EXTENT THAT THE FAILURE TO GIVE NOTICE DID NOT RESULT IN HARM
TO THE INDEMNIFYING PARTY;
(C)
NO INDEMNIFYING PARTY, IN THE DEFENSE OF ANY SUCH CLAIM. DEMAND OR
LITIGATION, SHALL, EXCEPT WITH THE APPROVAL OF EACH INDEMNIFIED PARTY WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONSENT TO ENTRY OF ANY JUDGMENT OR
ENTER INTO ANY SETTLEMENT WHICH (I)
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An
unredacted version of this
exhibit has been filed separately with the Commission.
WOULD RESULT IN INJUNCTIVE OR OTHER RELIEF BEING IMPOSED AGAINST THE INDEMNIFIED
PARTY; OR (II) DOES NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF THE GIVING BY
THE CLAIMANT OR PLAINTIFF TO SUCH INDEMNIFIED PARTY OF A RELEASE FROM ALL
LIABILITY IN RESPECT TO SUCH CLAIM OR LITIGATION.
THE INDEMNIFIED PARTY SHALL
HAVE NO RIGHT TO SETTLE OR COMPROMISE ANY SUCH CLAIM, DEMAND OR LITIGATION
WITHOUT THE INDEMNIFYING PARTY'S PRIOR WRITTEN CONSENT; AND
(D)
EACH INDEMNIFIED PARTY SHALL FURNISH SUCH INFORMATION AND
ASSISTANCE REGARDING ITSELF OR THE CLAIM OR DEMAND IN QUESTION AS AN
INDEMNIFYING PARTY MAY REASONABLY REQUEST IN WRITING AND SHALL BE REASONABLY
REQUIRED IN CONNECTION WITH THE DEFENSE OF SUCH CLAIM, DEMAND OR LITIGATION
RESULTING THEREFROM.
12.4
LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO THIRD-PARTY
ACTIONS, SUITS, CLAIMS OR DEMANDS SUBJECT TO INDEMNIFICATION PURSUANT TO
SECTIONS 12.1 AND 12.2 ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR RESULTING FROM THIS AGREEMENT.
12.5
INSURANCE.
EACH PARTY SHALL MAINTAIN AND KEEP IN FORCE FOR THE
TERM OF THIS AGREEMENT INSURANCE THAT SHALL BE ADEQUATE TO COVER ITS
INDEMNIFICATION OBLIGATIONS HEREUNDER AND THAT IS COMMENSURATE WITH THE
INSURANCE THAT SUCH PARTY MAINTAINS WITH RESPECT TO OTHER COMPARABLE
PHARMACEUTICAL OR BIOTECHNOLOGY PRODUCTS IT IS DEVELOPING AND/OR
COMMERCIALIZING.
IT IS UNDERSTOOD THAT SUCH INSURANCE SHALL NOT BE CONSTRUED TO
LIMIT A PARTY'S LIABILITY WITH RESPECT TO SUCH INDEMNIFICATION OBLIGATIONS.
SUCH INSURANCE SHALL BE PLACED WITH A FIRST CLASS INSURANCE CARRIER WITH AT
LEAST A BBB RATING BY STANDARD & POOR.
ARTICLE XIII - MISCELLANEOUS PROVISIONS
13.1
WAIVER.
NO PROVISION OF THE AGREEMENT MAY BE WAIVED EXCEPT IN
WRITING BY BOTH PARTIES HERETO.
NO FAILURE OR DELAY BY EITHER PARTY HERETO IN
EXERCISING ANY RIGHT OR REMEDY HEREUNDER OR UNDER APPLICABLE LAW WILL OPERATE AS
A WAIVER THEREOF, OR A WAIVER OF THAT OR ANY OTHER RIGHT OR REMEDY ON ANY
SUBSEQUENT OCCASION.
13.2
FORCE MAJEURE.
NEITHER PARTY WILL BE IN BREACH HEREOF BY REASON
OF ITS DELAY IN THE PERFORMANCE OF OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS
HEREUNDER, IF THAT DELAY OR FAILURE IS CAUSED BY FIRE, FLOODS, EMBARGOES, WAR,
TERRORISM, INSURRECTIONS, RIOTS, CIVIL COMMOTIONS, STRIKES, LOCKOUTS OR OTHER
LABOR DISTURBANCES, SABOTAGE, ACTS OF GOD, OMISSIONS OR DELAYS IN ACTING BY ANY
GOVERNMENTAL AUTHORITY, ACTS OF A GOVERNMENT OR AGENCY THEREOF OR JUDICIAL
ORDERS OR DECREES, OR ANY SIMILAR CAUSE BEYOND ITS CONTROL AND WITHOUT ITS FAULT
OR NEGLIGENCE; PROVIDED,
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