HEREWITH; PROVIDED, HOWEVER, THAT NONE OF THE FOLLOWING SHALL BE
DEEMED, EITHER ALONE OR IN COMBINATION, TO CONSTITUTE A SELLER MATERIAL ADVERSE
EFFECT, NOR SHALL ANY OF THE FOLLOWING BE TAKEN INTO ACCOUNT IN DETERMINING
WHETHER THERE HAS BEEN A SELLER MATERIAL ADVERSE EFFECT: ANY EFFECT RESULTING
FROM OR ARISING OUT OF (I) THE ANNOUNCEMENT OF THIS AGREEMENT OR PENDENCY OF THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING LOSS OF EMPLOYEES (BUT ONLY TO THE
EXTENT THAT SUCH EFFECT IS THE DIRECT AND PROXIMATE CAUSE OF SUCH ANNOUNCEMENT
OR PENDENCY), (II) FLUCTUATIONS IN THE SELLER'S STOCK PRICE, (III) PERFORMANCE
BY A PARTY OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR AS REQUIRED BY APPLICABLE
LAWS OR ACCOUNTING REQUIREMENTS, (IV) GENERAL ECONOMIC CONDITIONS IN THE UNITED
STATES THAT DO NOT DISPROPORTIONATELY AND ADVERSELY AFFECT THE GOLD BUSINESS,
TAKEN AS A WHOLE, IN ANY MATERIAL
6
RESPECT, AND (V) ANY NATURAL DISASTER OR ANY ACTS OF TERRORISM, SABOTAGE,
MILITARY ACTION OR WAR (WHETHER OR NOT DECLARED) OR ANY ESCALATION OR WORSENING
THEREOF.
(III)
"SELLER PLANS" SHALL MEAN EACH "EMPLOYEE BENEFIT
PLAN" (WITHIN THE MEANING OF SECTION 3(3) OF ERISA), AND EACH SEVERANCE, CHANGE
IN CONTROL, RETENTION OR EMPLOYMENT, TERMINATION PAY, PERFORMANCE, RETIREMENT,
THRIFT, SAVINGS PLAN, PROGRAM OR AGREEMENT, AND ANY PENSION, PROFIT SHARING,
DEFERRED COMPENSATION, VACATION, PAID TIME OFF, PERQUISITE, FRINGE BENEFIT,
INCENTIVE, BONUS, STOCK OPTION, STOCK PURCHASE, STOCK APPRECIATION, AND
RESTRICTED STOCK PLAN, DISABILITY, DEATH BENEFIT, HOSPITALIZATION, MEDICAL,
DENTAL, LIFE OR OTHER INSURANCE (WHETHER INSURED OR SELF-INSURED), WELFARE
BENEFIT, EMPLOYEE LOAN, EMPLOYEE ASSISTANCE, SUPPLEMENTARY UNEMPLOYMENT BENEFIT
OR ANY OTHER PLAN, PROGRAM, ARRANGEMENT, UNDERSTANDING, OR POLICY (WHETHER OR
NOT LEGALLY BINDING) UNDER WHICH ANY EMPLOYEE HAS ANY PRESENT OR FUTURE RIGHT TO
BENEFITS AND UNDER WHICH SELLER OR ANY OF ITS ERISA AFFILIATES HAS HAD OR HAS
ANY PRESENT OR FUTURE LIABILITY.
(JJJ)
"STATE TAX LIABILITIES" SHALL HAVE THE MEANING
ASCRIBED TO IT IN SECTION 6.9 HEREOF.
(KKK)
"STOCKHOLDERS EQUITY" SHALL MEAN THE ASSETS MINUS THE
LIABILITIES ADJUSTED CONSISTENT WITH THE MARCH BALANCE SHEET.
(LLL)
"SUBSIDIARY" SHALL MEAN WITH RESPECT TO A PARTY,
ANY OTHER CORPORATION, LIMITED LIABILITY COMPANY, GENERAL OR LIMITED
PARTNERSHIP, UNINCORPORATED ASSOCIATION OR OTHER BUSINESS ENTITY OF WHICH (A) IF
A CORPORATION, A MAJORITY OF THE TOTAL VOTING POWER OF SHARES OF STOCK ENTITLED
(WITHOUT REGARD TO THE OCCURRENCE OF ANY CONTINGENCY) TO VOTE IN THE ELECTION OF
DIRECTORS, MANAGERS OR TRUSTEES THEREOF IS AT THE TIME OWNED OR CONTROLLED,
DIRECTLY OR INDIRECTLY, BY SUCH PARTY, OR ONE OR MORE OF THE OTHER SUBSIDIARIES
OF SUCH PARTY OR A COMBINATION THEREOF, OR (B) IF A LIMITED LIABILITY COMPANY,
PARTNERSHIP, ASSOCIATION OR OTHER BUSINESS ENTITY, A MAJORITY OF THE PARTNERSHIP
OR OTHER SIMILAR OWNERSHIP INTEREST THEREOF IS AT THE TIME OWNED OR CONTROLLED,
DIRECTLY OR INDIRECTLY, BY SUCH PARTY, OR ONE OR MORE SUBSIDIARIES OF SUCH PARTY
OR A COMBINATION THEREOF.
(MMM)
"SURVIVAL DATE" SHALL HAVE THE MEANING ASCRIBED TO SUCH TERM IN
SECTION 8.1.
(NNN)
"TAX(ES)" SHALL MEAN WITH RESPECT TO ANY PERSON: (I) ANY
FEDERAL, STATE, PROVINCIAL, REGIONAL, COUNTY, LOCAL