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.
43
THE DEFENSE OF SUCH CLAIM AND THE INDEMNIFYING PARTY WILL BE RESPONSIBLE FOR THE
REASONABLE ATTORNEYS' FEES AND EXPENSES OF A SINGLE COUNSEL (IN ADDITION TO ONE
LOCAL COUNSEL IN EACH JURISDICTION) FOR THE INDEMNITEES.
THE INDEMNITEE WILL
NOT CONSENT TO THE ENTRY OF ANY JUDGMENT OR ENTER INTO ANY COMPROMISE OR
SETTLEMENT THAT DOES NOT EXCEED THE MAXIMUM INDEMNITY CAP WITH RESPECT TO THE
THIRD PARTY CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFYING PARTY
(WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED).
IN THE EVENT THAT
THE INDEMNITEE CONDUCTS THE DEFENSE OF THE THIRD PARTY CLAIM PURSUANT TO THIS
SECTION 14.4(D), THE INDEMNIFYING PARTY WILL (A) ADVANCE THE INDEMNITEE PROMPTLY
AND PERIODICALLY FOR THE REASONABLE COSTS OF DEFENDING AGAINST THE THIRD PARTY
CLAIM (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) AND (B) REMAIN
RESPONSIBLE FOR ANY AND ALL OTHER LOSSES THAT THE INDEMNITEE MAY INCUR OR SUFFER
RESULTING FROM, ARISING OUT OF, RELATING TO, IN THE NATURE OF OR CAUSED BY THE
THIRD PARTY CLAIM TO THE FULLEST EXTENT PROVIDED IN THIS ARTICLE 14.
14.5
CONSENT TO JURISDICTION REGARDING THIRD PARTY CLAIMS.
GENZYME
AND EXACT, EACH IN ITS CAPACITY AS AN INDEMNIFYING PARTY, HEREBY CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY COURT IN WHICH ANY THIRD PARTY CLAIM MAY
BROUGHT AGAINST ANY INDEMNITEE FOR PURPOSES OF ANY CLAIM WHICH SUCH INDEMNITEE
MAY HAVE AGAINST SUCH INDEMNIFYING PARTY PURSUANT TO THIS AGREEMENT IN
CONNECTION WITH SUCH THIRD PARTY CLAIM, AND IN FURTHERANCE THEREOF, THE
PROVISIONS OF SECTION 16.12 ARE INCORPORATED HEREIN BY REFERENCE, MUTATIS
MUTANDIS.
14.6
EXCLUSIVE REMEDY.
EXCEPT AS SET FORTH IN SECTION 3.7 OR IN
THE CASE OF FRAUD OR INTENTIONAL MISREPRESENTATION, FROM AND AFTER THE CLOSING,
THE INDEMNIFICATION PROVIDED PURSUANT TO THIS ARTICLE 14 WILL BE THE SOLE AND
EXCLUSIVE REMEDY HERETO FOR ANY LOSS RESULTING FROM, WITH RESPECT TO OR ARISING
OUT OF ANY BREACH OR CLAIM IN CONNECTION WITH THIS AGREEMENT, ANY EXHIBIT OR
SCHEDULE HERETO OR ANY CERTIFICATE OR WRITING DELIVERED IN CONNECTION WITH THIS
AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION.
NOTWITHSTANDING THE FOREGOING,
(A) NOTHING CONTAINED IN THIS AGREEMENT WILL LIMIT A PARTY'S RIGHT TO PURSUE
EQUITABLE REMEDIES, INCLUDING, WITHOUT LIMITATION, INJUNCTIVE RELIEF AND
SPECIFIC PERFORMANCE; AND (B) IN THE EVENT THAT A COURT OF COMPETENT
JURISDICTION RESCINDS ALL OR PART OF THE SALE FOR ANY REASON FOLLOWING
CONSUMMATION, NOTHING CONTAINED IN THIS AGREEMENT WILL LIMIT GENZYME'S RIGHT TO
RECEIVE FROM EXACT (AND EXACT'S OBLIGATION TO TRANSFER TO GENZYME) SUCH PORTION
OF THE CLOSING PAYMENT ALLOCABLE TO THE PURCHASED ASSETS SUBJECT TO SUCH
RESCISSION; PROVIDED, HOWEVER, IF SUCH COURT RESCINDS ONLY PART OF THE SALE,
GENZYME, AT ITS SOLE OPTION TO BE EXERCISED WITHIN 30 DAYS OF SUCH RESCISSION,
MAY ELECT TO RECEIVE THE ENTIRE CLOSING PAYMENT FROM EXACT AND TRANSFER ALL OF
THE PURCHASED ASSETS TO EXACT.