REPS AS CONTAINED IN, AND DEFINED IN,
THE MERGER AGREEMENT OR ANY COVENANT OF THE COMPANY SET FORTH IN ARTICLE V OR
ARTICLE VI OF THE MERGER AGREEMENT THE PERFORMANCE OF WHICH MAY OR IS SPECIFIED
TO OCCUR AFTER THE EXPIRATION OF SUCH TWO-YEAR PERIOD FOR WHICH A CLAM MAY BE
BROUGHT THROUGH THE SURVIVAL PERIOD SET FORTH IN SECTION 9.1 OF THE MERGER
AGREEMENT, WHICH SURVIVAL PERIOD SHALL IN NO EVENT BE MORE THAN FOUR YEARS AFTER
THE DATE HEREOF, AND WHICH CLAIMS WITH RESPECT TO SUCH PARENT LOSSES SHALL HAVE
ARISEN ON OR AFTER THE 18-MONTH ANNIVERSARY FROM THE DATE HEREOF (COLLECTIVELY,
THE "EXTENDED REP PARENT LOSSES").
(B)
AFTER THE TERMINATION OF THE ESCROW
AGREEMENT, THE SHAREHOLDERS SHALL BE JOINTLY AND SEVERALLY LIABLE TO THE PARENT
INDEMNIFIED PARTIES FOR ANY EXTENDED REP PARENT LOSS, AND PARENT SHALL BE
ENTITLED TO REIMBURSEMENT PURSUANT TO THE INDEMNIFICATION TERMS CONTAINED IN
THIS AGREEMENT, (I) ONLY IF PARENT DELIVERS TO SHAREHOLDERS' REPRESENTATIVE A
WRITTEN NOTICE, PURSUANT TO SECTION 9.4 AND 9.5 OF THE MERGER AGREEMENT, AS
APPLICABLE, WITH RESPECT TO SUCH PARENT INDEMNIFIED PARTY'S CLAIM TO BE
INDEMNIFIED FOR SUCH PARENT LOSSES PRIOR TO EXPIRATION OF THE APPLICABLE
SURVIVAL PERIOD SET FORTH IN SECTION 9.1 OF THE MERGER AGREEMENT AND (II) TO THE
EXTENT THE AGGREGATE AMOUNT OF ALL PARENT LOSSES EXCEEDS THE BASKET AMOUNT
(INCLUDING, WITHOUT LIMITATION, THOSE INCURRED PRIOR TO THE TERMINATION OF THE
ESCROW AGREEMENT), IN WHICH CASE THE SHAREHOLDERS SHALL BE OBLIGATED TO
INDEMNIFY PARENT INDEMNIFIED PARTIES FOR THE TOTAL AMOUNT OF SUCH EXTENDED REP
PARENT LOSSES IN EXCESS OF THE BASKET AMOUNT, PROVIDED, HOWEVER, THAT THE BASKET
AMOUNT SHALL APPLY ONLY TO BREACHES, INACCURACIES OR MISREPRESENTATIONS OF
REPRESENTATIONS AND WARRANTIES OTHER THAN THOSE SET FORTH IN SECTIONS 3.1, 3.3,
3.4 AND 3.12 OF THE MERGER AGREEMENT AND SHALL NOT APPLY TO (I) ANY BREACHES OF
ANY COVENANTS OF THE COMPANY SET FORTH IN ARTICLE V OR ARTICLE VI OF THE MERGER
AGREEMENT OR (II) ANY PARENT LOSSES RELATED TO ANY ACTION REQUIRED TO ENFORCE
THE INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT.
EXCEPT FOR ACTUAL
FRAUD IN CONNECTION WITH ANY BREACH OR MISREPRESENTATION BY THE COMPANY, THE
AGGREGATE LIABILITY OF THE SHAREHOLDERS FOR ALL AMOUNTS UNDER THIS
SECTION 6(B) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE DIFFERENCE
BETWEEN THE CAP AND THE AMOUNT OF THE ESCROW ACCOUNT PAID TO PARENT PURSUANT TO
THE TERMS OF THE ESCROW AGREEMENT.
(C)
SECTIONS 9.4 AND 9.5 OF THE MERGER
AGREEMENT SHALL GOVERN THE PROCEDURES FOR GIVING NOTICE OF CLAIMS FOR
INDEMNIFICATION AND FOR ASSERTING CLAIMS FOR INDEMNIFICATION UNDER THIS
AGREEMENT.
7.
CAPACITY.
THE PARTIES HEREBY AGREE
THAT THE SHAREHOLDERS ARE EXECUTING THIS AGREEMENT SOLELY IN THEIR CAPACITY AS
SHAREHOLDERS OF THE COMPANY.
NOTHING CONTAINED IN THIS AGREEMENT SHALL LIMIT OR
OTHERWISE AFFECT THE CONDUCT OR EXERCISE OF ANY SHAREHOLDER'S FIDUCIARY DUTIES
AS AN OFFICER OR DIRECTOR OF THE COMPANY.
8.
FURTHER ASSURANCES.
EACH SHAREHOLDER
WILL, UPON THE REQUEST OF PARENT, EXECUTE AND DELIVER SUCH DOCUMENTS AND TAKE