PERSON, AS A RESULT OF OR
ARISING OUT OF ANY PATENT CLAIM ALLEGED AGAINST ANY OF THEM.
PATENT DAMAGES
SHALL NOT INCLUDE ANY ATTORNEYS' FEES OR COSTS, EXPERT FEES OR COSTS, COURT
COSTS, SANCTIONS OR ANY OTHER FEES, COSTS OR EXPENSES OF DEFENSE INCURRED BY THE
BUYER INDEMNIFIED PERSON (OR THE THIRD PARTIES IN (C)) AS A RESULT OF OR ARISING
OUT OF THE DEFENSE OF ANY PATENT CLAIM.
SOLELY FOR PURPOSES OF THIS
SECTION 8.2(C), "THIRD PARTY PATENT" MEANS A PATENT ISSUED, NOT SUBJECT TO A
FINAL, NON-APPEALABLE ADVERSE DECISION RESULTING FROM REEXAMINATION OR ANY
FINAL, NON-APPEALABLE COURT DECISION OF INVALIDITY, AS OF THE CLOSING, EXCLUDING
PATENTS THAT ARE:
(X) THE SUBJECT OF NON-INFRINGEMENT OPINIONS OF OUTSIDE
COUNSEL THAT (I) ARE DATED AS OF OR PRIOR TO OCTOBER 25, 2007; (II) WERE
DELIVERED OR MADE AVAILABLE IN WRITING TO BUYERS OR THEIR COUNSEL ON OR PRIOR TO
NOVEMBER 25, 2007; AND (III) ARE SIGNED AS OF OR PRIOR TO THE DATE OF THIS
AGREEMENT, OR, WITH RESPECT TO OPINIONS THAT ARE UNSIGNED AS OF THE DATE OF THIS
AGREEMENT, SIGNED BEFORE THE CLOSING DATE; OR (Y) OWNED, LICENSED OR CONTROLLED
BY BUYERS OR THEIR AFFILIATES.
(I)
SELLERS' OBLIGATION TO INDEMNIFY THE BUYER INDEMNIFIED PERSONS IN
ACCORDANCE WITH THE TERMS OF THIS SECTION 8.2(C) IS EXPRESSLY CONDITIONAL UPON:
(A)
A WRITTEN NOTICE OF A PATENT CLAIM FIRST BEING RECEIVED BY A BUYER
INDEMNIFIED PERSON AFTER CLOSING BUT IN NO EVENT LATER THAN THE SECOND
ANNIVERSARY OF THE CLOSING DATE;
(B)
ANY BUYER NOTIFYING SELLERS IN WRITING OF A PATENT CLAIM ("PATENT
CLAIM NOTICE") WITHIN 30 DAYS OF A BUYER INDEMNIFIED PERSON RECEIVING SUCH
PATENT
49
CLAIM, UNLESS AND TO THE EXTENT ANY DELAY THEREAFTER DOES NOT MATERIALLY
PREJUDICE SELLERS' DEFENSE; PROVIDED, HOWEVER, THAT BUYER SHALL NOT BE PERMITTED
TO SEND ANY PATENT CLAIM NOTICES TO SELLERS MORE THAN 60 DAYS AFTER THE SECOND
ANNIVERSARY OF THE CLOSING DATE; AND
(C)
IN THE EVENT OF PATENT DAMAGES ARISING FROM A SETTLEMENT, SELLERS
MUST HAVE CONSENTED TO SUCH SETTLEMENT, SUCH CONSENT NOT TO BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
(II)
EACH BUYER, WITH RESPECT TO ITSELF, REPRESENTS AND WARRANTS TO
SELLERS THAT, TO THE ACTUAL KNOWLEDGE OF THE PERSONS ON SCHEDULE 8.2(C)(II), AS
OF THE DATE OF THIS AGREEMENT AND FOR THE PAST THREE YEARS PRIOR TO SUCH DATE,
SUCH BUYER HAS NOT RECEIVED ANY WRITTEN NOTICE OR ANY WRITTEN THREATENED CLAIM
THAT THE CONDUCT OF SUCH BUYER'S BUSINESS INFRINGES ANY THIRD PARTY PATENT OR
PATENT APPLICATION COVERING STENTS, DELIVERY SYSTEMS FOR STENTS AND/OR THE
METHOD OF INSERTION OR IMPLANTATION OF STENTS.
(III)
BUYERS (OR, AT BUYERS' ELECTION, THE APPLICABLE BUYER INDEMNIFIED
PERSON(S)) SHALL HAVE THE SOLE RIGHT TO CONTROL THE DEFENSE OF ANY PATENT CLAIMS
AT BUYERS' EXPENSE, AND SHALL HAVE THE RIGHT TO SETTLE ANY SUCH CLAIM, PROVIDED
THAT THE BUYER INDEMNIFIED PERSONS SHALL NOT ENTER INTO ANY SETTLEMENT OR PAY
ANY PATENT DAMAGES THAT SUBJECTS SELLERS TO INDEMNIFICATION LIABILITY HEREUNDER
WITHOUT THE SELLERS' PRIOR CONSENT, WHICH CONSENT SHALL