SUCH SUIT,
ACTION OR OTHER PROCEEDING INVOLVES AN ISSUE OR MATTER WHICH
25
COULD HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS, OPERATIONS OR ASSETS OF
THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY MAY ELECT, AT ITS OWN EXPENSE, TO
CONDUCT A SEPARATE DEFENSE THEREOF, BUT IN NO EVENT SHALL SUCH ELECTION BE
CONSTRUED AS A WAIVER OF ANY INDEMNIFICATION RIGHTS SUCH INDEMNIFIED PARTY MAY
HAVE UNDER THIS ARTICLE 10, AT LAW OR IN EQUITY, OR OTHERWISE.
IF THE
INDEMNIFYING PARTY DEFENDS THE SUIT OR ACTION, THE INDEMNIFIED PARTY MAY
PARTICIPATE IN (BUT NOT CONTROL) THE DEFENSE THEREOF AT ITS SOLE COST AND
EXPENSE; PROVIDED, HOWEVER, THAT THE INDEMNIFYING PARTY SHALL PAY THE REASONABLE
FEES AND COSTS OF ANY SEPARATE COUNSEL REQUIRED FOR THE INDEMNIFIED PARTY TO THE
EXTENT SUCH REPRESENTATION IS DUE TO A CONFLICT OF INTEREST BETWEEN THE PARTIES.
10.3
SETTLEMENTS.
NEITHER PARTY MAY SETTLE ANY CLAIM, OR ANY ACTION OR
SUIT RELATED TO A CLAIM TO A THIRD PARTY WITHOUT THE CONSENT OF THE OTHER PARTY,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED, IF
SUCH SETTLEMENT WOULD IMPOSE ANY MONETARY OBLIGATION ON THE OTHER PARTY OR
REQUIRE THE OTHER PARTY TO SUBMIT TO AN INJUNCTION OR OTHERWISE MATERIALLY LIMIT
THE OTHER PARTY'S RIGHTS TO CONDUCT ITS BUSINESS AS THEN CONDUCTED OR LIMIT A
PARTY'S RIGHTS UNDER THIS AGREEMENT, AND ANY PAYMENT MADE BY A PARTY IN SUCH A
SETTLEMENT WITHOUT OBTAINING SUCH CONSENT SHALL BE AT ITS OWN COST AND EXPENSE.
NOTWITHSTANDING THE FOREGOING, THE INDEMNIFYING PARTY WILL BE LIABLE UNDER THIS
ARTICLE 10 FOR ANY SETTLEMENT EFFECTED WITHOUT ITS CONSENT IF THE INDEMNIFYING
PARTY HAS REFUSED TO ACKNOWLEDGE LIABILITY FOR INDEMNIFICATION HEREUNDER AND/OR
DECLINES TO DEFEND THE INDEMNIFIED PARTY AGAINST ANY SUCH CLAIM, OR IN ANY
ACTION OR PROCEEDING RELATING TO A CLAIM AND IT IS DETERMINED BY DISPUTE
RESOLUTION PURSUANT TO ARTICLE 13 HEREOF THAT THE INDEMNIFYING PARTY WAS LIABLE
TO THE INDEMNIFIED PARTY FOR INDEMNIFICATION RELATED TO SUCH SETTLEMENT.
10.4
INSURANCE.
EACH PARTY SHALL MAINTAIN SUITABLE AMOUNTS OF INSURANCE
COVERAGE FOR CLINICAL TRIALS AND COMMERCIAL PRODUCT LIABILITY PROPORTIONATE TO
THE RISKS AND EXPOSURES AND STANDARD FOR THE INDUSTRY AND THE RESPECTIVE
TERRITORIES IN WHICH PRODUCTS ARE DEVELOPED AND COMMERCIALIZED.
THE PARTIES
SHALL WORK WITH ONE ANOTHER TO COORDINATE SUCH APPROPRIATE INSURANCE COVERAGE
FOR THE ACTIVITIES CONTEMPLATED BY THE PARTIES UNDER THIS AGREEMENT.
ARTICLE 11
TERM AND TERMINATION
11.1
TERM OF AGREEMENT.
THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE
EFFECTIVE DATE AND, UNLESS EARLIER TERMINATED PURSUANT TO OTHER PROVISIONS OF
THIS ARTICLE 11, SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL THE DATE WHICH IS
THE TENTH ANNIVERSARY DATE OF THE FIRST COMMERCIAL SALE OF THE PRODUCT IN THE
TERRITORY; PROVIDED, HOWEVER, THAT IN THE EVENT NK HAS OBTAINED BY SUCH TENTH
ANNIVERSARY DATE GOVERNMENTAL APPROVAL FOR THE SALE OF PRODUCT FOR AN ADDITIONAL
INDICATION OR NEW FORMULATION OR DOSAGE OR ACTIVE COMPONENT BASED ON THE
DEVELOPMENT CONDUCTED BY NK ACCORDING TO THE DECISION OF THE JSC, THIS AGREEMENT
SHALL CONTINUE