CAUSE OF ACTION FOR BREACH OF THE AGREEMENT OR THE DETAILED
AGREEMENT, SHALL NOT EXCEED (I) PRIOR TO FDA APPROVAL, THE TOTAL CHARGES PAID BY
COMPANY TO LONZA UNDER THE AGREEMENT OR THE DETAILED AGREEMENT AND (II) FROM AND
AFTER FDA APPROVAL, THE GREATER OF (A) THE TOTAL CHARGES PAID BY COMPANY TO
LONZA DURING THE TWENTY-FOUR (24) MONTHS PRECEDING THE EVENT GIVING
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
15.
EXECUTION COPY
RISE TO LIABILITY OR (B) FIVE (5) MILLION DOLLARS (COLLECTIVELY, THE "DOLLAR
CAP"). TO THE EXTENT THAT THIS CLAUSE CONFLICTS WITH ANY OTHER CLAUSE, THIS
CLAUSE SHALL TAKE PRECEDENCE OVER SUCH CONFLICTING CLAUSE, EXCEPT TO THE EXTENT
OTHERWISE PROVIDED IN THIS PARAGRAPH 10 BELOW. IF APPLICABLE LAW PREVENTS
ENFORCEMENT OF THIS CLAUSE, THEN THIS CLAUSE SHALL BE DEEMED MODIFIED TO PROVIDE
THE MAXIMUM PROTECTION TO LONZA AS IS ALLOWABLE UNDER APPLICABLE LAW. THE DOLLAR
CAP SHALL NOT APPLY TO ANY LIABILITY ARISING FROM ANY OBLIGATION OF
INDEMNIFICATION PROVIDED IN PARAGRAPH 9 ABOVE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OF ITS AFFILIATES
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS OR GOODWILL)
SUFFERED OR INCURRED BY SUCH OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH
ANY BREACH OF THE AGREEMENT OR THE DETAILED AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL NOT APPLY TO (I) ANY
OBLIGATION OF INDEMNIFICATION PROVIDED IN PARAGRAPH 9 ABOVE; OR (II) ANY CAUSE
OF ACTION ARISING FROM THE FAILURE OF LONZA TO MEET A DRUG SUBSTANCE
MANUFACTURING COMMITMENT OR DELIVER A FIRM ORDER FOR MANUFACTURING AND SUPPLY OF
DRUG SUBSTANCE WITHIN [ * ] DAYS OF THE APPLICABLE DELIVERY DATE, WHERE SUCH
FAILURE IS A RESULT OF LONZA'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR
INTENTIONAL BREACH OF THE AGREEMENT OR THE DETAILED AGREEMENT (SO LONG AS SUCH
FAILURE IS NOT DUE TO A BREACH OF THE AGREEMENT OR DETAILED AGREEMENT BY
COMPANY) (A "DELIVERY DELINQUENCY"). NOTWITHSTANDING THE FOREGOING, THE DOLLAR
CAP SHALL CONTINUE TO APPLY IN THE EVENT OF A DELIVERY DELINQUENCY, EXCEPT TO
THE EXTENT OTHERWISE PROVIDED IN THIS PARAGRAPH 10 BELOW.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS PARAGRAPH 10, IN THE EVENT OF ANY
DELIVERY DELINQUENCY, COMPANY MAY ELECT TO PROVIDE LONZA WITH A NOTICE OF
TERMINATION FOR CAUSE, WHICH NOTICE SHALL EFFECT A TERMINATION IN ACCORDANCE
WITH AND PURSUANT TO THE PROVISIONS OF PARAGRAPH 12 OF THIS AGREEMENT; PROVIDED
HOWEVER, (I) FOR THE DURATION OF THE PERIOD COMMENCING ON LONZA'S RECEIPT OF THE
NOTICE OF TERMINATION FOR CAUSE IN ACCORDANCE WITH THIS SENTENCE UP UNTIL THE
EFFECTIVE DATE OF TERMINATION PROVIDED IN PARAGRAPH 12 OF THIS AGREEMENT (THE
"WINDING-UP PERIOD"), THIS AGREEMENT OR THE DETAILED AGREEMENT, AS APPLICABLE,
SHALL REMAIN IN FULL FORCE AND EFFECT WITH