OF THE
RECIPIENT; (III) DISCLOSED IN GOOD FAITH TO THE RECIPIENT BY A THIRD PARTY
ENTITLED TO MAKE SUCH DISCLOSURE; OR (IV) INDEPENDENTLY DEVELOPED BY OR ON
BEHALF OF THE RECIPIENT WITHOUT RECOURSE TO THE DISCLOSURE HEREIN AS DOCUMENTED
IN WRITING.
NOTWITHSTANDING THE AFORESAID, THE RECIPIENT MAY DISCLOSE
PROPRIETARY INFORMATION TO GOVERNMENTAL AGENCIES AS REQUIRED BY LAW, AND TO
VENDORS AND CLINICAL INVESTIGATORS HAVING A NEED TO KNOW AND AS MAY BE NECESSARY
FOR THE RECIPIENT TO PERFORM ITS OBLIGATIONS HEREUNDER, BUT ONLY IF SUCH
DISCLOSURE TO VENDORS AND, WHERE
9
PRACTICABLE, TO CLINICAL INVESTIGATORS IS IN ACCORDANCE WITH A WRITTEN AGREEMENT
IMPOSING ESSENTIALLY THE SAME OBLIGATION OF CONFIDENTIALITY ON SUCH PARTY AS IS
IMPOSED UPON THE RECIPIENT HEREUNDER.
FOR AVOIDANCE OF DOUBT, THIS SECTION
SHALL NOT LIMIT OR REPLACE THE OBLIGATIONS OF THE PARTIES UNDER SECTION 8 OF THE
LICENSE AGREEMENT.
9.
REPRESENTATIONS AND WARRANTIES
EACH PARTY HEREBY REPRESENTS AND WARRANTS TO THE OTHER PARTY AS FOLLOWS:
(A)
IT IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION.
IT HAS ALL REQUISITE POWER AND AUTHORITY TO
CARRY ON ITS BUSINESS AND TO OWN AND OPERATE ITS PROPERTIES AND ASSETS.
THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED
BY ITS BOARD OF DIRECTORS.
SUCH PARTY HAS OBTAINED ALL AUTHORIZATIONS, CONSENTS
AND APPROVALS, GOVERNMENTAL OR OTHERWISE, NECESSARY FOR THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, AND TO OTHERWISE PERFORM SUCH PARTY'S OBLIGATIONS
UNDER THIS AGREEMENT.
(B)
THERE IS NO PENDING OR, TO ITS
KNOWLEDGE, THREATENED LITIGATION INVOLVING IT WHICH WOULD HAVE ANY MATERIAL
ADVERSE EFFECT ON THIS AGREEMENT OR ON ITS ABILITY TO PERFORM ITS OBLIGATIONS
HEREUNDER.
(C)
THERE IS NO INDENTURE, CONTRACT,
OR AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND WHICH PROHIBITS OR
WOULD PROHIBIT THE EXECUTION AND DELIVERY BY IT OF THIS AGREEMENT OR THE
PERFORMANCE OR OBSERVANCE BY IT OF ANY MATERIAL TERM OR CONDITION OF THIS
AGREEMENT.
10.
INDEMNIFICATION
10.1
INDEMNIFICATION.
EACH PARTY WILL DEFEND, AT ITS OWN EXPENSE,
INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND ITS AFFILIATES FROM AND AGAINST
ANY AND ALL DAMAGES, LIABILITIES, LOSSES, COSTS, AND EXPENSES, INCLUDING
ATTORNEYS FEES (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY CLAIM, SUIT OR
PROCEEDING ("CLAIM") BROUGHT AGAINST THE OTHER PARTY (OR PAID IN SETTLEMENT OF
ANY THREATENED CLAIM) TO THE EXTENT SUCH CLAIM OR THREATENED CLAIM IS BASED
UPON, ARISES OUT OF, OR RELATES TO (I) ANY BREACH OR VIOLATION OF, OR FAILURE TO
PERFORM, ANY COVENANT OR AGREEMENT MADE BY SUCH INDEMNIFYING PARTY IN THIS
AGREEMENT, UNLESS WAIVED IN WRITING BY THE INDEMNIFIED PARTY; (II) ANY BREACH OF
THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH INDEMNIFYING PARTY IN THIS
AGREEMENT (IGNORING FOR PURPOSES OF THIS SECTION 10.1 ANY KNOWLEDGE QUALIFIERS
INCLUDED IN ANY SUCH REPRESENTATIONS OR WARRANTIES); OR (III) THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE INDEMNIFYING PARTY, EXCEPT (UNDER ANY OF (I) AND (II))
TO THE EXTENT ARISING OUT OF THE BREACH, VIOLATION,