SUBSTANCE REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY,
FROM ALL LIABILITY ON CLAIMS THAT ARE THE SUBJECT MATTER OF SUCH CLAIM OR
PROCEEDING, (B) DOES NOT INCLUDE ANY STATEMENT AS TO AN ADMISSION OF FAULT,
CULPABILITY OR FAILURE TO ACT BY OR ON BEHALF OF ANY INDEMNIFIED PARTY AND
(C) DOES NOT IMPOSE ANY CONTINUING OBLIGATION, INJUNCTIONS OR RESTRICTIONS ON
ANY INDEMNIFIED PARTY, ENCUMBER ANY OF THE ASSETS OF ANY INDEMNIFIED PARTY OR
OTHERWISE ADVERSELY AFFECT ANY INDEMNIFIED PARTY POTENTIALLY AFFECTED BY SUCH
CLAIM OR PROCEEDING AND (Y) THE INDEMNIFYING PARTY PAYS OR CAUSES TO BE PAID ALL
AMOUNTS ARISING OUT OF SUCH SETTLEMENT, COMPROMISE OR DISCHARGE CONCURRENTLY
WITH ITS EFFECTIVENESS.
(D)
EXCEPT IN THE CASE OF FRAUD OR INTENTIONAL BREACH, THE
INDEMNIFICATION AFFORDED BY THIS SECTION 7.05 SHALL BE THE SOLE AND EXCLUSIVE
REMEDY FOR ANY AND ALL LOSSES SUSTAINED OR INCURRED BY AN INDEMNIFIED PARTY
HERETO IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS, INCLUDING WITH RESPECT TO ANY BREACH OF ANY REPRESENTATION, WARRANTY
OR CERTIFICATION MADE BY A PARTY HERETO IN ANY OF THE TRANSACTION DOCUMENTS OR
CERTIFICATES GIVEN BY A PARTY HERETO IN WRITING PURSUANT HERETO OR THERETO OR
ANY BREACH OF OR DEFAULT UNDER ANY COVENANT OR AGREEMENT BY A PARTY HERETO
PURSUANT TO ANY TRANSACTION DOCUMENT.
NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, (I) IN THE EVENT OF ANY BREACH OR FAILURE IN
PERFORMANCE OF ANY COVENANT OR AGREEMENT CONTAINED IN ANY TRANSACTION DOCUMENT,
OTHER THAN SECTION 5.04(A) OF THIS AGREEMENT, THE BREACHING PARTY AGREES THAT
THE NON-BREACHING PARTY MAY BE ENTITLED TO SPECIFIC PERFORMANCE, INJUNCTIVE OR
OTHER EQUITABLE RELIEF PURSUANT TO SECTION 7.02, (II) IN NO EVENT SHALL LOSSES
INCLUDE SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF THE
INDEMNIFIED PARTY, OTHER THAN THE PAYMENT OF THE MILESTONE PAYMENT AND (III) IN
NO EVENT SHALL EITHER PARTY, OR ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS,
SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY LOSSES IN THE AGGREGATE GREATER THAN THE
AMOUNT OF THE MILESTONE PAYMENT.
FOR CLARITY, NEITHER PARTY HERETO SHALL HAVE
ANY RIGHT TO TERMINATE THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AS A
RESULT OF ANY BREACH BY THE OTHER PARTY HERETO HEREOF OR THEREOF, BUT INSTEAD
SHALL HAVE THE RIGHTS SET FORTH IN THIS SECTION 7.05 AND 0.
Section 7.06
Independent Nature of Relationship.
(A)
THE RELATIONSHIP BETWEEN VERTEX AND THE PURCHASER IS SOLELY THAT OF
SELLER AND PURCHASER, AND NEITHER VERTEX NOR THE PURCHASER HAS ANY FIDUCIARY OR
OTHER SPECIAL RELATIONSHIP WITH THE OTHER OR ANY OF THE OTHER'S AFFILIATES.
NOTHING CONTAINED HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT SHALL BE DEEMED TO
CONSTITUTE VERTEX AND THE PURCHASER AS A PARTNERSHIP, AN ASSOCIATION, A JOINT
VENTURE OR OTHER KIND OF ENTITY OR LEGAL FORM.
(B)
NO OFFICER OR EMPLOYEE OF THE PURCHASER WILL BE LOCATED AT THE
PREMISES OF VERTEX OR ANY OF ITS AFFILIATES.
27
Information redacted pursuant to a confidential treatment request.
An
unredacted version
of this exhibit has been filed separately with the Commission.
(C)
NONE OF