shall have the right
to institute judicial proceedings against the other Party or anyone acting by,
through or under such other Party, in order to enforce the instituting Party's
rights hereunder through specific performance, injunction or similar equitable
relief.
(g)
Each Party shall bear its own attorneys' fees, costs, and
disbursements arising out of the arbitration, and shall pay an equal share of
the fees and costs of the arbitrators; provided, however, that the arbitrators
shall be authorized to determine whether a Party is the prevailing Party, and if
so, to award to that prevailing Party reimbursement for its reasonable
attorneys' fees, costs and disbursements (including, for example, expert witness
fees and expenses, photocopy charges and travel expenses), and/or the fees and
costs of the arbitrators.
Absent the filing of an application to correct or
vacate the arbitration award as permitted by applicable law, each Party shall
fully perform and satisfy the arbitration award within fifteen (15) days of the
service of the award.
(h)
By agreeing to this binding arbitration provision, the Parties
understand that they are waiving certain rights and protections which may
otherwise be available if a dispute between the Parties were determined by
litigation in court, including the right to seek or obtain certain types of
damages precluded by this provision, the right to a jury trial, certain rights
of appeal, and a right to invoke formal rules of procedure and evidence.
ARTICLE 15
MISCELLANEOUS
15.1
ENTIRE AGREEMENT.
THIS AGREEMENT, THE MANUFACTURING AND SUPPLY
AGREEMENT AND THE STOCK PURCHASE AGREEMENT, INCLUDING THE EXHIBITS HERETO AND
THERETO, CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER CONTAINED HEREIN AND SUPERSEDES ANY AND ALL PRIOR AND
CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS AND ARRANGEMENTS WHETHER ORAL OR
WRITTEN BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, INCLUDING THE
CONFIDENTIALITY AGREEMENT.
THIS AGREEMENT WILL CONTROL IN THE EVENT OF ANY
CONFLICT BETWEEN THIS AGREEMENT AND THE COMMERCIALIZATION PLAN.
15.2
ASSIGNMENT.
A PARTY MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE NON-ASSIGNING
PARTY, AND ANY ATTEMPTED ASSIGNMENT WITHOUT SUCH CONSENT SHALL BE NULL AND VOID.
NOTWITHSTANDING THE FOREGOING, LILLY MAY ASSIGN THIS AGREEMENT TO ANY OF ITS
AFFILIATES, OR IN CONNECTION WITH A MERGER OR ACQUISITION OF OR BY LILLY, OR A
SALE OF LILLY'S ASSETS TO WHICH THIS AGREEMENT RELATES. THIS AGREEMENT SHALL
58
BE BINDING UPON AND, SUBJECT TO THE TERMS OF THIS SECTION 15.2, INURE TO THE
BENEFIT OF A PARTY'S SUCCESSORS AND PERMITTED ASSIGNS.
15.3
AMENDMENTS.
NO AMENDMENT, CHANGE, MODIFICATION OR ALTERATION OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE BINDING UPON EITHER PARTY UNLESS
IN WRITING AND SIGNED BY THE PARTY TO BE CHARGED.
15.4
BANKRUPTCY.
ALL RIGHTS AND LICENSES GRANTED UNDER OR PURSUANT TO
THIS AGREEMENT BY LILLY OR UNITED THERAPEUTICS ARE, AND WILL OTHERWISE BE DEEMED
TO BE, FOR PURPOSES OF SECTION 365(N) OF THE U.S. BANKRUPTCY CODE, LICENSES OF
RIGHT TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION