EXCEPT AS PROVIDED
IN SECTION 13.5, THE SOLE AND EXCLUSIVE REMEDY OF ANY PARTY HERETO OR THEIR
RESPECTIVE AFFILIATES WITH RESPECT TO THIS AGREEMENT AND IN ANY OTHER AGREEMENT
DELIVERED BY ANY SELLER OR BUYER IN CONNECTION WITH THE CONTEMPLATED
TRANSACTIONS (COLLECTIVELY, THE "TRANSACTION AGREEMENTS") OR ANY OTHER CLAIMS
RELATING TO THE BUSINESS, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE OTHER
TRANSACTION AGREEMENTS AND THE CONTEMPLATED TRANSACTIONS SHALL BE LIMITED TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE 11; PROVIDED THAT THIS
LIMITATION SHALL NOT APPLY IN THE EVENT OF FRAUD; AND PROVIDED FURTHER THAT IF
AN INDEMNITOR SHALL BREACH OR THREATEN TO COMMIT A BREACH OF ANY OF ITS
RESTRICTIVE COVENANTS SET FORTH IN THIS AGREEMENT OR ANY OTHER TRANSACTION
AGREEMENT (THE "RESTRICTIVE COVENANTS"), ANY INDEMNITEE SHALL HAVE THE RIGHT IN
ADDITION TO, AND NOT IN LIEU OF, ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO SUCH
INDEMNITEE, UNDER LAW OR IN EQUITY, TO HAVE THE RESTRICTIVE COVENANTS
SPECIFICALLY ENFORCED BY ANY COURT, INCLUDING THE RIGHT TO SEEK ENTRY AGAINST
SUCH INDEMNITOR, ANY OF ITS AFFILIATES AND ANY SHAREHOLDER, OFFICER, DIRECTOR,
EMPLOYEE OF EACH OF THE FOREGOING OF RESTRAINING ORDERS AND INJUNCTIONS
(PRELIMINARY, MANDATORY, TEMPORARY AND PERMANENT) AGAINST VIOLATIONS, THREATENED
OR ACTUAL, AND WHETHER OR NOT THEN CONTINUING, OF THE RESTRICTIVE COVENANTS, IT
BEING ACKNOWLEDGED AND AGREED THAT MONEY DAMAGES WILL NOT PROVIDE SUCH
INDEMNITEE AN ADEQUATE REMEDY.
57
(B)
THE PARTIES HERETO INTEND THAT, EVEN THOUGH
INDEMNIFICATION AND OTHER OBLIGATIONS APPEAR IN VARIOUS SECTIONS AND ARTICLES OF
THIS AGREEMENT, THE INDEMNIFICATION PROCEDURES AND LIMITATIONS CONTAINED IN THIS
ARTICLE 11 SHALL APPLY TO ALL INDEMNITY AND OTHER OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT EXPRESSLY EXCLUDED IN THIS ARTICLE
11.
11.13
NO SPECIAL DAMAGES
IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER THIS ARTICLE 11 OR OTHERWISE IN
RESPECT OF THIS AGREEMENT FOR EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, REMOTE,
SPECULATIVE OR CONSEQUENTIAL DAMAGES EXCEPT TO THE EXTENT ANY SUCH PARTY SUFFERS
SUCH DAMAGES TO AN UNAFFILIATED THIRD PARTY IN CONNECTION WITH A THIRD PARTY
CLAIM, IN WHICH EVENT SUCH DAMAGES SHALL BE RECOVERABLE.
12.
CONFIDENTIALITY
12.1
DEFINITION OF CONFIDENTIAL INFORMATION
(A)
AS USED IN THIS ARTICLE 12, THE TERM
"CONFIDENTIAL INFORMATION" INCLUDES ANY AND ALL OF THE FOLLOWING INFORMATION OF
ANY SELLER OR BUYER THAT HAS BEEN OR MAY HEREAFTER BE DISCLOSED IN ANY FORM,
WHETHER IN WRITING, ORALLY, ELECTRONICALLY OR OTHERWISE, OR OTHERWISE MADE
AVAILABLE BY OBSERVATION, INSPECTION OR OTHERWISE BY EITHER PARTY (BUYER ON THE
ONE HAND OR SELLERS ON THE OTHER HAND) OR ITS REPRESENTATIVES (COLLECTIVELY, A
"DISCLOSING PARTY") TO THE OTHER PARTY OR ITS REPRESENTATIVES (COLLECTIVELY, A
"RECEIVING PARTY"):
(I)
ALL INFORMATION THAT IS A TRADE
SECRET UNDER APPLICABLE TRADE SECRET OR OTHER LAW;
(II)
ALL INFORMATION CONCERNING PRODUCT
SPECIFICATIONS, DATA, KNOW-HOW, FORMULAE, COMPOSITIONS, PROCESSES, DESIGNS,
SKETCHES, PHOTOGRAPHS, GRAPHS, DRAWINGS, SAMPLES, INVENTIONS AND IDEAS, PAST,
CURRENT AND PLANNED RESEARCH AND DEVELOPMENT, CURRENT AND PLANNED MANUFACTURING
OR DISTRIBUTION METHODS AND PROCESSES, CUSTOMER LISTS, CURRENT AND ANTICIPATED
CUSTOMER REQUIREMENTS, PRICE