FULFILLED UPON PERFORMANCE OF THE PARTIES OF THE ACTS SPECIFIED THEREIN, AND ALL
RELEASES SET FORTH IN THIS SECTION 11 AND ALL OTHER RIGHTS AND OBLIGATIONS OF
THE PARTIES SET FORTH IN THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT
REGARDLESS OF WHETHER THE COURT ELECTS TO ADJUDICATE AS THE PARTIES CONTEMPLATE
UNDER SECTION 9 (BUT NOT IF THE COURT DECLINES TO SO ADJUDICATE UNDER SECTION 1)
AND THAT INAMED AGREES TO TAKE ALL REASONABLE STEPS TO PERSUADE THE COURT TO SO
ADJUDICATE UNDER BOTH SECTIONS 1 AND 9.
12.
NO WARRANTIES.
OTHER THAN AS EXPRESSLY SET
FORTH HEREIN, NEITHER PARTY TO THIS AGREEMENT MAKES ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, AND EACH PARTY DISCLAIMS RELIANCE UPON ANY
REPRESENTATION OR WARRANTY NOT EXPLICITLY SET FORTH HEREIN.
13.
ASSIGNABILITY.
THIS LICENSE IS NOT
TRANSFERABLE OR ASSIGNABLE OTHER THAN IN CONNECTION WITH: (I) A TRANSFER OR
ASSIGNMENT TO A PURCHASER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF INAMED;
OR, (II) A MERGER OF A PURCHASER WITH INAMED; OR, (III) AN ACQUISITION OF MORE
THAN A MAJORITY OF THE VOTING SHARES OF INAMED; OR, (IV) A PURCHASE BY THE
ASSIGNEE OF THE ENTIRE ADJUSTABLE GASTRIC BAND BUSINESS (SUBJECT TO PARAGRAPH 14
HEREOF); ***
14.
***
***
Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
5
15.
WARRANTIES AND REPRESENTATIONS.
15.1
NO ASSIGNMENT OF CLAIMS.
EACH PARTY WARRANTS AND
REPRESENTS THAT IT HAS NOT, SOLD, ASSIGNED, CONVEYED, PLEDGED, ENCUMBERED OR IN
ANY WAY TRANSFERRED TO ANY PERSON OR ENTITY ANY CLAIM RELEASE BY SUCH PARTY
UNDER THIS AGREEMENT.
15.2
INDEPENDENT ADVICE.
EACH PARTY WARRANTS AND
REPRESENTS THAT IT HAS RECEIVED INDEPENDENT LEGAL ADVICE FROM SUCH PARTY'S
ATTORNEYS WITH RESPECT TO THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS
AGREEMENT, AND THE ADVISABILITY OF ENTERING INTO THIS AGREEMENT.
15.2
DUE AUTHORIZATION; BINDING OBLIGATION.
EACH PARTY WARRANTS AND
REPRESENTS THAT THE REPRESENTATIVE SIGNING BELOW IS DULY AUTHORIZED TO ENTER
INTO AND DELIVER THIS AGREEMENT, AND THAT IT IS FULLY ENTITLED TO GRANT THE
RELEASES, ENTER INTO THE COVENANTS, AND UNDERTAKE THE OBLIGATIONS SET FORTH
HEREIN.
FURTHER, EACH PARTY HEREBY WARRANTS AND REPRESENTS TO THE OTHER PARTY
THAT THIS AGREEMENT CONSTITUTES A LEGAL, VALID, BINDING OBLIGATION, ENFORCEABLE
AGAINST SUCH PARTY IN ACCORDANCE WITH ITS TERMS.
15.3
LICENSED PATENTS.
ETHICON WARRANTS AND REPRESENTS
THAT ETHICON IS THE SOLE OWNER OR EXCLUSIVE LICENSEE OF THE LICENSED PATENTS.
15.4
SURVIVAL OF WARRANTIES.
ALL WARRANTIES AND
REPRESENTATIONS SET FORTH IN THIS AGREEMENT SHALL SURVIVE THE EXECUTION AND
DELIVERY OF THIS AGREEMENT.
16.
CHOICE OF LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAW OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CHOICE OF LAWS PRINCIPLES.
17.
NO ORAL MODIFICATION.
THIS AGREEMENT MAY BE
MODIFIED ONLY IN A WRITING SIGNED BY THE PARTIES.
18.
NO CONSTRUCTION AGAINST DRAFTER.
ALL PARTIES
PARTICIPATED IN THE REVIEW, DRAFTING AND NEGOTIATION OF THIS AGREEMENT, AND NO
PRESUMPTION SHALL BE APPLIED AGAINST ANY PARTY IN CONNECTION WITH THE
INTERPRETATION OF