ADMIT OR IMPLY ANY LIABILITY OR WRONGDOING
OF SUCH OTHER PARTY; OR (III) ADVERSELY AFFECT THE GOODWILL OR PUBLIC IMAGE OF
SUCH OTHER PARTY. NOTWITHSTANDING THE FOREGOING, THE INDEMNIFIED PARTY MAY
PARTICIPATE THEREIN THROUGH COUNSEL OF ITS CHOICE, BUT THE COST OF SUCH COUNSEL
SHALL BE BORNE SOLELY BY THE INDEMNIFIED PARTY. THE PROVISIONS OF THIS SECTION
11.1 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR SEVEN (7) YEARS (EXCEPT
AS TO CLAIMS AS TO WHICH A PARTY HAS NOTIFIED THE OTHER IN WRITING PRIOR TO THE
THIRD ANNIVERSARY OF THE TERMINATION DATE OF THIS AGREEMENT, IN WHICH EVENT, THE
INDEMNIFYING PARTY'S OBLIGATIONS UNDER THIS SECTION 11.1 SHALL SURVIVE WITH
RESPECT TO ANY SUCH CLAIM UNTIL ITS RESOLUTION).
SECTION 11.2
CONSEQUENTIAL DAMAGES. NEITHER WATSON NOR DEPOMED (WHICH
FOR THE PURPOSES OF THIS SECTION 11.2 SHALL INCLUDE THEIR RESPECTIVE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) SHALL HAVE ANY LIABILITY TO THE OTHER
FOR ANY PUNITIVE DAMAGES, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES, RELATING TO OR ARISING FROM THIS AGREEMENT, EVEN IF SUCH DAMAGES MAY
HAVE BEEN FORESEEABLE; PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY IN THE CASE
OF FRAUD OR WILLFUL MISCONDUCT OR TO AMOUNTS PAYABLE TO A THIRD PARTY THAT ARE
SUBJECT TO INDEMNIFICATION PURSUANT TO THIS ARTICLE 11.
ARTICLE XII
CONFIDENTIALITY AND PUBLICITY
SECTION 12.1
PROPRIETARY INFORMATION. PURSUANT TO THIS AGREEMENT, A
PARTY RECEIVING PROPRIETARY INFORMATION FROM THE OTHER, DIRECTLY OR INDIRECTLY,
WILL TREAT SUCH PROPRIETARY INFORMATION AS CONFIDENTIAL, WILL USE SUCH
PROPRIETARY INFORMATION ONLY FOR THE PURPOSES OF THIS AGREEMENT AND WILL NOT
DISCLOSE, AND WILL TAKE ALL REASONABLE PRECAUTIONS TO PREVENT THE DISCLOSURE OF,
SUCH PROPRIETARY INFORMATION TO (A) ANY OF ITS OFFICERS, DIRECTORS, MANAGERS,
EQUITY HOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES OR CONSULTANTS
WHO ARE NOT REQUIRED TO KNOW SUCH PROPRIETARY INFORMATION OR WHO ARE NOT BOUND
BY A LIKE OBLIGATION OF CONFIDENTIALITY OR (B) TO THIRD PARTIES.
SECTION 12.2
DISCLOSURES REQUIRED BY LAW. IN THE EVENT THE RECIPIENT
PARTY IS REQUIRED (I) UNDER APPLICABLE LEGAL REQUIREMENTS TO DISCLOSE
PROPRIETARY INFORMATION OF THE DISCLOSING PARTY TO ANY GOVERNMENTAL AUTHORITY TO
OBTAIN ANY REGULATORY APPROVAL FOR THE PRODUCT, (II) TO DISCLOSE PROPRIETARY
INFORMATION IN CONNECTION WITH BONA FIDE LEGAL PROCESS (INCLUDING IN CONNECTION
WITH ANY BONA FIDE DISPUTE HEREUNDER) OR (III) TO DISCLOSE PROPRIETARY
INFORMATION UNDER THE RULES OF THE SECURITIES EXCHANGE UPON WHICH ITS SECURITIES
ARE TRADED, THE RECIPIENT PARTY MAY DO SO ONLY IF IT LIMITS DISCLOSURE TO THAT
PURPOSE AFTER GIVING THE DISCLOSING PARTY PROMPT WRITTEN NOTICE OF ANY INSTANCE
OF SUCH A REQUIREMENT IN REASONABLE TIME FOR THE DISCLOSING PARTY TO ATTEMPT TO
OBJECT TO OR TO LIMIT SUCH DISCLOSURE. IN THE EVENT OF DISCLOSURES
7
REQUIRED UNDER APPLICABLE LEGAL REQUIREMENTS, THE RECIPIENT PARTY SHALL
COOPERATE WITH THE DISCLOSING PARTY AS REASONABLY REQUESTED THEREBY.
SECTION 12.3
PUBLICITY. NEITHER PARTY WILL ORIGINATE ANY PUBLICITY,
NEWS RELEASE, PUBLIC COMMENT OR OTHER PUBLIC ANNOUNCEMENT, WHETHER TO THE PRESS,
TO STOCKHOLDERS, OR OTHERWISE, RELATING TO THIS AGREEMENT, WITHOUT THE CONSENT
OF THE OTHER PARTY, EXCEPT FOR SUCH