THE JURISDICTION OF
ITS ORGANIZATION, IS QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION IN EACH JURISDICTION IN WHICH THE PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER REQUIRES SUCH QUALIFICATION AND HAS ALL REQUISITE POWER
AND AUTHORITY, CORPORATE OR OTHERWISE, TO CONDUCT ITS BUSINESS AS NOW BEING
CONDUCTED, TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO EXECUTE, DELIVER AND
PERFORM THIS AGREEMENT.
10.3.
AUTHORIZATION.
THE EXECUTION, DELIVERY AND
PERFORMANCE BY IT OF THIS AGREEMENT (A) HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION AND (B) DO NOT AND WILL NOT VIOLATE ANY PROVISION OF
ANY AGREEMENT, LAW, RULE, REGULATION, ORDER, WRIT, JUDGMENT, INJUNCTION, DECREE,
DETERMINATION OR AWARD PRESENTLY IN EFFECT HAVING APPLICABILITY TO IT OR ANY
PROVISION OF ITS CHARTER DOCUMENTS.
10.4.
NO INCONSISTENT OBLIGATION.
IT IS NOT UNDER ANY
OBLIGATION TO ANY PERSON, OR ENTITY, CONTRACTUAL OR OTHERWISE, THAT IS
CONFLICTING OR INCONSISTENT IN ANY RESPECT WITH THE TERMS OF THIS AGREEMENT OR
THAT WOULD IMPEDE THE DILIGENT AND COMPLETE FULFILLMENT OF ITS OBLIGATIONS
HEREUNDER AND THAT IT HAS ALL POWER AND AUTHORITY UNDER ALL INSTRUMENTS OR
AGREEMENTS TO WHICH IT IS A PARTY TO ENTER INTO THIS AGREEMENT AND TO PERFORM
ITS OBLIGATIONS HEREUNDER.
10.5.
WARRANTY DISCLAIMER.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO ANY
TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT
AND HEREBY DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
22
ARTICLE 11:
INDEMNITY
11.1.
CLAIM.
FOR PURPOSES OF THIS ARTICLE 11 "CLAIM"
SHALL MEAN ANY AND ALL THIRD PARTY SUITS, ACTIONS, CLAIMS, DEMANDS, LIABILITIES,
EXPENSES, AND/OR LOSSES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS'
FEES, BASED UPON, ARISING IN CONNECTION WITH, OR RESULTING FROM THE DEVELOPMENT,
CLINICAL STUDY IN HUMANS, OR COMMERCIALIZATION OF THE THROMBUS COMPOUND(S)
AND/OR LICENSED PRODUCTS, BUT EXCLUDING ANY SUITS, ACTIONS, CLAIMS, DEMANDS,
LIABILITIES, EXPENSES, AND/OR LOSSES BASED UPON, ARISING IN CONNECTION WITH, OR
RESULTING FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY OR THIRD PARTIES.
11.2.
SCHERING INDEMNITY OBLIGATIONS.
SUBJECT TO THE
PROVISIONS OF SECTIONS 11.3 AND 11.4, SCHERING AGREES TO DEFEND, INDEMNIFY AND
HOLD EPIX, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS HARMLESS FROM (EACH, AN "EPIX INDEMNITEE") ALL CLAIMS AGAINST EPIX,
ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS
SOLELY BASED UPON, ARISING IN CONNECTION WITH OR RESULTING FROM (A) ACTUAL OR
ASSERTED VIOLATIONS OF ANY APPLICABLE LAW OR REGULATION BY SCHERING, ITS
AFFILIATES, SUBLICENSEES, OR AGENTS BY VIRTUE OF WHICH ANY THROMBUS COMPOUND(S)
OR SCHERING LICENSED PRODUCT IS DEVELOPED, DISTRIBUTED OR SOLD BY SCHERING SHALL
BE ALLEGED OR DETERMINED TO BE ADULTERATED, MISBRANDED, MISLABELED OR OTHERWISE
NOT IN COMPLIANCE WITH SUCH APPLICABLE LAW OR REGULATION, (B) THE MANUFACTURE,
USE, SALE, DISTRIBUTION OF A THROMBUS COMPOUND(S) OR SCHERING LICENSED PRODUCT
BY SCHERING, ITS AFFILIATES, SUBLICENSEES, OR AGENTS; (C) ANY NEGLIGENT OR
WILLFUL OR INTENTIONAL ACT OR OMISSION TO ACT BY SCHERING, ITS