DUE UNDER SECTIONS 5.2, 5.3, 5.4, 5.5 AND 5.6, AS APPLICABLE, UNTIL THE
CUMULATIVE AMOUNT OF SUCH REDUCTIONS EQUALS THE FULL AMOUNT OF SUCH DAMAGES OR
ROYALTIES ACTUALLY PAID BY LICENSEE TO SUCH THIRD PARTY; PROVIDED, HOWEVER, THIS
SECTION 10.1 SHALL NOT APPLY WITH RESPECT TO THIRD PARTY PATENT RIGHTS UNLESS
THE USE OF PRODUCT FOR MENOPAUSE INDICATIONS, AS OPPOSED TO ANY OTHER
INDICATION, IS A NECESSARY ELEMENT OF THE INFRINGEMENT OF SUCH PATENT RIGHTS;
AND PROVIDED FURTHER, THAT LICENSOR SHALL NOT BE REQUIRED TO RETURN, OR FOREGO
PAYMENT OF,
* * * Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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AMOUNTS PREVIOUSLY ACCRUED OR ANY OF THE PAYMENTS PREVIOUSLY MADE BY LICENSEE TO
LICENSOR.
11.
REPRESENTATIONS AND WARRANTIES
11.1
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES.
LICENSOR AND LICENSEE EACH HEREBY REPRESENTS AND WARRANTS TO THE OTHER, AS OF
THE EFFECTIVE DATE AS FOLLOWS:
11.1.1
IT IS A CORPORATION, DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION AND
HAS ALL REQUISITE POWER AND AUTHORITY, CORPORATE OR OTHERWISE, TO CONDUCT ITS
BUSINESS AS NOW BEING CONDUCTED, TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO
EXECUTE, DELIVER AND PERFORM THIS AGREEMENT.
11.1.2
NEITHER IT, NOR ANY OF ITS EMPLOYEES OR CONSULTANTS WHO
SHALL BE UNDERTAKING ANY ACTIVITIES RELATED TO THIS AGREEMENT OR THE SUBJECT
MATTER THEREOF, HAS BEEN DEBARRED OR IS THE SUBJECT OF DEBARMENT OR OTHER
DISCIPLINARY PROCEEDINGS BY THE FDA OR ANY REGULATORY AUTHORITY IN THE
TERRITORY.
11.1.3
NO CONSENT, APPROVAL, ORDER OR AUTHORIZATION OF, OR
REGISTRATION, DECLARATION OR FILING WITH, ANY GOVERNMENTAL AGENCY IS REQUIRED TO
BE OBTAINED OR MADE BY OR WITH RESPECT TO SUCH PARTY IN CONNECTION WITH ITS
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT.
11.1.4
THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY HAVE BEEN DULY AUTHORIZED BY
ALL NECESSARY CORPORATE ACTION AND STOCKHOLDER ACTION AND WILL NOT (I) VIOLATE
ANY APPLICABLE LAWS OR REGULATIONS OR (II) RESULT IN A BREACH OF OR CONSTITUTE A
DEFAULT UNDER ANY MATERIAL AGREEMENT, MORTGAGE, LEASE, LICENSE, PERMIT OR OTHER
INSTRUMENT OR OBLIGATION TO WHICH IT IS A PARTY OR BY WHICH IT OR ITS PROPERTIES
MAY BE BOUND OR AFFECTED; PROVIDED, HOWEVER, THAT THE PARTIES ACKNOWLEDGE THAT
TERMS OF THIS AGREEMENT, WITH RESPECT TO ANY
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SUBLICENSE OF THE LICENSED PATENT ARE SUBJECT TO THE APPROVAL OF UNIVERSITY.
11.1.5
THIS AGREEMENT IS A LEGAL, VALID AND BINDING OBLIGATION
OF SUCH PARTY, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS AND
CONDITIONS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION OR SIMILAR LAWS, FROM TIME TO
TIME IN EFFECT, AFFECTING CREDITORS' RIGHTS GENERALLY AND GENERAL PRINCIPLES OF
EQUITY.
11.1.6
IT IS NOT UNDER ANY OBLIGATION TO ANY THIRD PARTY,
CONTRACTUAL OR OTHERWISE, THAT CONFLICTS WITH THE TERMS OF THIS AGREEMENT OR
THAT LIMITS THE RIGHTS OF SUCH PARTY TO FULFILL ITS