ARE AWARDED IN A PROCEEDING BROUGHT OR
ASSERTED BY A THIRD PARTY AGAINST AN INDEMNIFIED PARTY.
SECTION 7.7
EXPRESS NEGLIGENCE.
THE FOREGOING
INDEMNITIES ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE
WITH
29
THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE,
DOCTRINE RELATING TO INDEMNIFICATION FOR STRICT LIABILITY OR ANY SIMILAR
DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE
NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR
STRICT LIABILITY OF ANY OF THE INDEMNIFIED PARTIES.
ARTICLE VIII
TERMINATION
Section 8.1
Termination.
This Agreement may
be terminated at any time prior to the Closing:
(A)
BY THE MUTUAL WRITTEN CONSENT OF THE PURCHASER, REG AND THE
SELLERS;
(B)
BY THE PURCHASER OR REG BY GIVING WRITTEN NOTICE TO THE
SELLERS AT ANY TIME (I) IF ANY SELLER HAS BREACHED ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT IN A MANNER THAT, INDIVIDUALLY
OR IN THE AGGREGATE, HAS OR IS REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT WITH RESPECT TO PURCHASER, REG OR THE COMPANY OR A MATERIALLY ADVERSE
EFFECT ON THE TIMELY CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, THE
PURCHASER HAS NOTIFIED THE SELLER OF THE BREACH AND THE BREACH HAS CONTINUED
UNCURED FOR A PERIOD OF THIRTY (30) DAYS AFTER THE NOTICE OF BREACH OR (II) IF
THE CLOSING SHALL NOT