THE BUSINESS.
IT IS THE EXPRESS AND SPECIFIC INTENTION OF THE
PARTIES TO THIS AGREEMENT THAT SELLERS' TOTAL LIABILITY ON ACCOUNT OF ANY AND
ALL PATENT CLAIMS AS A RESULT OF OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS
AND THE BUSINESS BE LIMITED TO NO MORE THAN FIFTEEN MILLION DOLLARS
($15,000,000) WITH RESPECT TO PRODUCTS SOLD AFTER THE CLOSING DATE, PLUS, WITH
RESPECT TO PRODUCTS SOLD BEFORE THE CLOSING DATE, THE AMOUNTS SET FORTH IN
SECTION 8.2(C)(VI), IF ANY.
THIS INDEMNITY OBLIGATION AND REMEDY ARE GIVEN TO
BUYER INDEMNIFIED PERSONS SOLELY FOR THEIR BENEFIT AND THERE ARE NO OTHER THIRD
PARTY BENEFICIARIES OF THIS REMEDY.
8.3
INDEMNIFICATION BY BUYERS.
(A)
SUBJECT TO THE LIMITATIONS SET FORTH IN THIS ARTICLE 8, FOLLOWING
THE CLOSING, BUYERS SHALL INDEMNIFY SELLERS AND THEIR AFFILIATES AND THE
OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF EACH
SELLER AND ITS AFFILIATES (EACH, A "SELLER INDEMNIFIED PERSON") AND HOLD THEM
HARMLESS FROM AND AGAINST ANY DAMAGES SUFFERED OR INCURRED BY THE SELLER
INDEMNIFIED PERSONS AS A RESULT OF, ARISING OUT OF OR RELATING TO, ANY:
(I)
BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY BUYERS CONTAINED
IN THIS AGREEMENT, THE BUYERS' SCHEDULE OR THE CERTIFICATE DELIVERED PURSUANT TO
SECTION 7.2(A)
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(DETERMINED WITHOUT GIVING EFFECT TO ANY "MATERIALITY" OR "BUYER MATERIAL
ADVERSE EFFECT" QUALIFICATION SET FORTH THEREIN);
(II)
BREACH OF ANY COVENANT OR OBLIGATION OF ANY BUYER CONTAINED IN
THIS AGREEMENT; OR
(III)
ASSUMED OBLIGATIONS.
(B)
BUYERS WILL HAVE NO OBLIGATION TO INDEMNIFY THE SELLER INDEMNIFIED
PERSONS PURSUANT TO SECTION 8.3(A)(I) IN RESPECT OF DAMAGES ARISING FROM THE
BREACH OF ANY REPRESENTATION OR WARRANTY DESCRIBED THEREIN UNLESS AND UNTIL THE
AGGREGATE AMOUNT OF ALL SUCH DAMAGES INCURRED OR SUFFERED BY THE SELLER
INDEMNIFIED PERSONS EXCEEDS ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS
($1,250,000) (AT WHICH POINT BUYERS WILL INDEMNIFY THE SELLER INDEMNIFIED
PERSONS FOR ALL DAMAGES SUFFERED BY THEM IN EXCESS OF SUCH THRESHOLD), AND THE
BUYERS' AGGREGATE LIABILITY IN RESPECT OF CLAIMS FOR INDEMNIFICATION PURSUANT TO
SECTION 8.3(A)(I) WILL NOT IN ANY EVENT EXCEED ELEVEN PERCENT (11%) OF THE
PURCHASE PRICE ACTUALLY RECEIVED BY SELLERS UNDER SECTION 1.2 AT THE TIME OF
SUCH INDEMNIFICATION PAYMENT; PROVIDED THAT THE FOREGOING LIMITATIONS WILL NOT
APPLY TO (I) CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 8.3(A)(I) IN RESPECT
OF BREACHES OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.1
(ORGANIZATION AND GOOD STANDING), SECTION 3.2 (AUTHORITY; BINDING EFFECT) OR
SECTION 3.6 (NO BROKERS) OR (II) CLAIMS BASED UPON FRAUD OR INTENTIONAL
MISREPRESENTATION BY BUYERS OR THEIR AFFILIATES.
THE PARTIES ACKNOWLEDGE AND
AGREE THAT SELLERS SHALL NOT BE ENTITLED TO ANY RIGHTS OF OFFSET AND SHALL NOT
BE PERMITTED TO DEDUCT ANY AMOUNTS CLAIMED HEREUNDER FROM ANY PAYMENTS OTHERWISE
REQUIRED TO BE MADE BY SELLERS UNDER THIS AGREEMENT.
8.4
THIRD-PARTY CLAIMS.
ALL CLAIMS FOR INDEMNIFICATION BY A PARTY
ENTITLED TO BE INDEMNIFIED UNDER THIS ARTICLE 8 (AN "INDEMNITEE") BY ANOTHER
PARTY (AN "INDEMNITOR") SHALL BE ASSERTED AND RESOLVED AS FOLLOWS:
(A)
IF ANY CLAIM OR DEMAND (OTHER THAN