BUT
NOT LIMITED TO, CLAIMS OR COSTS RELATED TO PRODUCT LIABILITY CLAIMS OR
OTHERWISE), SHALL NOT, (X) WITH RESPECT TO THOSE CLAIMS BASED UPON THE PRECEDING
CLAUSE (I), EXCEED $[**] MILLION PER OCCURRENCE AND $[**] MILLION IN THE
AGGREGATE ANNUALLY AND (Y) WITH RESPECT TO THOSE CLAIMS BASED UPON THE PRECEDING
CLAUSE (II), EXCEED $[**] MILLION (EXCEPT AS PROVIDED IN SECTION 15.3(B)).
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Confidential portions of this Exhibit marked as [**] have been omitted pursuant
to a
request for confidentiality and filed separately with the Securities and
Exchange Commission.
Execution Copy
15.3 LIMITATION ON LIABILITY OF PARTIES.
(A) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 15.3(B), IN NO EVENT SHALL EITHER
PARTY OR ANY OF ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS
AFFILIATES FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
OR FOR ANY LOSS OF PROFITS OR REVENUES ARISING OUT OF OR RESULTING FROM ANY
BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES, WHETHER IN
CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
(B) THE LIMITATIONS AND DISCLAIMER SET FORTH IN (I) THE PRECEDING CLAUSE (A) FOR
LOSS OF PROFITS AND (II) SECTION 15.2(Y) (AS IT RELATES TO THE $[**] MILLION
AMOUNT), SHALL NOT APPLY TO A CLAIM BY PURCHASER AGAINST SELLER FOR DAMAGES
RESULTING FROM AN INTENTIONAL BREACH OF THIS AGREEMENT BY SELLER OF ITS
OBLIGATION TO SUPPLY PRODUCT TO PURCHASER IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT ONLY IF ALL OF THE FOLLOWING CRITERIA ARE SATISFIED BY SUCH CLAIM:
(V) THE CLAIM RELATES TO A TIME PERIOD DURING WHICH SELLER HAD SUFFICIENT
QUANTITIES OF THE PRODUCTS TO PROVIDE TO PURCHASER AS SET FORTH IN THIS
AGREEMENT (UNLESS THE SELLER HAS FAILED TO MAINTAIN SUFFICIENT QUANTITIES OF
PRODUCTS FOR THE PURPOSE OF WITHHOLDING IT FROM PURCHASER), AND
(W) DURING SUCH TIME PERIOD, SELLER SOLD THE NDA PRODUCT IN THE TERRITORY, AND
(X) DURING SUCH TIME PERIOD, SELLER INTENTIONALLY BREACHED THIS AGREEMENT BY
WITHHOLDING THE PRODUCTS FROM PURCHASER FOR A PERIOD OF AT LEAST THREE
(3) MONTHS FOR THE PURPOSE OF SELLING MORE OF THE NDA PRODUCT IN THE TERRITORY
THAN SELLER WOULD HAVE OTHERWISE SOLD IN LIEU OF SUPPLYING THE PRODUCTS TO
PURCHASER IN ACCORDANCE WITH THIS AGREEMENT, AND
(Y) DURING SUCH TIME PERIOD, A FORCE MAJEURE EVENT AS DESCRIBED IN SECTION
11.1 DID NOT APPLY, AND
(Z) DURING SUCH TIME PERIOD, PURCHASER WAS NOT IN BREACH OF THIS AGREEMENT.
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Confidential portions of this Exhibit marked as [**] have been omitted pursuant
to a
request for confidentiality and filed separately with the Securities and
Exchange Commission.
Execution Copy
PROVIDED, HOWEVER, IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR DAMAGES
IN EXCESS OF $[**] (THE "TOTAL CAP") IN THE AGGREGATE. PURCHASER AGREES TO
SUBMIT ANY CLAIM FOR DAMAGES PURSUANT TO THIS SECTION 15.3 FOR RESOLUTION BY
ARBITRATION AS SET FORTH IN SECTION 17.2.
(C) WITH RESPECT TO ANY CLAIM FOR DAMAGES AS PROVIDED IN SECTION 15.3(B),
PURCHASER ACKNOWLEDGES AND AGREES TO THE FOLLOWING:
(I) THAT THE