THIS AGREEMENT OR IN A RELATED
AGREEMENT, NONE OF BIOMARIN, GENZYME OR BIOMARIN/GENZYME LLC MAKES ANY
REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND THE NON-INFRINGEMENT OF ANY THIRD-PARTY PATENTS OR
PROPRIETARY RIGHTS.
ALL UNIFORM COMMERCIAL CODE WARRANTIES ARE EXPRESSLY
DISCLAIMED BY THE PARTIES.
11.5
LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO
CLAIMS FOR INDEMNIFICATION UNDER ARTICLE 12 HEREOF AND AS OTHERWISE EXPRESSLY
SET FORTH IN THIS AGREEMENT OR ANY RELATED AGREEMENT, IT IS AGREED BY THE
PARTIES THAT NO PARTY SHALL BE LIABLE TO ANOTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING LOST OR ANTICIPATED
REVENUES OR PROFITS RELATING TO THE SAME), ARISING FROM ANY CLAIM RELATING TO
THIS AGREEMENT OR THE RELATED AGREEMENTS, WHETHER SUCH CLAIM IS BASED ON
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AN AUTHORIZED
REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF
SAME.
ARTICLE XII
INDEMNITY
12.1
BIOMARIN/GENZYME LLC INDEMNITY OBLIGATIONS.
THE
OPERATING AGREEMENT SHALL PROVIDE THAT BIOMARIN/GENZYME LLC SHALL INDEMNIFY EACH
OF THE MEMBERS AND ITS AFFILIATES, EMPLOYEES AND AGENTS (EACH AN "INDEMNIFIED
PERSON") FOR ANY ACT PERFORMED BY SUCH INDEMNIFIED PERSON WITHIN THE SCOPE OF
THE AUTHORITY CONFERRED UPON SUCH INDEMNIFIED PERSON UNDER THIS AGREEMENT;
PROVIDED THAT IT SHALL BE A CONDITION TO SUCH INDEMNITY THAT (A) THE INDEMNIFIED
PERSON SEEKING INDEMNIFICATION ACTED IN GOOD FAITH AND IN A MANNER REASONABLY
BELIEVED TO BE IN, OR NOT OPPOSED TO, THE BEST INTERESTS OF BIOMARIN/GENZYME
LLC, (B) THE ACT FOR WHICH INDEMNIFICATION IS SOUGHT DID NOT CONSTITUTE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT BY SUCH INDEMNIFIED PERSON AND (C) PAYMENT AND
INDEMNIFICATION OF ANY MATTER DISPOSED OF BY A COMPROMISE PAYMENT BY SUCH
INDEMNIFIED PERSON, PURSUANT TO CONSENT DECREE OR OTHERWISE, SHALL HAVE BEEN
APPROVED BY THE MEMBERS, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED, OR BY A COURT OF COMPETENT JURISDICTION.
FOR THE AVOIDANCE OF DOUBT,
SUCH INDEMNIFICATION OF THE INDEMNIFIED PERSONS SHALL INCLUDE INDEMNIFICATION
FOR ACTS PERFORMED BY SUCH INDEMNIFIED PERSON SINCE THE ORIGINAL DATE OF
EXECUTION, [**].
12.2
INSURANCE.
BIOMARIN/GENZYME LLC SHALL MAINTAIN
CLINICAL TRIAL AND PRODUCT LIABILITY INSURANCE WITH RESPECT TO DEVELOPMENT,
MANUFACTURE AND SALES OF COLLABORATION PRODUCTS IN AN
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
31
AMOUNT REASONABLY BELIEVED BY GENZYME AND BIOMARIN TO BE ADEQUATE AND CUSTOMARY
FOR THE DEVELOPMENT, MANUFACTURE AND SALE OF NOVEL THERAPEUTIC PRODUCTS.
GENZYME AND BIOMARIN SHALL BE NAMED AS ADDITIONAL INSUREDS ON ANY SUCH POLICY.
GENZYME AND BIOMARIN SHALL EACH MAINTAIN SIMILAR CLINICAL TRIAL AND PRODUCT
LIABILITY INSURANCE COVERAGE IN AMOUNTS REASONABLY DETERMINED BY THE STEERING
COMMITTEE FROM TIME TO TIME.
ARTICLE XIII
TERM AND TERMINATION
13.1
TERM.
THE TERM OF THIS AGREEMENT SHALL BE PERPETUAL
UNLESS TERMINATED PURSUANT TO SECTION 13.3 BELOW.
13.2
TERMINATION OF THE DEVELOPMENT PROGRAM ONLY.
13.2.1
BY MUTUAL AGREEMENT.