REGULUS TO GSK UNDER SECTION 3.1 ABOVE, OR (II) THE
OPTIONS GRANTED BY REGULUS TO GSK UNDER SECTION 2.1.
FOR PURPOSES OF
CLARIFICATION, THIS SECTION 8.3.2 WILL NOT RESTRICT REGULUS' ABILITY TO
PROSECUTE AND MAINTAIN THE REGULUS PATENT RIGHTS IN ACCORDANCE WITH SECTION 6.2.
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8.4
GSK COVENANTS.
GSK HEREBY COVENANTS TO REGULUS THAT:
8.4.1
GSK SHALL NOTIFY REGULUS IN WRITING WITHIN TEN (10) BUSINESS DAYS OF
THE DATE THAT GSK OR ITS AFFILIATE ACQUIRES FROM SANTARIS OR ONE OF SANTARIS'
AFFILIATES THE SPC-3649 RIGHTS; AND
8.4.2
IF GSK OR ITS AFFILIATE ACQUIRES FROM SANTARIS OR ONE OF SANTARIS'
AFFILIATES A LICENSE TO DEVELOP AND/OR COMMERCIALIZE SPC-3649, REGULUS AND GSK
WILL JOINTLY PREPARE A RESEARCH PLAN FOR SPC-3649; PROVIDED, THAT (I) GSK SHALL
NOT BE REQUIRED TO SHARE WITH REGULUS OR ANY FOUNDING COMPANY ANY CONFIDENTIAL
INFORMATION IF DOING SO WOULD RESULT IN A BREACH OF AN AGREEMENT BETWEEN GSK AND
SANTARIS; AND (II) GSK WILL HAVE THE SOLE DECISION MAKING AUTHORITY WITH RESPECT
TO SUCH RESEARCH PLAN.
8.5
DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY NOR ITS AFFILIATES OR PARENT COMPANIES MAKES ANY
REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTY THAT ANY PATENT RIGHTS LICENSED TO THE OTHER
PARTY HEREUNDER ARE VALID OR ENFORCEABLE OR THAT THEIR EXERCISE DOES NOT
INFRINGE OR MISAPPROPRIATE ANY PATENT RIGHTS OR OTHER INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES.
GSK UNDERSTANDS THAT SPC-3649 IS THE SUBJECT OF
ONGOING CLINICAL RESEARCH AND DEVELOPMENT AND THAT REGULUS CANNOT ASSURE THE
SAFETY, USEFULNESS OR COMMERCIAL OR TECHNICAL VIABILITY OF SUCH COMPOUNDS.
ARTICLE 9
INDEMNIFICATION; INSURANCE
9.1
INDEMNIFICATION BY GSK.
SUBJECT TO THIS ARTICLE 9, GSK SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS REGULUS, AND ITS AFFILIATES AND FOUNDING
COMPANIES, AND ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS, FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND
EXPENSES INCLUDING, BUT NOT LIMITED TO, THE REASONABLE FEES OF ATTORNEYS AND
OTHER PROFESSIONALS (COLLECTIVELY "LOSSES"), ARISING OUT OF OR RESULTING FROM
ANY AND ALL THIRD PARTY SUITS, CLAIMS, ACTIONS, PROCEEDINGS OR DEMANDS
("CLAIMS") BASED UPON:
9.1.1
THE NEGLIGENCE, RECKLESSNESS OR WRONGFUL INTENTIONAL ACTS OR
OMISSIONS OF GSK AND/OR ITS AFFILIATES AND ITS OR THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS, IN CONNECTION WITH GSK'S PERFORMANCE OF ITS
OBLIGATIONS OR EXERCISE OF ITS RIGHTS UNDER THIS AGREEMENT;
17
9.1.2
ANY BREACH OF ANY REPRESENTATION OR WARRANTY OR EXPRESS COVENANT
MADE BY GSK UNDER ARTICLE 8 OR ANY OTHER PROVISION UNDER THIS AGREEMENT;
9.1.3
THE DEVELOPMENT OR MANUFACTURING ACTIVITIES THAT ARE CONDUCTED BY
AND/OR ON BEHALF OF GSK OR ITS AFFILIATES OR SUBLICENSEES, INCLUDING HANDLING
AND STORAGE AND MANUFACTURE BY AND/OR ON BEHALF OF GSK OR ITS AFFILIATES OR
SUBLICENSEES OF SPC-3649 OR SPC-3649 PRODUCT FOR THE PURPOSE OF CONDUCTING
DEVELOPMENT OR COMMERCIALIZATION BY OR ON BEHALF OF GSK OR ITS AFFILIATES OR
SUBLICENSEES; OR
9.1.4
THE COMMERCIALIZATION BY