THIS
AGREEMENT; PROVIDED HOWEVER, THAT ISIS' OBLIGATIONS PURSUANT TO THIS
SECTION 6.1(B) WILL NOT APPLY TO THE EXTENT THAT SUCH CLAIMS RESULT FROM (A) THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE TEVA INDEMNITEES; (B) A
BREACH BY TEVA OF ITS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT, OR (C) ISIS' PERFORMANCE OF DEVELOPMENT OR OTHER ACTIVITIES WITH
RESPECT TO VLA4 COMPOUNDS/PRODUCTS ON BEHALF OF TEVA IN ACCORDANCE WITH TEVA'S
WRITTEN INSTRUCTIONS AND SPECIFICATIONS.
7.2
PROCEDURE.
A PARTY WILL GIVE THE OTHER PARTY NOTICE OF ANY CLAIM
UPON WHICH SUCH PARTY (THE "INDEMNIFIED PARTY") INTENDS TO BASE AN
INDEMNIFICATION CLAIM (AN "INDEMNITY CLAIM").
THE INDEMNIFYING PARTY HAS THE
RIGHT TO CONTROL THE DEFENSE, SETTLEMENT OR DISPOSITION OF ANY INDEMNITY CLAIM
USING COUNSEL OF ITS CHOICE AND ON TERMS THAT IT DEEMS ARE APPROPRIATE, EXCEPT
THAT INDEMNIFIED PARTY MAY, AT ITS OWN EXPENSE, PARTICIPATE IN THAT DEFENSE,
SETTLEMENT OR DISPOSITION USING COUNSEL OF ITS OWN CHOICE.
WITH RESPECT TO THE
DEFENSE, SETTLEMENT OR DISPOSITION OF AN INDEMNIFIED CLAIM, THE INDEMNIFIED
PARTY WILL PROVIDE THE INDEMNIFYING PARTY, UPON ITS REQUEST, WITH REASONABLE
ASSISTANCE AND COOPERATION WITH RESPECT TO THE INDEMNIFIED CLAIM.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, INDEMNIFYING PARTY MAY NOT CEASE TO
DEFEND, SETTLE OR OTHERWISE DISPOSE OF ANY INDEMNITY CLAIM WITHOUT THE
INDEMNIFIED PARTY'S PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE UNREASONABLY
WITHHELD, IF, AS A RESULT THEREOF, THE INDEMNIFIED PARTY WOULD BECOME SUBJECT TO
INJUNCTIVE OR OTHER EQUITABLE RELIEF.
7.3
LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL ISIS' TOTAL LIABILITY UNDER
THIS AGREEMENT (INCLUDING, BUT NOT
10
limited to, liability under Section 7.1) exceed [***]; provided, however, that
the foregoing limitation shall not apply in the case of (a) any knowing
misrepresentation by ISIS under this Agreement, or (b) any knowing and
intentional breach of any covenant made by ISIS under this Agreement.
8.
TERM AND TERMINATION.
8.1
TERM.
THIS AGREEMENT WILL EXPIRE UPON THE EXPIRATION OR
TERMINATION OF BOTH THE AMENDED AND RESTATED ISIS/ATL AGREEMENT AND THE ATL/TEVA
AGREEMENT.
8.2
INSOLVENCY OR BANKRUPTCY.
ALL RIGHTS AND LICENSES GRANTED UNDER OR
PURSUANT TO THIS AGREEMENT BY ISIS OR TEVA ARE, AND WILL OTHERWISE BE DEEMED TO
BE, FOR PURPOSES OF SECTION 365(N) OF THE U.S. BANKRUPTCY CODE, LICENSES OF
RIGHT TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION 101 OF THE U.S.
BANKRUPTCY CODE.
THE PARTIES AGREE THAT THE PARTIES, AS LICENSEES OF SUCH
RIGHTS UNDER THIS AGREEMENT, WILL RETAIN AND MAY FULLY EXERCISE ALL OF THEIR
RIGHTS AND ELECTIONS UNDER THE U.S. BANKRUPTCY CODE.
THE PARTIES FURTHER AGREE
THAT, IN THE EVENT OF THE COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY OR AGAINST
EITHER PARTY UNDER THE U.S. BANKRUPTCY CODE, THE PARTY HERETO WHICH IS NOT A
PARTY TO SUCH PROCEEDING WILL BE ENTITLED TO A COMPLETE DUPLICATE OF (OR
COMPLETE ACCESS TO, AS APPROPRIATE) ANY SUCH INTELLECTUAL PROPERTY AND ALL
EMBODIMENTS OF SUCH INTELLECTUAL PROPERTY, AND SAME, IF NOT ALREADY IN THEIR
POSSESSION, WILL