ANY OF
THEM IN CONNECTION WITH INVESTIGATING, MITIGATING OR DEFENDING ANY SUCH LOSS.
TWC SHALL NOT BE REQUIRED TO INDEMNIFY LICENSOR HEREUNDER TO THE EXTENT THAT
LICENSOR IS IN BREACH OF THIS AGREEMENT, PROVIDED THAT TWC IS NOT IN BREACH OF
THIS AGREEMENT.
(C)
PROMPTLY AFTER RECEIPT BY A PARTY OF NOTICE
OF THE COMMENCEMENT OF ANY ACTION, SUIT, PROCEEDING OR INVESTIGATION IN RESPECT
OF WHICH A CLAIM FOR INDEMNIFICATION MAY BE MADE HEREUNDER BY IT OR ITS
AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS, SUCH PARTY
WILL GIVE WRITTEN NOTICE THEREOF TO THE OTHER PARTY; BUT THE FAILURE TO SO
NOTIFY THE OTHER PARTY WILL NOT RELIEVE THE OTHER PARTY FROM ANY LIABILITY OR
OBLIGATION WHICH THE OTHER PARTY MAY HAVE TO ANY INDEMNIFIED PERSON
(I) OTHERWISE THAN UNDER THIS AGREEMENT OR (II) UNDER THIS AGREEMENT EXCEPT TO
THE EXTENT OF ANY MATERIAL PREJUDICE TO THE OTHER PARTY RESULTING FROM SUCH
FAILURE.
IF ANY SUCH ACTION, SUIT, PROCEEDING OR INVESTIGATION IS BROUGHT
AGAINST AN
8
Portions of this Exhibit have been redacted pursuant to a request for
confidential treatment under Rule 24b-2 of the General Rules and Regulations
under the Securities Exchange Act.
Omitted information, marked "[***]" in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.
INDEMNIFIED PERSON, THE INDEMNIFYING PARTY WILL BE ENTITLED TO PARTICIPATE
THEREIN AND, IF IT WISHES TO ASSUME THE DEFENSE THEREOF WITH COUNSEL
SATISFACTORY TO THE INDEMNIFIED PERSON (WHO SHALL NOT, EXCEPT WITH THE CONSENT
OF THE INDEMNIFIED PERSON, BE COUNSEL TO THE INDEMNIFIED PERSON) AND GIVES
WRITTEN NOTICE TO THE INDEMNIFIED PERSON OF ITS ELECTION SO TO ASSUME THE
DEFENSE THEREOF WITHIN FIFTEEN (15) DAYS AFTER NOTICE SHALL HAVE BEEN GIVEN TO
IT BY THE INDEMNIFIED PERSON PURSUANT TO THE PRECEDING SENTENCE, WILL BE
ENTITLED TO ASSUME THE DEFENSE THEREOF.
EACH INDEMNIFIED PERSON WILL BE
OBLIGATED TO COOPERATE REASONABLY WITH THE INDEMNIFYING PARTY, AT THE EXPENSE OF
THE INDEMNIFYING PARTY, IN CONNECTION WITH SUCH DEFENSE AND THE COMPROMISE OR
SETTLEMENT OF ANY SUCH ACTION, SUIT, PROCEEDING OR INVESTIGATION.
(D)
NEITHER PARTY SHALL, FOR ANY REASON OR UNDER
ANY LEGAL THEORY, BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, REVENUES, DATA OR SERVICES,
REGARDLESS OF WHETHER SUCH DAMAGES OR LOSS WAS FORESEEABLE AND REGARDLESS OF
WHETHER IT WAS INFORMED OR HAD DIRECT OR IMPUTED KNOWLEDGE OF THE POSSIBILITY OF
SUCH DAMAGES OR LOSS IN ADVANCE.
(E)
ALL RIGHTS, POWERS AND REMEDIES AFFORDED TO
A PARTY HEREUNDER, BY LAW, IN EQUITY OR OTHERWISE SHALL BE CUMULATIVE (AND NOT
ALTERNATIVE) AND SHALL NOT PRECLUDE ASSERTION OR SEEKING BY A PARTY OF ANY OTHER
RIGHTS OR REMEDIES.
12.
TERMINATION.
(A)
IF A PARTY (I) BECOMES BANKRUPT OR
INSOLVENT, HOWEVER EVIDENCED, (II) ADMITS IN WRITING ITS INABILITY TO PAY ITS
DEBTS WHEN DUE, (III) MAKES A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS,
(IV) HAS APPOINTED, VOLUNTARILY OR INVOLUNTARILY, ANY TRUSTEE, RECEIVER,
CUSTODIAN OR CONSERVATOR WITH RESPECT