Abraxis BioScience (ABII)

WARRANTIES AND LIABILITIES

4.1 Level of Performance. Each party shall use commercially reasonable efforts to provide the Services (i) consistent with the manner in which such Services were provided by Abraxis and its Subsidiaries prior to the Effective Date (but not including any historical preference or priority given to New Alpha’s products as compared with Gholdco’s products) and consistent with such party’s provisions of such Services for its own business, (ii) subject to Section 5.3, using substantially the same resources as were used by Abraxis to provide such Services with respect to the Businesses prior to the Effective Date and (iii) in accordance with the policies, procedures and practices in effect with respect to the Businesses prior to the Effective Date, with such modifications after the Effective Date as are reasonably acceptable to both parties.

4.2 Disclaimer of All Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES (INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES (OR ANY SERVICES PROVIDED BY THIRD PARTIES WITH WHOM A PARTY CONTRACTS IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES) PROVIDED TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY EXHIBITS HEREOF.

4.3 Indemnification.

(a) New Alpha shall, to the full extent permitted by law, indemnify, defend and hold harmless Gholdco, its Subsidiaries, Affiliates, officers, directors, employees, agents (the “Gholdco Indemnified Parties”) and assigns against all claims, liabilities, damages, losses or expenses (“Damages”) that arise out of (i) New Alpha’s gross negligence, bad faith, intentional misconduct or intentional breach of this Agreement, (ii) any claim by any Person who is not a party to this Agreement (or an Affiliate thereof)

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(a “Third Party Claim”) relating to or arising out of Gholdco’s performance of this Agreement and not resulting from Gholdco’s gross negligence, bad faith, intentional misconduct or intentional breach of this Agreement, or (iii) any Third Party Claim relating to or arising out of Gholdco’s performance of this Agreement to the extent the aggregate liability to such persons exceeds the limitation in Section 4.4(b), in each case, including but not limited to settlements, judgments, court costs, attorneys’ fees and other litigation expenses, fines and penalties; provided, however, that, except as set forth in clause (iii) of this Section 4.3(a), New Alpha shall not indemnify, defend or hold harmless any Gholdco Indemnified Party against any liability resulting from the gross negligence, bad faith or intentional misconduct of, or intentional breach of this Agreement by, any Gholdco Indemnified Party in the performance of this Agreement, or against liability under clause (i) above if New Alpha’s gross negligence or willful misconduct results in liability, damage, loss or expense to both New Alpha’s and Gholdco’s business.

(b) Gholdco shall, to the full extent permitted by law, indemnify, defend and hold harmless New Alpha, its Subsidiaries, Affiliates, officers, directors, members, employees, agents (the “New Alpha Indemnified Parties”) and assigns against all Damages that arise out of (i) Gholdco’s gross negligence, bad faith, intentional misconduct or intentional breach of this Agreement, (ii) any Third Party Claim relating to or arising out of New Alpha’s performance of this Agreement and not resulting from New Alpha’s gross negligence, bad faith, intentional misconduct or intentional breach of this Agreement or (iii) any Third Party Claim relating to or arising out of New Alpha’s performance of this Agreement to the extent the aggregate liability to such persons exceeds the limitation in Section 4.4(c), in each case, including but not limited to settlements, judgments, court costs, attorneys’ fees and other litigation expenses, fines and penalties; provided, however, that, except as set forth in clause (iii) of this Section 4.3(b), Gholdco shall not indemnify, defend or hold harmless any New Alpha Indemnified Party against any liability resulting from the gross negligence, bad faith or intentional misconduct of, or intentional breach of this Agreement by, any New Alpha Indemnified Party in the performance of this Agreement, or against liability under clause (i) above if Gholdco’s gross negligence or willful misconduct results in liability, damage, loss or expense to both New Alpha’s and Gholdco’s business.

(c) The procedure by which each of the parties to this Agreement performs its obligations under subsections (a) and (b) above shall be in accordance with Sections 4.04, 4.05 (excluding the last sentence of Section 4.05(a) of the Separation Agreement) and 4.06 of the Separation Agreement.

4.4 Limitation of Liability.

(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY WILL BE LIABLE HEREUNDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS FROM THE USE OF (OR INABILITY TO USE) THE SERVICES OR OTHERWISE IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT, OTHER THAN SOLELY FOR GHOLDCO EXTRAORDINARY FAILURE OR NEW ALPHA EXTRAORDINARY FAILURE, as applicable (both as defined below).

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(b) Notwithstanding anything herein to the contrary, in no event will Gholdco or any of its Affiliates or any other Gholdco Indemnified Parties have any liability to New Alpha or any of its Affiliates or any other New Alpha Indemnified Parties, or to any third party in connection with this Agreement, for Damages in excess of $5 million, except to the extent that such Damages are the result of (i) one of Gholdco’s or its Subsidiaries’ executive officers, in bad faith, affirmatively instructing employees of Gholdco or its Subsidiaries to materially breach Gholdco’s obligation to provide the Gholdco Services under this Agreement, or (ii) any intentional failure by Gholdco, in bad faith, to cure any material breach of Gholdco’s obligation to provide the Gholdco Services under this Agreement (which is capable of being cured) following notice thereof in accordance with Section 7.1 (and such breach is not cured within a reasonable period of time following receipt of written notice of such breach) (any of the occurrences set forth in sub-clauses (i) and (ii) of this Section 4.4, continuing after such cure period, “Gholdco Extraordinary Failure”).

(c) Notwithstanding anything herein to the contrary, in no event will New Alpha or any of its Affiliates or any other New Alpha Indemnified Parties have any liability to Gholdco or any of its Affiliates or any other Gholdco Indemnified Parties, or to any third party in connection with this Agreement, for Damages in excess of $5 million, except to the extent that such Damages are the result of (i) New Alpha’s or its Subsidiaries’ executive officers, in bad faith, affirmatively instructing employees of New Alpha or its Subsidiaries to materially breach New Alpha’s obligation to provide the New Alpha Services under this Agreement, or (ii) any intentional failure by New Alpha, in bad faith, to cure any material breach of New Alpha’s obligation to provide the New Alpha Services under this Agreement (which is capable of being cured) following notice thereof in accordance with Section 7.1 (and such breach is not cured within a reasonable period of time following receipt of written notice of such breach) (any of the occurrences set forth in sub-clauses (1) and (ii) of this Section 4.4(c), continuing after such cure period, “New Alpha Extraordinary Failure”)

ARTICLE V