OF ANY COVENANT OR OBLIGATION OF ANY SELLER CONTAINED IN
THIS AGREEMENT; OR
(III)
EXCLUDED LIABILITIES.
(B)
SELLERS WILL HAVE NO OBLIGATION TO INDEMNIFY THE BUYER INDEMNIFIED
PERSONS PURSUANT TO SECTION 8.2(A)(I) IN RESPECT OF DAMAGES ARISING FROM THE
BREACH OF ANY REPRESENTATION OR WARRANTY DESCRIBED THEREIN UNLESS THE AGGREGATE
AMOUNT OF ALL SUCH DAMAGES INCURRED OR SUFFERED BY THE BUYER INDEMNIFIED PERSONS
EXCEEDS ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($1,250,000), AT WHICH
POINT SELLERS WILL INDEMNIFY THE BUYER INDEMNIFIED PERSONS FOR ALL DAMAGES
SUFFERED BY THEM IN EXCESS OF SUCH THRESHOLD (THE "DEDUCTIBLE") (PROVIDED THAT
THE DEDUCTIBLE WILL NOT APPLY TO CLAIMS FOR INDEMNIFICATION PURSUANT TO
SECTION 8.2(A)(I) IN RESPECT OF BREACHES OF THE REPRESENTATIONS AND WARRANTIES
SET FORTH IN SECTION 2.9(B) (SUFFICIENCY OF NON-IP ASSETS) OR
SECTION 2.11(D) (SUFFICIENCY OF KNOW-HOW)), AND SELLERS' AGGREGATE LIABILITY IN
RESPECT OF CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 8.2(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
48
(I) CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 8.2(A)(I) IN RESPECT OF
BREACHES OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 2.1
(ORGANIZATION AND GOOD STANDING), SECTION 2.2 (AUTHORITY; BINDING EFFECT),
SECTION 2.6 (TAX LIABILITIES), SECTION 2.9(A) (TITLE TO PROPERTIES) OR
SECTION 2.18(A) (NO BROKERS), OR (II) CLAIMS BASED UPON FRAUD OR INTENTIONAL
MISREPRESENTATION BY SELLERS OR THEIR AFFILIATES.
THE PARTIES ACKNOWLEDGE AND
AGREE THAT BUYERS 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 BUYERS UNDER THIS AGREEMENT.
(C)
PATENT LIABILITY AND INDEMNITY; EXCLUSIVE REMEDY.
SELLERS,
JOINTLY AND SEVERALLY, SHALL INDEMNIFY THE BUYER INDEMNIFIED PERSONS IN
ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 8.2(C) FOR ANY PATENT DAMAGES AS
A RESULT OF OR ARISING OUT OF ANY CLAIM CONTAINING AN ALLEGATION THAT THE
PRODUCTS INFRINGE A THIRD PARTY PATENT (AS DEFINED HEREIN) ("PATENT CLAIM").
"PATENT DAMAGES" SHALL MEAN MONETARY DAMAGES (INCLUDING, FOR THE AVOIDANCE OF
DOUBT, ROYALTY AWARDS, ACCOUNTINGS, LOST PROFITS OR OTHER SIMILAR REMEDIES UNDER
THE PATENT LAWS) ACTUALLY PAID BY BUYER INDEMNIFIED PERSONS (AND NOT REIMBURSED
BY INSURERS, OR BY CONTRIBUTION OR A SIMILAR REMEDY) TO A THIRD PARTY:
(A) ON
ANY FINAL ORDER AFTER ALL APPEALS ARE EXHAUSTED OR THE TIME FOR ALL SUCH APPEALS
HAS EXPIRED ENTERED IN RESPECT OF SUCH A PATENT CLAIM BY A GOVERNMENTAL ENTITY
AGAINST A BUYER INDEMNIFIED PERSON; (B) FOR ANY SETTLEMENTS ENTERED INTO BY A
BUYER INDEMNIFIED PERSON AS A RESULT OF OR ARISING OUT OF SUCH A PATENT CLAIM;
PROVIDED, HOWEVER, THAT SELLERS HAVE CONSENTED IN WRITING TO SUCH SETTLEMENT,
SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED; OR (C) AS
A RESULT OF OR ARISING OUT OF ANY INDEMNIFICATION, CONTRIBUTION, WARRANTY OR
SIMILAR OR EQUIVALENT CLAIM BY ANY CONTRACT MANUFACTURERS, END-USERS, CUSTOMERS,
SUPPLIERS OR DISTRIBUTORS OF ANY BUYER INDEMNIFIED