EXCEPT FOR THE OBLIGATIONS UNDER THIS
SECTION 7.3 AND ARTICLE VIII, AND THERE SHALL BE NO LIABILITY OF ANY PARTY
HERETO TO ANY OTHER PARTY AND EACH PARTY HERETO SHALL BEAR ITS OWN FEES, COSTS
AND EXPENSES INCURRED BY IT OR ON ITS BEHALF IN CONNECTION WITH THE NEGOTIATION,
PREPARATION, EXECUTION AND PERFORMANCE OF THIS AGREEMENT AND NO PARTY SHALL HAVE
ANY FURTHER OBLIGATION TO ANY OTHER PARTY; PROVIDED, HOWEVER, THAT TERMINATION
OF THIS AGREEMENT BY THE PURCHASER OR THE COMPANY PURSUANT TO CLAUSE (C), (D) OR
(E) OF SECTION 7.1, RESPECTIVELY, BY REASON OF ANY BREACH OF THIS AGREEMENT
SHALL NOT RELIEVE THE DEFAULTING OR BREACHING PARTY (THE "BREACHING PARTY"),
WHETHER OR NOT IT IS THE TERMINATING PARTY, OF LIABILITY FOR DIRECT DAMAGES
ACTUALLY INCURRED BY THE OTHER PARTY, NOT INCLUDING CONSEQUENTIAL, INCIDENTAL
AND/OR SPECIAL DAMAGES, AS A RESULT OF ANY BREACH OF THIS AGREEMENT BY THE
BREACHING PARTY.
ARTICLE VIII.
MISCELLANEOUS
8.1
ASSIGNMENT.
NONE OF THIS AGREEMENT OR ANY OF
THE RIGHTS OR OBLIGATIONS HEREUNDER MAY BE ASSIGNED BY THE COMPANY WITHOUT THE
PRIOR WRITTEN CONSENT OF THE PURCHASER, OR BY THE PURCHASER WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE COMPANY AGREES TO THE ASSIGNMENT BY THE PURCHASER OF ITS RIGHTS
PURSUANT TO THIS AGREEMENT TO ANY AFFILIATE OR SUBSIDIARY THEREOF,
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ANY PARTNERSHIP CONTROLLED THEREBY, ANY SUCCESSOR IN INTEREST THERETO AND THE
COMPANY AGREES TO EXECUTE ANY AND ALL APPROPRIATE AGREEMENTS OR INSTRUMENTS THAT
THE PURCHASER MAY REASONABLY REQUEST IN ORDER TO EFFECT OR EVIDENCE SUCH
ASSIGNMENT OR CONSENT; PROVIDED, HOWEVER, THAT SUCH ASSIGNMENT OR CONSENT SHALL
NOT RELIEVE THE PURCHASER OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
SUBJECT TO
THE FOREGOING, THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF
THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND NO OTHER
PERSON SHALL HAVE ANY RIGHT, BENEFIT OR OBLIGATION HEREUNDER.
8.2
NOTICES.
ALL NOTICES, CONSENTS, WAIVERS,
REQUESTS, DEMANDS AND OTHER COMMUNICATIONS WHICH ARE REQUIRED OR MAY BE GIVEN
UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY
GIVEN WHEN RECEIVED IF PERSONALLY DELIVERED; WHEN TRANSMITTED IF TRANSMITTED BY
TELECOPY UPON RECEIPT OF TELEPHONIC OR ELECTRONIC CONFIRMATION, PROVIDED THAT A
COPY IS MAILED BY REGULAR MAIL, RETURN RECEIPT REQUESTED; THE DAY AFTER IT IS
SENT, IF SENT FOR NEXT DAY DELIVERY TO A DOMESTIC ADDRESS BY RECOGNIZED
OVERNIGHT DELIVERY SERVICE (E.G., FEDERAL EXPRESS); AND UPON RECEIPT, IF SENT BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED.
IN EACH CASE NOTICE
SHALL BE SENT TO:
if to Purchaser, to:
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana
46285
Fax:
Telephone:
Attention:
General Counsel
with a copy to (which shall not constitute notice to Purchaser):
Latham & Watkins LLP
885 Third Avenue
New York, New York
10022
Fax:
Telephone:
Attention:
if to the Company, to:
United Therapeutics Corporation
1110 Spring Street
Silver Spring, Maryland
20910
Fax:
Telephone:
Attention:
Chief Executive Officer
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with a copy to:
United Therapeutics