AS CONTRACTUAL RIGHTS OF BUYER AND SELLER.
5.2
INDEMNIFICATION AND PAYMENT OF DAMAGES BY
SELLER AND PARENT.
SELLER AND PARENT SHALL JOINTLY AND SEVERALLY INDEMNIFY,
DEFEND AND HOLD HARMLESS BUYERS, XCEL JAPAN, AND
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THEIR RESPECTIVE REPRESENTATIVES, STOCKHOLDERS, CONTROLLING PERSONS, AND
AFFILIATES (COLLECTIVELY, THE "INDEMNIFIED PERSONS") FOR, AND WILL PAY TO THE
INDEMNIFIED PERSONS THE AMOUNT OF, ANY LOSS, LIABILITY, CLAIM, DAMAGE (INCLUDING
INCIDENTAL AND CONSEQUENTIAL DAMAGES), EXPENSE (INCLUDING COSTS OF INVESTIGATION
AND DEFENSE AND REASONABLE ATTORNEYS' FEES) OR DIMINUTION OF VALUE, WHETHER OR
NOT INVOLVING A THIRD-PARTY CLAIM (COLLECTIVELY, "DAMAGES"), ARISING, DIRECTLY
OR INDIRECTLY, FROM OR IN CONNECTION WITH:
(A)
ANY BREACH OF ANY REPRESENTATION OR
WARRANTY MADE BY SELLER OR PARENT IN THIS AGREEMENT, THE DISCLOSURE SCHEDULE, OR
ANY OTHER CERTIFICATE OR DOCUMENT DELIVERED BY SELLER PURSUANT TO THIS
AGREEMENT;
(B)
ANY BREACH BY SELLER OR PARENT OF ANY
COVENANT OR OBLIGATION OF SELLER OR PARENT IN THIS AGREEMENT;
(C)
THE OPERATION OF THE DIGITRAN BUSINESS BY
SELLER PRIOR TO THE CLOSING;
(D)
ANY CLAIM BY ANY PERSON FOR BROKERAGE OR
FINDER'S FEES OR COMMISSIONS OR SIMILAR PAYMENTS BASED UPON ANY AGREEMENT OR
UNDERSTANDING ALLEGED TO HAVE BEEN MADE BY SUCH PERSON WITH SELLER (OR ANY
PERSON ACTING ON ITS BEHALF) IN CONNECTION WITH ANY OF THE CONTEMPLATED
TRANSACTIONS;
(E)
THE FAILURE OF SELLER TO ASSUME, PAY,
PERFORM AND DISCHARGE THE RETAINED LIABILITIES;
(F)
ANY FAILURE TO COMPLY WITH THE LAWS OF
ANY JURISDICTION RELATING TO BULK TRANSFERS WHICH MAY BE APPLICABLE IN
CONNECTION WITH THE TRANSFER OF THE PURCHASED ASSETS TO BUYER;
(G)
ANY LIABILITIES CAUSED BY ANY PRODUCT SOLD
OR DISTRIBUTED BY XCEL JAPAN PRIOR TO THE CLOSING, INCLUDING BUT NOT LIMITED TO,
LIABILITIES FOR DEATH, BODILY INJURY OR PROPERTY DAMAGE, AND ANY LIABILITY FOR
RECALLS OF ANY PRODUCTS PRODUCED SOLD OR DISTRIBUTED PRIOR TO THE CLOSING;
(H)
ANY LIABILITIES ATTRIBUTABLE TO (I) ANY AND
ALL TAXES (OR THE NON-PAYMENT THEREOF) OF XCEL JAPAN FOR ALL PERIODS ENDING ON
OR BEFORE THE CLOSING DATE, OR (II) ANY AND ALL TAXES OF ANY PERSON IMPOSED ON
XCEL JAPAN AS A TRANSFEREE OR SUCCESSOR, BY CONTRACT OR PURSUANT TO ANY LEGAL
REQUIREMENT, WHICH TAXES RELATE TO AN EVENT OR TRANSACTION OCCURRING BEFORE THE
CLOSING;
(I)
THE POTENTIAL XCEL JAPAN ASBESTOS
LIABILITY;
(J)
THE POTENTIAL RENT DISPUTE LIABILITY;
(K)
THE POTENTIAL AQMD PERMIT LIABILITY;
(L)
THE POTENTIAL SIERRA CIRCUITS LIABILITY;
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(M)
THE POTENTIAL CLEAN ROOM LIABILITY;
(N)
THE POTENTIAL BKK ENVIRONMENTAL LIABILITY;
(O)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
SECTION 7.7, ANY LIABILITIES RELATED TO ACTIONS TAKEN BY GALLANT THEIN SERVING
AS STATUTORY AUDITOR OF XCEL JAPAN PRIOR TO THE CLOSING;
(P)
ANY LIABILITIES RELATED TO ANY CLAIM FOR ANY
TAX OBLIGATIONS OF SELLER TO THE STATE OF NEW JERSEY NOW OR HEREAFTER DETERMINED
TO BE DUE TO THE STATE OF NEW JERSEY; AND
(Q)
THE LOST STOCK CERTIFICATE FOR THE XCEL
JAPAN SHARES.
5.3
INDEMNIFICATION AND PAYMENT OF DAMAGES BY
BUYERS.
BUYERS SHALL JOINTLY AND SEVERALLY INDEMNIFY AND HOLD HARMLESS SELLER,
AND WILL PAY TO