THE BUYER TO DEDUCT, DEPRECIATE, AMORTIZE OR OTHERWISE MAKE USE OF
THE STEP UP IN ASSET BASIS THAT WOULD HAVE ARISEN AS A RESULT OF A CODE SECTION
338(H)(10) ELECTION (ANY LOSSES ARISING AS A RESULT OF SUCH NONFULFILLMENT OR
BREACH TO BE CALCULATED USING THE HIGHEST MARGINAL FEDERAL, STATE AND LOCAL TAX
RATES); PROVIDED, HOWEVER, THAT SELLER SHALL HAVE NO OBLIGATIONS UNDER THIS
SECTION 7.2(A)(III) IF BUYER DOES NOT REASONABLY COOPERATE WITH SELLER TO TIMELY
MAKE JOINT ELECTIONS PURSUANT TO SECTION 8.1(A)(I) OR IF BUYER FILES A JOINT
ELECTION IN VIOLATION OF SECTION 8.1(A)(III).
(IV)
TO THE EXTENT THE FOLLOWING ITEMS ARE NOT INCLUDED IN THE FINAL
DETERMINATION OF THE
PURCHASE PRICE (AS DETERMINED PURSUANT TO SECTION 1.4):
(A)
ANY CLOSING INDEBTEDNESS, (B) ANY UNPAID SELLER EXPENSES, (C) ANY
PRE-CLOSING TAXES, (D) ANY LIABILITIES ARISING FROM ANY EARNINGS, EARN OUTS,
EMPLOYEE BONUS PAYOFF AND ANY SIMILAR ARRANGEMENTS, UNDER THE PRIOR STOCK
PURCHASE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE BONUS POOL, AND (E)
,OTHER THAN (I) THOSE LIABILITIES SPECIFICALLY SET FORTH ON SCHEDULE 7.2(A)(IV),
AND (II) THOSE LIABILITIES WHICH ARISE AFTER THE CLOSING DATE PURSUANT TO THE
CONTINUATION OF THE MATERIAL CONTRACTS IN THE ORDINARY COURSE OF BUSINESS SOLELY
WITH RESPECT TO THE OPERATION OF THE COMPANY'S AND THE COMPANY'S SUBSIDIARIES'
BUSINESS AFTER THE CLOSING, ANY AND ALL LIABILITIES OF COMPANY OR OF ANY OF THE
COMPANY'S SUBSIDIARIES BASED UPON, ARISING OUT OF, RELATING TO OR OTHERWISE IN
CONNECTION WITH ANY EVENTS, ACTIONS, OCCURRENCES, OMISSIONS, CIRCUMSTANCES OR
CONDITIONS OCCURRING OR EXISTING ON OR PRIOR TO THE CLOSING DATE (WHETHER
ASSERTED PRIOR TO, ON OR AFTER THE CLOSING DATE).
FOR THE AVOIDANCE OF DOUBT,
EXCEPT AS PROVIDED IN THE PRECEDING CLAUSE (II), THE SELLER INDEMNIFIES BUYER,
THE COMPANY AND THE OTHER BUYER INDEMNIFIED PARTIES FOR ALL LIABILITIES AND
OBLIGATIONS THAT ARE NOT LISTED ON SCHEDULE 7.2(A)(IV) BUT ARE LISTED ON ANY
OTHER SCHEDULE HERETO.
If and to the extent any provision of this Section 7.2 is unenforceable for any
reason, Seller hereby agrees to make the maximum contribution to the payment and
satisfaction of the Loss for which indemnification is provided for in this
Section 7.2 which is permissible under applicable Laws.
Notwithstanding
anything contained herein, in no event shall the Company be required to provide
indemnification or contribution for any obligation of Seller under this
Section 7.2; provided, that this sentence shall not apply as to any proceeds a
director or officer would be entitled to pursuant to and under the Company's
director and officers insurance.
(B)
INDEMNIFICATION OBLIGATIONS OF BUYER.
AFTER THE CLOSING, BUYER SHALL
INDEMNIFY SELLER AND ITS AFFILIATES (OTHER THAN THE COMPANY) (COLLECTIVELY,
"SELLER INDEMNIFIED PARTIES") AND HOLD THEM HARMLESS AGAINST ANY LOSSES WHICH
SELLER INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR BECOME SUBJECT TO, AS A RESULT
OF, IN CONNECTION WITH, RELATING OR INCIDENTAL TO OR BY VIRTUE OF:
(I)
ANY FACTS OR CIRCUMSTANCES WHICH CONSTITUTE A BREACH OF ANY
REPRESENTATION OR WARRANTY OF BUYER UNDER THIS AGREEMENT OR IN ANY OF THE
CERTIFICATES OR OTHER INSTRUMENTS OR