THIRD PARTY OTHER THAN THOSE CONSENTS AND APPROVALS WHICH HAVE BEEN
OBTAINED PRIOR TO THE DATE HEREOF; OR (V) VIOLATE ANY LEGAL REQUIREMENT
APPLICABLE TO WATSON IN ANY MATERIAL RESPECT.
(D)
ENFORCEABILITY. THIS AGREEMENT CONSTITUTES THE VALID AND BINDING
OBLIGATION OF WATSON, ENFORCEABLE AGAINST WATSON IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO BANKRUPTCY REORGANIZATION, INSOLVENCY AND OTHER SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS IN GENERAL AND TO GENERAL
PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY
OR AN ACTION AT LAW).
(E)
BROKER. WATSON HAS NOT EMPLOYED ANY BROKER OR FINDER WITH RESPECT
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(F)
WATSON TRADEMARKS. TO THE KNOWLEDGE OF WATSON, THE USE OF THE
WATSON TRADEMARKS TO PROMOTE AND SELL PRODUCT IN THE TERRITORY IN ACCORDANCE
WITH THIS AGREEMENT WILL NOT INFRINGE ANY TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS OF ANY THIRD PARTY.
(G)
LITIGATION. THERE IS NO LITIGATION, ARBITRATION PROCEEDING,
GOVERNMENTAL INVESTIGATION, ACTION OR CLAIMS OF ANY KIND, PENDING OR, TO THE
KNOWLEDGE OF WATSON, THREATENED, BY OR AGAINST WATSON OR ANY OF ITS AFFILIATES
RELATING TO THE PRODUCT OR WHICH WOULD REASONABLY BE EXPECTED TO MATERIALLY
AFFECT WATSON'S ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER.
SECTION 9.3
DEPOMED DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
DEPOMED DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE
PRODUCT, INCLUDING THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE.
SECTION 9.4
WATSON DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
WATSON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE X
INTELLECTUAL PROPERTY MATTERS
SECTION 10.1
INFRINGEMENT.
(A)
IF EITHER PARTY SHALL LEARN OF A CLAIM OR ASSERTION THAT THE
MANUFACTURE, USE OR SALE OF THE PRODUCT IN THE TERRITORY INFRINGES OR OTHERWISE
VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY OR THAT ANY THIRD
PARTY VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OWNED OR CONTROLLED BY (I)
DEPOMED IN THE PRODUCT AND THE DEPOMED TRADEMARKS IN THE TERRITORY OR (II)
WATSON IN THE WATSON TRADEMARKS, THEN THE PARTY BECOMING SO INFORMED SHALL
PROMPTLY, BUT IN
5
ALL EVENTS WITHIN FIFTEEN (15) BUSINESS DAYS THEREOF, NOTIFY THE OTHER PARTY TO
THIS AGREEMENT OF THE CLAIM OR ASSERTION.
(B)
IF WARRANTED IN THE OPINION OF DEPOMED, AFTER CONSULTATION WITH
THE JSC, DEPOMED SHALL TAKE SUCH LEGAL ACTION AS IS ADVISABLE IN DEPOMED'S
OPINION TO RESTRAIN INFRINGEMENT OF SUCH DEPOMED PATENT RIGHTS OR THE DEPOMED
TRADEMARKS. WATSON SHALL COOPERATE FULLY WITH, AND AS REASONABLY REQUESTED BY,
DEPOMED IN DEPOMED'S ATTEMPT TO RESTRAIN SUCH INFRINGEMENT, AND DEPOMED SHALL
REIMBURSE WATSON FOR ITS OUT-OF-POCKET EXPENSES INCURRED IN PROVIDING SUCH
COOPERATION. WATSON MAY BE REPRESENTED BY COUNSEL OF ITS OWN SELECTION AT ITS
OWN EXPENSE IN ANY SUIT OR PROCEEDING BROUGHT TO RESTRAIN SUCH INFRINGEMENT, BUT
DEPOMED SHALL HAVE THE RIGHT TO CONTROL THE SUIT OR PROCEEDING.
(C)
IF WARRANTED IN THE OPINION OF WATSON, WATSON SHALL TAKE SUCH
LEGAL ACTION AS IS ADVISABLE IN WATSON'S OPINION TO