By Allergan. (A) if any AbbVie Party shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement or if any of its representations or warranties set forth in this Agreement are inaccurate, which breach, failure to perform or inaccuracy (1) would result in a failure of Condition 5(ii) or 5(iii) and (2) is not reasonably capable of being cured by the End Date or, if curable, is not cured by the earlier of (x) the End Date and (y) 30 days following written notice by Allergan thereof;
(B) prior to obtaining the Allergan Shareholder Approval, if (1) in accordance with Section 5.3, the Allergan Board shall have authorized Allergan to terminate this Agreement under this Section 9.1(a)(ii)(B) in response to an Allergan Superior Proposal and (2) substantially concurrently with such termination, a definitive agreement providing for the consummation of such Allergan Superior Proposal is duly executed and delivered by all parties thereto and, prior to or substantially concurrently with such termination, Allergan pays AbbVie any amounts due under the Expenses Reimbursement Agreement (it being understood that, without limiting Allergan’s obligations under the Expenses Reimbursement Agreement, only such costs and expenses for which AbbVie shall have submitted to Allergan in writing a request for such amounts and written invoices or written documentation supporting such request prior to such termination in accordance with the Expenses Reimbursement Agreement shall be due substantially concurrently with such termination);
By Allergan. Allergan shall prepare and timely file (or cause to be prepared and timely filed):
(i) all Tax Returns of the Allergan Group or any Pre-Distribution Member or group of Pre-Distribution Members for all Pre-Closing Taxable Periods that are filed on or after the date of this Agreement;
(ii) all Tax Returns of the Allergan Group or any Pre-Distribution Member or group of Pre-Distribution Members, other than Newly Formed AMO Members, for all Straddle Periods; and
(iii) all Tax Returns of the Post-Distribution Allergan Group or any Post-Distribution Member or group of Post-Distribution Members for all Post-Closing Taxable Periods.
By Allergan. Allergan shall indemnify, defend and hold Ista, its directors, employees, agents and representatives harmless from and against all claims, causes of action, settlement costs (including reasonable attorney fees and expenses), losses or liabilities of any kind which; (a) arise from a breach of a representation or warranty in Section 11.2; or (b) arise from the improper registration (in countries for which Allergan is responsible), marketing, handling or distribution of the Product; or (c) arise from claims that the Product infringes the trademark of a Third Party if the Product is marketed using a trademark belonging to Allergan pursuant to Section 5.4.
By Allergan. ALLERGAN represents and warrants that:
6.1.1 it is a corporation duly organized, validly existing and in good standing under the laws of the Cayman Islands and has taken all necessary action, including, without limitation, obtaining any necessary approval of its board of directors, to execute and deliver this Supply Agreement;
6.1.2 it has the corporate power and authority and the legal right to own and operate its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is now being conducted;
6.1.3 it has full power and authority to enter into and perform this Supply Agreement and does not require any shareholder action or approval, and that this Supply Agreement constitutes and when executed will constitute, its legal, valid and binding obligation, enforceable in accordance with its terms, except as may be limited by bankruptcy and equitable principles limiting specific performance;
6.1.4 the execution, delivery and performance of this Supply Agreement by ALLERGAN shall not constitute a breach or default, or an event which with the giving of notice or passage of time or both would constitute a breach or default, under any contract, instrument, law or other obligation to which it is a party or by which it or any of its assets may be bound;
6.1.5 it shall Manufacture and supply the Products in accordance with the terms of this Supply Agreement including but not limited to the Quality Obligations and shall comply with all Marketing Authorizations, Manufacturing Authorizations, cGMPs and laws and regulations relevant to their Manufacture and sale;
6.1.6 all Products Manufactured, sold and shipped pursuant to this Supply Agreement shall be Manufactured in accordance with all applicable national and local environmental, health and safety laws and regulations in effect at the time and place of Manufacture of the Products; *** Certain confidential information contained in this document, marked with 3 asterisks, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
6.1.7 all waste, including but not limited to all hazardous waste, generated at the time of Manufacture of the Products shall be disposed of in accordance with all applicable laws and regulations governing such matters in the country of the Manufacturing Facilities; and
6.1.8 unless otherwise required or prohibited by law, to the best of its kn...
