PROTECTIVE ORDER OR OTHER SIMILAR ORDER PREVENTING OR LIMITING THE PROPOSED
DISCLOSURE, (III) TAKE ALL REASONABLE MEASURES TO ENSURE CONFIDENTIAL TREATMENT
OF SUCH CONFIDENTIAL INFORMATION AND (IV) CONSULT WITH THE DISCLOSING PARTY WITH
REGARD TO THE DISCLOSURE (INCLUDING CONSULTATION WITH REGARD TO THE CREATION OF
A REDACTED VERSION OF SUCH CONFIDENTIAL INFORMATION) AND (B) THE RECEIVING PARTY
WILL DISCLOSE SUCH CONFIDENTIAL INFORMATION ONLY TO THE EXTENT REQUIRED BY THE
PROTECTIVE ORDER OR OTHER SIMILAR ORDER, IF SUCH AN ORDER IS OBTAINED, AND, IF
NO SUCH ORDER IS OBTAINED, THE RECEIVING PARTY WILL DISCLOSE ONLY THE MINIMUM
AMOUNT OF SUCH CONFIDENTIAL INFORMATION REQUIRED TO BE DISCLOSED IN ORDER TO
COMPLY WITH APPLICABLE LAW.
ANY CONFIDENTIAL INFORMATION SO DISCLOSED WILL
CONTINUE TO BE CONFIDENTIAL INFORMATION FOR ALL PURPOSES UNDER THIS AGREEMENT.
13.4
PUBLIC STATEMENTS.
THE EXISTENCE AND TERMS OF THIS AGREEMENT
WILL BE CONSIDERED THE CONFIDENTIAL INFORMATION OF BOTH PARTIES.
NEITHER PARTY
WILL MAKE PUBLIC STATEMENTS REGARDING THE EXISTENCE, TERMS, OR CONTENT OF THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, OTHER THAN AS
REQUIRED BY LAW OR THE APPLICABLE RULES OF A STOCK EXCHANGE.
AFTER THE
EFFECTIVE DATE, THE PARTIES MAY RELEASE A MUTUAL ANNOUNCEMENT REGARDING THE
SIGNING OF THIS AGREEMENT IN A FORM APPROVED BY BOTH PARTIES IN ADVANCE IN
WRITING, SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD OR DELAYED.
13.5
MUTUAL NON-DISCLOSURE AGREEMENT.
ALL INFORMATION DISCLOSED
PURSUANT TO THE MUTUAL NON-DISCLOSURE AGREEMENT BETWEEN THE PARTIES DATED AS OF
APRIL 9, 2008 WILL REMAIN CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT;
PROVIDED THAT EACH PARTY MAY USE SUCH INFORMATION TO THE EXTENT PERMITTED BY
THIS AGREEMENT.
Article 14
Indemnification.
14.1
INDEMNIFICATION BY EXACT.
(A)
INDEMNIFICATION.
SUBJECT TO THE LIMITATIONS SET FORTH IN THIS ARTICLE
14, EXACT WILL INDEMNIFY, HOLD HARMLESS AND DEFEND GENZYME AND ITS AFFILIATES,
AND THE REPRESENTATIVES AND AFFILIATES OF EACH OF THE FOREGOING PERSONS (EACH, A
"GENZYME INDEMNITEE") FROM AND AGAINST ANY AND ALL ACTIONS, LOSSES, LIABILITIES,
DAMAGES, COSTS, FEES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES,
DISBURSEMENTS AND CHARGES) (COLLECTIVELY, "LOSSES") ARISING OUT OF OR RESULTING
FROM:
(I)
ANY BREACH OF, OR INACCURACY IN, ANY REPRESENTATION OR WARRANTY MADE
BY EXACT IN THIS AGREEMENT OR IN ANY ANCILLARY AGREEMENT REFERRED TO IN CLAUSES
(I), (II) OR (III) OF SECTION 5.2(A);
(II)
ANY BREACH OR VIOLATION OF ANY COVENANT OR AGREEMENT OF EXACT
(INCLUDING UNDER THIS ARTICLE 14) IN OR PURSUANT TO THIS OR ANY ANCILLARY
AGREEMENT;
(III)
ANY THIRD-PARTY CLAIM RELATING TO A BREACH BY EXACT OF THE TRANSFERRED
IN-LICENSE AGREEMENT;
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
40
(IV)
ANY RETAINED LIABILITY; OR
(V)
ANY FRAUD OR INTENTIONAL MISREPRESENTATION OF EXACT.
(B)
MONETARY LIMITATIONS.
EXACT WILL HAVE NO OBLIGATION TO INDEMNIFY THE
GENZYME INDEMNITEES IN RESPECT OF LOSSES ARISING PURSUANT TO SECTION 14.1(A)(I)
UNLESS THE AGGREGATE AMOUNT OF ALL SUCH LOSSES INCURRED OR SUFFERED BY THE