treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended.
48
KEEP THE OTHER PARTY ADVISED OF THE STATUS OF SUCH ACTION, SUIT, PROCEEDING OR
CLAIM AND THE DEFENSE THEREOF AND SHALL CONSIDER RECOMMENDATIONS MADE BY THE
OTHER PARTY WITH RESPECT THERETO.
THE INDEMNIFYING PARTY SHALL NOT BE LIABLE
FOR ANY LITIGATION COSTS OR EXPENSES INCURRED BY THE INDEMNIFIED PARTY WITHOUT
THE INDEMNIFYING PARTY'S WRITTEN CONSENT. THE INDEMNIFIED PARTY SHALL NOT SETTLE
ANY SUCH ACTION, SUIT, PROCEEDING OR CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF
THE INDEMNIFYING PARTY, WHICH SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR
CONDITIONED.
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED PARTY, THE
INDEMNIFYING PARTY SHALL NOT SETTLE ANY SUCH ACTION, SUIT, PROCEEDING OR CLAIM,
OR CONSENT TO ANY JUDGMENT IN RESPECT THEREOF, THAT DOES NOT INCLUDE A COMPLETE
AND UNCONDITIONAL RELEASE OF THE INDEMNIFIED PARTY FROM ALL LIABILITY WITH
RESPECT THERETO, THAT IMPOSES ANY LIABILITY OR OBLIGATION ON THE INDEMNIFIED
PARTY OR THAT ACKNOWLEDGES FAULT BY THE INDEMNIFIED PARTY.
11.4.
INSURANCE.
EACH PARTY SHALL MAINTAIN APPROPRIATE
PRODUCT LIABILITY INSURANCE (OR SELF-INSURANCE) WITH RESPECT TO ITS RESEARCH,
DEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION ACTIVITIES HEREUNDER IN SUCH
AMOUNT AS SUCH PARTY CUSTOMARILY MAINTAINS WITH RESPECT TO ITS OTHER PRODUCTS
FOR SIMILAR PATIENT POPULATIONS AND COMMERCIAL MARKETS.
EACH PARTY SHALL
MAINTAIN SUCH INSURANCE FOR SO LONG AS IT CONTINUES TO CONDUCT SUCH ACTIVITIES
HEREUNDER, AND FOR SO LONG AS SUCH PARTY CUSTOMARILY MAINTAINS INSURANCE WITH
RESPECT TO SALES OF ITS OTHER PRODUCTS FOR SIMILAR PATIENT POPULATIONS AND
COMMERCIAL MARKETS.
11.5.
NO CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL EITHER
SYNTA OR ROCHE BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE
OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT BASED ON CONTRACT, TORT
OR ANY OTHER LEGAL THEORY.
NOTHING IN THIS SECTION 11.5 IS INTENDED TO LIMIT OR
RESTRICT (A) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER
THIS ARTICLE XI, (B) REMEDIES AVAILABLE TO EITHER PARTY WITH RESPECT TO A BREACH
OF ARTICLE IX OR (C) REMEDIES AVAILABLE TO EITHER PARTY WITH RESPECT TO A BREACH
OF SECTION 6.6.
ARTICLE XII -TERM AND TERMINATION
12.1.
TERM.
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON
THE EFFECTIVE DATE AND, UNLESS EARLIER TERMINATED AS PROVIDED IN THIS
ARTICLE XII, SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL THE EXPIRATION OF THE
ROYALTY TERM FOR ALL LICENSED PRODUCTS (THE "TERM").
12.2.
TERMINATION FOR NO ACTIVITY.
SYNTA MAY TERMINATE
THIS AGREEMENT IN ITS ENTIRETY, EFFECTIVE IMMEDIATELY UPON GIVING OF WRITTEN
NOTICE THEREOF TO ROCHE, IN THE EVENT THAT, DURING ANY [***] ([***]) [***]
PERIOD AFTER THE RESEARCH TERM AND PRIOR TO FIRST COMMERCIAL SALE OF ANY
LICENSED PRODUCT ANYWHERE IN THE TERRITORY, NO DEVELOPMENT HAS BEEN CONDUCTED BY
OR ON BEHALF OF ROCHE WITH RESPECT TO ANY LICENSED COMPOUND, UNLESS SUCH ABSENCE
OF DEVELOPMENT OCCURS AS A RESULT OF AN ACTION BY A REGULATORY AUTHORITY
PROHIBITING CLINICAL DEVELOPMENT OF ALL LICENSED PRODUCTS, IN WHICH CASE THE
[***] ([***]) [***] TIME PERIOD WILL BE RESET TO BEGIN AS OF THE