By Allergan. Allergan may, without prejudice to any other remedies available to it under Applicable Law or in equity, terminate this Agreement if Editas shall have materially breached or defaulted in the performance of its obligations hereunder, and such default shall have continued for [**] (or, in the case of a payment breach, [**]) after written notice thereof was provided to Editas by Allergan, such notice describing the alleged breach. Subject to Section 10.5(c), any such termination of this Agreement under this Section 10.5(a) shall become effective at the end of such [**] or [**], as applicable, cure period, unless Editas has cured such breach or default prior to the expiration of such cure period, or if such breach is not susceptible to cure within such cure period even with the use of commercially reasonable efforts, Allergan’s right to termination shall be suspended only if and for so long as Editas has provided to Allergan a written plan that is reasonably calculated to effect a cure, such plan is acceptable to Allergan, and Editas commits to and does carry out such plan; provided that, in no event shall such suspension of Allergan’s right to terminate extend beyond [**] after the original cure period. The right of Allergan to terminate this Agreement as provided in this Section 10.5(a) shall not be affected in any way by Allergan’s waiver or failure to take action with respect to any previous default.
By Allergan. Allergan hereby agrees to indemnify and hold Ligand and its Affiliates and their respective agents and employees harmless from and against any and all suits, claims, actions, demands, liabilities, expenses and/or losses, including reasonable legal expenses and attorneys' fees ("Losses"), including, without limitation, any claim or liability based upon negligence, warranty, strict liability, violation of government regulation or infringement of patent *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. or other proprietary rights, arising from or occurring as a result of (a) the research, development, manufacture, sale or use of Allergan Selected Compounds, regardless of whether Ligand conducted any such activities with respect to one or more Allergan Selected Compounds prior to the Closing Date or during the Transition Period, or (b) subject to Section 11.2 of the License Agreement, any material breach of this Agreement by Allergan. Allergan shall have no indemnification obligations hereunder in any case where such Losses are based upon the gross negligence or willful misconduct of Ligand.
By Allergan. ALLERGAN represents and warrants that as of the Effective Date:
4.1.1 ALLERGAN is a corporation duly organized, validly existing, and in good standing under the laws of the state of Delaware;
4.1.2 The execution, delivery, and performance of this Agreement by ALLERGAN have been duly authorized by all requisite corporate action and do not require any shareholder action or approval;
4.1.3 The execution, delivery, and performance by ALLERGAN of this Agreement and its compliance with the terms and provisions hereof do not and will not conflict with or result in a breach of any of the terms and provisions of or constitute a default under (a) any agreement with a Third Party, including but not limited to a loan agreement, guaranty, financing agreement, agreement affecting a Product, or other agreement or instrument binding or affecting it or its property; (b) the provisions of its charter or operative documents or bylaws; or (c) any order, writ, injunction, or decree of any court or governmental authority entered against it or by which any of its property is bound; and
4.1.4 ALLERGAN has the right and authority to provide the Support Services to GSK and its Affiliates pursuant to the terms and conditions set forth in this Agreement in the Territory.
By Allergan. Allergan agrees to defend and indemnify and hold Orthovita and its Affiliates harmless against any and all claims, suits, proceedings, expenses, recoveries and damages of or by third parties, including court costs and reasonable attorneys fees and expenses, to the extent they arise out of, are based on, or are caused by (i) any breach by Allergan of its warranty or (ii) the willful misconduct or gross negligence of Allergan; in each case except to the extent that such arise from or are aggravated by negligent or wrongful acts or omissions of Orthovita. Orthovita will promptly notify the Allergan of any such claim or demand, which comes to its attention. The limitations set forth in Article 7 shall continue to apply to any claims made or damages incurred by Orthovita, but shall not apply to claims made or damages incurred by third parties for which Allergan is obligated to indemnify Orthovita under this Section; provided that in no event shall Allergan be liable under any circumstances for any costs of recall, whether incurred by Orthovita or third parties except as provided in Section 9.2 of this Agreement. *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST UNDER 17 C.F.R. SECTIONS 200.80(B)(4) AND 230.406.
By Allergan. Requirements are addressed as part of the Quality Agreement.
By Allergan. Allergan shall indemnify, defend and hold Ista, its directors, employees, agents and representatives harmless from and against all claims, causes of action, settlement costs (including reasonable attorney fees and expenses), losses or liabilities of any kind arising out of Allergan's or its Affiliates' or sublicensees' handling, possession, use, marketing, distribution or sale of any Finished Product following delivery of the Finished Product to Allergan at Ista's shipping point, except to the extent such damages give rise to an indemnification claim of Allergan under Section 6.2 above, or Section 12.1 of the License Agreement. Notwithstanding the foregoing, in the event that Allergan exercises its Manufacturing License or Second Source License pursuant to Sections 2.8 or 2.9 herein, then Allergan shall be required to provide the indemnification requirements of Section 6.2 as if it were Ista for purposes of that Section.
