SPECIFIED
THEREIN AND UPON SIXTY DAYS WRITTEN NOTICE GIVEN AFTER SUCH SIX MONTH PERIOD
(SUCH NOTICE BEING, NULL AND VOID IF THE FORCE MAJEURE EVENT IS DISCONTINUED
DURING SUCH SIXTY-DAY PERIOD), IN ADDITION TO THE RIGHT TO TERMINATE THIS
AGREEMENT UNDER SECTION 8.4, THE RIGHT TO (I) EXTEND THIS AGREEMENT FOR A PERIOD
EQUAL TO THE DURATION OF THE FORCE MAJEURE EVENT WHICH OCCASIONED THE DELAY,
INTERRUPTION OR PREVENTION (SUBJECT TO THE MAXIMUM TERM OF SIX MONTHS) OR (II)
CONTINUE THE AGREEMENT IN FULL FORCE AND EFFECT WITHOUT
34
MODIFICATION.
IN NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
ITS INABILITY TO PERFORM UNDER THIS AGREEMENT DUE TO ANY SUCH FORCE MAJEURE
EVENT.
SECTION 8.6
RECALL.
EITHER PARTY SHALL HAVE THE RIGHT TO TERMINATE
THIS AGREEMENT IN THE EVENT OF A LARGE SCALE RECALL OR WITHDRAWAL OF THE PRODUCT
FROM THE TERRITORY RESULTING FROM A SIGNIFICANT SAFETY RISK INHERENT IN THE
PRODUCT AND NOT DUE TO TAMPERING, A REMEDIABLE MANUFACTURING PROBLEM, OR OTHER
DEFECT THAT CAN BE CURED WITH RESPECT TO PRODUCTS MANUFACTURED AFTER SUCH RISK
IS DISCOVERED.
SECTION 8.7
EFFECT OF TERMINATION.
(A)
NO ADDITIONAL PAYMENT OBLIGATIONS ARISING UNDER ARTICLE VII HEREOF
SHALL ACCRUE AFTER THE DATE OF EXPIRATION OR TERMINATION OF THIS AGREEMENT
EXCEPT AS SET FORTH IN SECTION 7.4; PROVIDED, HOWEVER, THAT EXPIRATION OR
TERMINATION OF THIS AGREEMENT SHALL NOT RELIEVE EITHER PARTY OF ANY OBLIGATIONS
ACCRUING PRIOR TO SUCH EXPIRATION OR TERMINATION.
CERTAIN PROVISIONS OF THIS
AGREEMENT BY THEIR TERMS CONTINUE AFTER THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
IN ADDITION, ANY OTHER PROVISIONS REQUIRED TO INTERPRET AND ENFORCE
THE PARTIES' RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL ALSO SURVIVE, BUT
ONLY TO THE EXTENT REQUIRED FOR THE FULL OBSERVATION AND PERFORMANCE OF THIS
AGREEMENT.
(B)
EXCEPT AS INDICATED IN SECTIONS 8.5, EXPIRATION OR TERMINATION OF
THIS AGREEMENT SHALL BE WITHOUT PREJUDICE TO (A) ANY REMEDIES WHICH ANY PARTY
MAY THEN OR THEREAFTER HAVE HEREUNDER OR AT LAW; AND (B) A PARTY'S RIGHT TO
RECEIVE ANY PAYMENT ACCRUED UNDER THE AGREEMENT PRIOR TO THE TERMINATION DATE
BUT WHICH BECAME PAYABLE THEREAFTER; AND (C) EITHER PARTY'S RIGHT TO OBTAIN
PERFORMANCE OF ANY OBLIGATIONS PROVIDED FOR IN THIS AGREEMENT WHICH SURVIVE
TERMINATION BY THEIR TERMS OR BY A FAIR INTERPRETATION OF THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE RIGHTS TO TERMINATE AS SET FORTH
HEREIN SHALL BE IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES AVAILABLE UNDER
THIS AGREEMENT, AT LAW, OR IN EQUITY OR OTHERWISE.
(C)
UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT PURSUANT TO
THIS ARTICLE VIII, EACH PARTY SHALL PROMPTLY TRANSFER AND RETURN TO THE OTHER
PARTY ALL PROPRIETARY INFORMATION OF THE OTHER PARTY (PROVIDED THAT EACH PARTY
MAY KEEP ONE COPY OF SUCH PROPRIETARY INFORMATION OF FOR ARCHIVAL PURPOSES
ONLY).
UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, KING SHALL PROVIDE
TO DEPOMED, AT KING'S OUT-OF-POCKET COST THEREFOR, ALL PROMOTIONAL MATERIALS IN
KING'S POSSESSION (INCLUDING ELECTRONIC FILES OF ALL PROMOTIONAL MATERIALS);
PROVIDED, HOWEVER, THAT KING MAY DESTROY