BROUGHT BY THIRD PARTIES THAT ARE BASED
UPON (A) ANY INFRINGEMENT BY BARR GENERIC MODAFINIL PRODUCT OF THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES; (B) THE USE OR SALE OR OTHER DISTRIBUTION OF
BARR GENERIC MODAFINIL PRODUCT BY BARR OR ITS AFFILIATE IN VIOLATION OF THE
TERMS OF THIS AGREEMENT; (C) ANY REPRESENTATION MADE OR WARRANTY GIVEN BY BARR
OR SUBDISTRIBUTORS WITH RESPECT TO THE BARR GENERIC MODAFINIL PRODUCT; (D) THE
DEATH OR INJURY TO PERSON OR DAMAGE TO PROPERTY RESULTING FROM BARR ANDA
MODAFINIL PRODUCT; (E) THE DEATH OR INJURY TO PERSON OR DAMAGE TO PROPERTY
RESULTING FROM (I) IMPROPER HANDLING, STORAGE OR TRANSPORT OF CEPHALON SUPPLIED
MODAFINIL PRODUCT BY BARR OR (II) THE UNAUTHORIZED ALTERATION, MODIFICATION OR
ADULTERATION OF CEPHALON SUPPLIED MODAFINIL PRODUCT BY BARR; (F) THE MATERIAL
BREACH OF ANY REPRESENTATION OR WARRANTIES MADE BY BARR IN ARTICLE 6 HEREIN;
(G) THE NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT OF BARR OR BARR'S
OFFICERS, EMPLOYEES OR AGENTS HEREUNDER; OR (H) THE SUCCESSFUL ENFORCEMENT BY
CEPHALON OF ITS RIGHTS UNDER THIS SECTION 8.2. NOTWITHSTANDING THE FOREGOING,
BARR SHALL NOT BE OBLIGATED TO INDEMNIFY CEPHALON FOR ANY LIABILITY RELATED TO
THE CEPHALON SUPPLIED MODAFINIL PRODUCTS TO THE EXTENT CEPHALON HAS ASSUMED AN
INDEMNIFICATION OBLIGATION WITH RESPECT THERETO UNDER SECTION 8.1 ABOVE.
8.3
NOTIFICATION. IN THE EVENT THAT ONE PARTY RECEIVES NOTICE OF A
CLAIM, LAWSUIT, OR LIABILITY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION BY THE
OTHER PARTY, THE PARTY RECEIVING NOTICE SHALL GIVE PROMPT NOTIFICATION TO THE
INDEMNIFYING PARTY.
8.4
COOPERATION. THE PARTY BEING INDEMNIFIED SHALL COOPERATE FULLY
WITH THE INDEMNIFYING PARTY THROUGHOUT THE PENDENCY OF THE CLAIM, LAWSUIT OR
LIABILITY, AND THE INDEMNIFYING PARTY SHALL HAVE COMPLETE CONTROL OVER THE
CONDUCT AND DISPOSITION OF THE CLAIM, LAWSUIT, OR LIABILITY.
9.
GENERAL
9.1
HEADINGS. THE HEADINGS AND CAPTIONS USED HEREIN ARE FOR THE
CONVENIENCE OF THE PARTIES ONLY AND ARE NOT TO BE CONSTRUED TO DEFINE, LIMIT OR
AFFECT THE CONSTRUCTION OR INTERPRETATION HEREOF.
9.2
SEVERABILITY. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS
FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE OFFENDING PROVISION SHALL NOT
RENDER ANY OTHER PROVISION OF THIS AGREEMENT INVALID OR UNENFORCEABLE, AND ALL
OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE ENFORCEABLE,
UNLESS THE PROVISIONS WHICH HAVE BEEN FOUND TO BE INVALID OR UNENFORCEABLE SHALL
SUBSTANTIALLY AFFECT THE REMAINING RIGHTS OR OBLIGATIONS GRANTED OR UNDERTAKEN
BY EITHER PARTY.
9.3
ENTIRE AGREEMENT. THIS AGREEMENT AND THE PROVIGIL SETTLEMENT
AGREEMENT CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES REGARDING THE SUBJECT
MATTER HEREOF AND THEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS, UNDERSTANDINGS OR
CONDITIONS (WHETHER ORAL OR WRITTEN) REGARDING
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
12
the same. This Agreement may not be changed, modified, amended or supplemented
except by a written instrument signed by both Parties.
9.4