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SEC Filings

OREXIGEN THERAPEUTICS, INC. filed this Form 8-K on 07/31/2018
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that, by their terms, survive the Closing or termination of this Agreement, including Section 2,13, Section 5.16, Section 5.21 and Sections 8.2–8.4) in this Agreement or any agreement or certificate to be executed or delivered in connection with the transactions contemplated by this Agreement shall terminate at the Closing or upon termination of this Agreement pursuant to Section 7.1 and, following the Closing or the termination of this Agreement, as the case may be, no party shall make any claim whatsoever for any breach of any such representation, warranty or covenant hereunder except pursuant to this Article 8, subject to Section 7.2.

Section 8.2.    Indemnification.

(a) Effective at and after the Closing, the Seller hereby indemnifies the Purchaser, its Affiliates, and their respective agents, service providers, employees, officers, directors, successors and assignees (the “Purchaser Indemnified Parties”) against and agrees to hold each of them harmless from any and all damage, loss, liability and expense incurred from after the Closing (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (“Damages”) incurred or suffered by a Purchaser Indemnified Party in any way arising out of, relating to or in connection with the Contrave Holdback Bottles, in each case regardless of whether such Damages arise as a result of the negligence of the Seller, strict liability or any other liability under any theory of law or equity of, or violation of any law by the Seller; provided, however, that no Purchaser Indemnified Party shall be entitled to indemnity under this Section 8.2(a) (x) to the extent that on a dollar-for-dollar basis, the Purchaser has received an amount equal to such Damages for the Contrave Holdback Bottles from Patheon (without duplication of any such amount released to the Seller pursuant to Section 2.13) or the Purchaser has received an amount equal to such Damages and allocated to such Damages from insurance proceeds under Section 5.21(b) (without duplication of any such amount released to the Seller pursuant to Section 2.13), or (y) Damages to the extent arising out of the gross negligence, willful misconduct or fraud of the Purchaser or a breach by the Purchaser of this letter agreement, the Agreement, the TSA, the Sale Order, or any order of the Bankruptcy Court approving any of the foregoing.

(b) Any payment to any Purchaser Indemnified Party in respect of any claim for indemnification by any of the Purchaser Indemnified Parties under Section 8.2(a) shall be taken by the Purchaser solely out of the Holdback Amount. The Holdback Amount shall be the sole security available to the Purchaser for the payment of the Seller’s indemnification obligations hereunder.

Section 8.3.    Third Party Claim Procedures.

(a) The Purchaser agrees to give prompt notice in writing to the Seller of the assertion of any claim or the commencement of any suit, action or proceeding by any third party (“Third Party Claim”) in respect of which indemnity may be sought under Section 8.2. Such notice shall set forth in reasonable detail such Third Party Claim and the basis for indemnification (taking into account the information then available to the Purchaser). The failure to so notify the Seller shall not relieve the Seller of its obligations