or other agreement providing for severance pay in an amount equal to
or greater than determined under this subsection, or (ii) any Company employee
covered by a collective bargaining agreement.
12.4
OMNIBUS COMPENSATION PLANS.
OUTSTANDING EQUITY
AWARDS TO COMPANY EMPLOYEES UNDER SELLER'S OMNIBUS COMPENSATION PLAN AND
SELLER'S 2004 OMNIBUS COMPENSATION PLAN WILL BE HONORED BY SELLER IN ACCORDANCE
WITH THE TERMS OF SUCH AWARDS.
ARTICLE 13
INDEMNIFICATION
13.1
SURVIVAL.
(A)
ALL REPRESENTATIONS AND WARRANTIES OF BUYER
AND SELLER CONTAINED HEREIN SHALL SURVIVE THE CLOSING FOR A PERIOD OF 18 MONTHS
FOLLOWING THE CLOSING, PROVIDED THAT THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 5.19 (TAX MATTERS) SHALL SURVIVE THE CLOSING UNTIL SIX MONTHS
AFTER THE EXPIRATION OF THE STATE AND FEDERAL STATUTE OF LIMITATIONS APPLICABLE
TO THE MATTERS COVERED THEREBY.
THE COVENANTS AND AGREEMENTS OF SELLER OR BUYER
CONTAINED IN THIS AGREEMENT SHALL SURVIVE, IF AT ALL, UNTIL, BY THEIR RESPECTIVE
TERMS, THEY ARE NO LONGER EFFECTIVE (TOGETHER WITH THE DATES IN THE PRECEDING
SENTENCE, EACH IS REFERRED TO HEREIN AS A "SURVIVAL DATE").
(B)
IN ALL INSTANCES WITH RESPECT TO ANY
SPECIFIC REPRESENTATION OR WARRANTY UNDER WHICH AN INDEMNIFIED PARTY SHALL HAVE
DELIVERED A NOTICE OF A CLAIM PRIOR TO THE SURVIVAL DATE APPLICABLE TO SUCH
REPRESENTATION OR WARRANTY AND AS TO WHICH SUCH CLAIM HAS NOT BEEN COMPLETELY
AND FINALLY RESOLVED PRIOR TO SUCH TERMINATION DATE, SUCH REPRESENTATION OR
WARRANTY SHALL SURVIVE FOR PURPOSES OF SUCH CLAIM FOR THE PERIOD OF TIME BEYOND
SUCH TERMINATION DATE SUFFICIENT TO RESOLVE, COMPLETELY AND FINALLY, THE CLAIM
RELATING TO SUCH REPRESENTATION OR WARRANTY
51
IN ACCORDANCE WITH THIS AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE
PARTIES AGREE THAT NO CLAIMS OR CAUSES OF ACTION MAY BE BROUGHT AGAINST SELLER
OR BUYER BASED UPON THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT AFTER THE APPLICABLE SURVIVAL DATE.
13.2
INDEMNIFICATION.
(A)
SELLER SHALL INDEMNIFY, DEFEND AND SAVE THE
BUYER PARTIES HARMLESS FROM, AGAINST, FOR AND IN RESPECT OF ANY DAMAGES, LOSSES,
OBLIGATIONS, LIABILITIES, CLAIMS AND EXPENSES (INCLUDING INTEREST, PENALTIES,
REASONABLE ATTORNEYS' FEES AND EXPENSES AND ALL REASONABLE AMOUNTS PAID IN
INVESTIGATION, DEFENSE OR SETTLEMENT OF ANY OF THE FOREGOING) (COLLECTIVELY,
"LOSSES") SUSTAINED OR SUFFERED BY ANY OF THE BUYER PARTIES, WHETHER OR NOT
ARISING OUT OF THIRD PARTY CLAIMS, ARISING FROM (I) A BREACH, MISREPRESENTATION
OR INACCURACY OF ANY REPRESENTATION OR WARRANTY OF SELLER CONTAINED IN THIS
AGREEMENT OR IN THE CERTIFICATE TO BE DELIVERED BY SELLER PURSUANT TO
SECTION 3.3(A) OF THIS AGREEMENT, AND (II) ANY BREACH OF ANY OF THE COVENANTS
AND AGREEMENTS OF SELLER CONTAINED IN THIS AGREEMENT, INCLUDING ANY AGREEMENT OF
SELLER TO INDEMNIFY BUYER WITH RESPECT TO SPECIFIC MATTERS CONTAINED ELSEWHERE
IN THIS AGREEMENT ("BUYER DAMAGES").
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, FOR PURPOSES OF DETERMINING WHETHER SELLER IS
OBLIGATED TO PROVIDE INDEMNIFICATION UNDER ARTICLE 13 OF THIS AGREEMENT AND FOR
PURPOSES OF DETERMINING THE AMOUNT OF BUYER DAMAGES TO WHICH SUCH
INDEMNIFICATION APPLIES, EACH REPRESENTATION AND WARRANTY IN THIS AGREEMENT
(1)
(EXCEPT SECTION