FEES, ARISING OUT OF ANY THIRD PARTY CLAIM, SUIT OR
PROCEEDING BROUGHT AGAINST KING OR ITS AFFILIATES TO THE EXTENT SUCH CLAIM,
SUIT, OR PROCEEDING IS BASED UPON A CLAIM ARISING OUT OF OR RELATING TO (W) ANY
ACTIONS OF THE DEPOMED SALES FORCE, INCLUDING ANY FALSE OR MISLEADING
REPRESENTATIONS TO PROFESSIONALS, CUSTOMERS OR OTHERS REGARDING KING OR THE
PRODUCT; (X) ANY AGREEMENT BETWEEN DEPOMED AND BLS; OR (Y) ANY CLAIM MADE BY ANY
PERSON THAT THE MANUFACTURE, USE OR SALE OF THE PRODUCT INFRINGES OR
MISAPPROPRIATES THE
40
PATENT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF SUCH PERSON, EXCEPT
WITH RESPECT TO ANY CLAIM RELATING TO THE KING TRADEMARKS; AND (Z) ANY PRODUCT
LIABILITY CLAIM MADE BY ANY PERSON WITH RESPECT TO THE PRODUCT, EXCEPT TO THE
EXTENT LIABILITY IS BASED ON A BREACH BY KING OF SECTION 4.2.
EACH PARTY AGREES
THAT IT SHALL PROMPTLY NOTIFY THE OTHER IN WRITING OF ANY SUCH CLAIM OR ACTION
AND GIVE THE INDEMNIFYING PARTY FULL INFORMATION AND ASSISTANCE IN CONNECTION
THEREWITH.
THE INDEMNIFYING PARTY SHALL HAVE THE SOLE RIGHT TO CONTROL THE
DEFENSE AND THE SOLE RIGHT TO SETTLE OR COMPROMISE ANY SUCH CLAIM OR ACTION,
EXCEPT THAT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY SHALL BE REQUIRED IN
CONNECTION WITH ANY SETTLEMENT OR COMPROMISE WHICH COULD (I) PLACE ANY
OBLIGATION ON OR REQUIRE ANY ACTION OF SUCH OTHER PARTY; (II) ADMIT OR IMPLY ANY
LIABILITY OR WRONGDOING OF SUCH OTHER PARTY; OR (III) ADVERSELY AFFECT THE
GOODWILL OR PUBLIC IMAGE OF SUCH OTHER PARTY.
NOTWITHSTANDING THE FOREGOING,
THE INDEMNIFIED PARTY MAY PARTICIPATE THEREIN THROUGH COUNSEL OF ITS CHOICE, BUT
THE COST OF SUCH COUNSEL SHALL BE BORNE SOLELY BY THE INDEMNIFIED PARTY.
THE
PROVISIONS OF THIS SECTION 11.1 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
FOR THREE YEARS (EXCEPT AS TO CLAIMS AS TO WHICH A PARTY HAS NOTIFIED THE OTHER
IN WRITING PRIOR TO THE THIRD ANNIVERSARY OF THE TERMINATION DATE OF THIS
AGREEMENT, IN WHICH EVENT, THE INDEMNIFYING PARTY'S OBLIGATIONS UNDER THIS
SECTION 11.1 SHALL SURVIVE WITH RESPECT TO ANY SUCH CLAIM UNTIL ITS RESOLUTION).
SECTION 11.2
CONSEQUENTIAL DAMAGES.
NEITHER KING NOR DEPOMED (WHICH
FOR THE PURPOSES OF THIS SECTION 11.2 SHALL INCLUDE THEIR RESPECTIVE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) SHALL HAVE ANY LIABILITY TO THE OTHER
FOR ANY PUNITIVE DAMAGES, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES, RELATING TO OR ARISING FROM THIS AGREEMENT, EVEN IF SUCH DAMAGES MAY
HAVE BEEN FORESEEABLE; PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY IN THE CASE
OF FRAUD OR WILLFUL MISCONDUCT.
ARTICLE XII
CONFIDENTIALITY AND PUBLICITY
SECTION 12.1
PROPRIETARY INFORMATION.
PURSUANT TO THIS AGREEMENT, A
PARTY RECEIVING PROPRIETARY INFORMATION FROM THE OTHER, DIRECTLY OR INDIRECTLY,
WILL TREAT SUCH PROPRIETARY INFORMATION AS CONFIDENTIAL, WILL USE SUCH
PROPRIETARY INFORMATION ONLY FOR THE PURPOSES OF THIS AGREEMENT AND WILL NOT
DISCLOSE, AND WILL TAKE ALL REASONABLE PRECAUTIONS TO PREVENT THE DISCLOSURE OF,
SUCH PROPRIETARY INFORMATION TO (A) ANY OF ITS OFFICERS, DIRECTORS, MANAGERS,
EQUITY HOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES OR CONSULTANTS
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