(b)Representations and Warranties of KIROMIC. KIROMIC hereby represents and warrants to LEON as follows:
(i)Authorization. KIROMIC has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of KIROMIC enforceable in accordance with its terms and conditions except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(ii)Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under KIROMIC’s charter, bylaws or other constituent instruments or under any agreement, contract, lease, license, instrument or other arrangement to which KIROMIC is a party or by which it is bound or to which any of its assets is subject.
(iii)Due Organization and Good Standing. KIROMIC is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has power and authority required (a) to carry on its business as presently conducted and as presently proposed to be conducted and (b) to execute, deliver and perform its obligations under the this Agreement.
(a)Each party shall indemnify, defend and hold the other parties harmless from and against any and all suits, claims, losses, damages, final judgments, reasonable costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) actually incurred (collectively, “Adverse Consequences”), relating to, in connection with, or arising out of, a breach by such party of the representations and warranties made by such party in this Agreement or as the result of the breach of any covenant or agreement of such party contained herein.
(b)The indemnification, defense obligation and hold harmless set forth in this Section 5 shall only be available if the party seeking indemnification (1) promptly notifies the other party in writing of any such Adverse Consequences, (2) allows the other party to have sole control of the defense and all related settlement negotiations; and (3) provides the other party with the information, authority and assistance necessary to perform its obligations under this Section 4.
5.LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.