AMOUNT OF ANY INSURANCE OR INDEMNIFICATION PROCEEDS ACTUALLY PAID BY ANY THIRD
PARTY IN RESPECT OF THE SUBJECT MATTER OF SUCH CLAIM (AFTER DEDUCTING ALL
ATTORNEYS' FEES, EXPENSES AND OTHER COSTS OF RECOVERY); PROVIDED, THAT THE
AMOUNTS OF ANY INCREASE IN INSURANCE PREMIUM OR RETROACTIVE PREMIUMS OR PREMIUM
ADJUSTMENTS RESULTING SOLELY FROM THE MAKING OF SUCH CLAIM OR CLAIMS AGAINST
INSURERS SHALL, FOR THIS PURPOSE, BE DEEMED TO BE DEDUCTED FROM THE AMOUNT SO
PAID BY SUCH INSURERS; PROVIDED, FURTHER, THAT THE COMPANY AGREES, AT THE
REQUEST OF THE STOCKHOLDERS' REPRESENTATIVE, TO FILE A CLAIM AGAINST ANY SUCH
INSURER (BUT NOT INDEMNITOR) AND USE ITS REASONABLE EFFORTS TO PURSUE ANY SUCH
FILED CLAIM, SO LONG AS THE COSTS OF SUCH ACTIVITIES ARE PAID BY THE INVESTORS
AND THE FILING OF SUCH CLAIM AND SUCH ACTIVITIES WILL NOT MATERIALLY AND
ADVERSELY AFFECT THE BUSINESS OF THE COMPANY.
11.4.
SOLE REMEDY.
FOLLOWING THE CLOSING, THE INDEMNIFICATION PROVIDED
FOR IN THIS ARTICLE XI SHALL BE THE SOLE REMEDY OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IN RESPECT OF ANY CLAIM FOR MONETARY DAMAGES
ARISING UNDER OR OUT OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT; PROVIDED,
HOWEVER, THAT THIS SECTION 11.4 SHALL NOT APPLY TO LOSSES RESULTING FROM
RESULTING FROM FRAUD.
11.5.
TAX TREATMENT.
ANY INDEMNIFICATION PAYMENTS UNDER THIS ARTICLE XI
SHALL BE TREATED FOR TAX PURPOSES AS ADJUSTMENTS TO THE AGGREGATE PURCHASE PRICE
PAYMENTS.
ARTICLE XII
MISCELLANEOUS
12.1.
INTERPRETIVE PROVISIONS.
(A)
WHENEVER USED IN THIS AGREEMENT, (I) "INCLUDING" (OR ANY VARIATION
THEREOF) MEANS INCLUDING WITHOUT LIMITATION AND (II) ANY REFERENCE TO GENDER
SHALL INCLUDE ALL GENDERS.
(B)
FOR PURPOSES OF THIS AGREEMENT, NONE OF THE STOCKHOLDERS SHALL BE
35
considered and affiliate of Buyer and no Buyer shall be considered an affiliate
of any Stockholder.
(C)
THE PARTIES ACKNOWLEDGE AND AGREE THAT (I) EACH PARTY AND ITS
COUNSEL HAVE REVIEWED THE TERMS AND PROVISIONS OF THIS AGREEMENT AND HAVE
CONTRIBUTED TO ITS DRAFTING, (II) THE NORMAL RULE OF CONSTRUCTION, TO THE EFFECT
THAT ANY AMBIGUITIES ARE RESOLVED AGAINST THE DRAFTING PARTY, SHALL NOT BE
EMPLOYED IN THE INTERPRETATION OF IT, AND (III) THE TERMS AND PROVISIONS OF THIS
AGREEMENT SHALL BE CONSTRUED FAIRLY AS TO ALL PARTIES HERETO AND NOT IN FAVOR OF
OR AGAINST ANY PARTY, REGARDLESS OF WHICH PARTY WAS GENERALLY RESPONSIBLE FOR
THE PREPARATION OF THIS AGREEMENT.
12.2.
ENTIRE AGREEMENT.
THIS AGREEMENT (INCLUDING THE DISCLOSURE
SCHEDULES AND THE CERTIFICATES AND EXHIBITS ATTACHED HERETO) TOGETHER WITH THE
ANCILLARY AGREEMENTS CONSTITUTE THE SOLE UNDERSTANDING OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF.
12.3.
SUCCESSORS AND ASSIGNS.
THE TERMS AND CONDITIONS OF THIS AGREEMENT
SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE RESPECTIVE SUCCESSORS,
ASSIGNS, EXECUTORS, ADMINISTRATORS AND HEIRS OF THE PARTIES HERETO; PROVIDED
HOWEVER, THAT THIS AGREEMENT MAY NOT BE ASSIGNED BY ANY STOCKHOLDER OR THE
COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER OR BE ASSIGNED BY BUYER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE STOCKHOLDERS' REPRESENTATIVE, EXCEPT
THAT (I) BUYER MAY,