RECALL
ARISES UNDER THE CIRCUMSTANCES DESCRIBED IN SECTION 12.4(A)(II)), GALDERMA SHALL
BE RELIEVED OF ITS OBLIGATIONS UNDER SECTION 12.1(J) OF THE LICENSE AGREEMENT
AND ARTICLE V HEREOF DURING THE CONTINUATION OF SUCH RECALL SOLELY FOR THE
COUNTRY IN WHICH SUCH RECALL WAS EFFECTED, PROVIDED SUCH RECALL MATERIALLY
INTERFERES WITH GALDERMA'S ABILITY TO SELL THE LICENSED PRODUCTS IN SUCH
COUNTRY.
IF SUCH SAFETY CONCERN, WHICH (FOR THE AVOIDANCE OF DOUBT) EXCLUDES
CONCERNS ARISING UNDER THE CIRCUMSTANCES DESCRIBED IN SECTION 12.4(A)(II), HAS A
MATERIAL ADVERSE EFFECT ON AGGREGATE NET SALES OF THE LICENSED PRODUCTS IN ANY
SALES TERRITORY (TAKEN AS A WHOLE), GALDERMA SHALL HAVE THE FURTHER RIGHT TO
TERMINATE ALL OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THE SUPPLY
AGREEMENT WITH RESPECT TO SUCH SALES TERRITORY SO THAT THEREAFTER THE DEFINITION
OF TERRITORY SHALL NOT INCLUDE SUCH SALES TERRITORY FOR ALL PURPOSES UNDER THIS
AGREEMENT AND THE SUPPLY AGREEMENT.
ARTICLE XIII - INSURANCE
13.1.
EACH PARTY AGREES TO PROCURE AND MAINTAIN IN FULL FORCE AND EFFECT
DURING THE TERM VALID AND COLLECTIBLE INSURANCE POLICIES IN CONNECTION WITH ITS
ACTIVITIES AS CONTEMPLATED HEREBY, WHICH POLICIES SHALL BE IN COMPLIANCE WITH
EXHIBIT B ATTACHED HERETO, PROVIDED THAT GALDERMA
SHALL PROCURE SUCH INSURANCE
WITH RESPECT TO THE UNITED STATES AS PROMPTLY AS PRACTICABLE (AND IN ANY EVENT
WITHIN TWO (2) MONTHS FOLLOWING THE EFFECTIVE DATE).
UPON THE
14
Confidential Treatment Requested
OTHER PARTY'S REQUEST, EACH PARTY SHALL PROVIDE THE OTHER WITH A CERTIFICATE OF
COVERAGE OR OTHER WRITTEN EVIDENCE REASONABLY SATISFACTORY TO THE REQUESTING
PARTY OF SUCH INSURANCE COVERAGE.
ARTICLE XIV - COORDINATION WITH LICENSE AGREEMENT
14.1.
ARTICLE VII (PUBLICATION; TRANSFER OF DATA; CONFIDENTIALITY;
COOPERATION), ARTICLE X (REPRESENTATIONS AND WARRANTIES), ARTICLE XIII (TERM AND
TERMINATION), ARTICLE XIV (INDEMNIFICATION), ARTICLE XVI (DISPUTE RESOLUTION)
AND ARTICLE XVII (MISCELLANEOUS) OF THE LICENSE AGREEMENT ARE INCORPORATED INTO
THIS AGREEMENT BY REFERENCE TO SUCH ARTICLES.
FOR AVOIDANCE OF DOUBT, THE
INCORPORATION OF ARTICLE XIII (TERM AND TERMINATION) OF THE LICENSE AGREEMENT
INTO THIS AGREEMENT BY REFERENCE MEANS THAT THIS AGREEMENT IS COTERMINOUS WITH
THE LICENSE AGREEMENT.
ARTICLE XV - GUARANTY
15.1.
PARENT IRREVOCABLY GUARANTEES THE FULL AND TIMELY PERFORMANCE BY
GALDERMA, AND EACH OF ITS SUCCESSORS AND ASSIGNS THAT ARE AFFILIATES OF PARENT,
OF ALL ITS OBLIGATIONS UNDER THIS AGREEMENT, AS NOW OR HEREAFTER AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, IN FAVOR OF
ANIKA AND EACH OF ITS SUCCESSORS AND ASSIGNS, AND HEREBY UNDERTAKES THAT IF
GALDERMA, OR ITS SUCCESSORS OR ASSIGNS, SHALL IN ANY RESPECT FAIL TO PERFORM AND
OBSERVE ALL OF THE TERMS, PROVISIONS, CONDITIONS AND STIPULATIONS OF THIS
AGREEMENT (THE "OBLIGATIONS"), PARENT SHALL PERFORM OR HAVE PERFORMED ALL SUCH
OBLIGATIONS AS REQUIRED BY THIS AGREEMENT WITHOUT ANY REQUIREMENT THAT ANIKA
FIRST PROCEED AGAINST GALDERMA OR RESORT TO ANY OTHER MEANS TO COLLECT OR
RECEIVE THE BENEFIT OF THE OBLIGATIONS.
CLAIMS HEREUNDER MAY BE MADE ON ONE OR
MORE OCCASION.
THE OBLIGATIONS OF PARENT UNDER THIS ARTICLE XV SHALL BE
PRIMARY, ABSOLUTE AND UNCONDITIONAL OBLIGATIONS OF PARENT AND SHALL NOT