SETTLEMENT OR OTHER ACTION BY A PARTY WHICH REQUIRES PAYMENT
OR OTHER ACTION BY THE OTHER PARTY OR SUBJECTS THE OTHER PARTY TO LIABILITY WILL
REQUIRE THE OTHER PARTY'S PRIOR WRITTEN CONSENT, WHICH WILL NOT BE UNREASONABLY
WITHHELD OR DELAYED.
(G)
THE ALLOCATION AND REIMBURSEMENT OF COSTS IN CONNECTION WITH
THE DEFENSE, SETTLEMENT, AND/OR DAMAGE AWARDS UNDER THIS SECTION 8.6 SUPERSEDES
AND REPLACES ANY INDEMNIFICATION THAT MAY OTHERWISE HAVE BEEN AVAILABLE UNDER
ARTICLE X OF THIS AGREEMENT.
8.7
PATENT EXTENSIONS
(A)
IF REQUESTED BY SCHERING, EXCEPT AS SET FORTH BELOW, METABASIS
SHALL COOPERATE IN OBTAINING PATENT TERM RESTORATION (INCLUDING AS PERMITTED
UNDER THE DRUG PRICE COMPETITION AND PATENT TERM RESTORATION ACT), SUPPLEMENTAL
PROTECTION CERTIFICATES OR THEIR EQUIVALENTS, AND PATENT TERM EXTENSIONS WITH
RESPECT TO THE LICENSED PATENTS IN ANY COUNTRY AND/OR REGION WHERE APPLICABLE,
AT SCHERING'S EXPENSE.
METABASIS SHALL PROVIDE ALL REASONABLE ASSISTANCE
REQUESTED BY SCHERING, INCLUDING PERMITTING SCHERING TO PROCEED WITH
APPLICATIONS FOR SUCH IN THE NAME OF METABASIS, IF DEEMED APPROPRIATE BY
SCHERING, AT SCHERING'S EXPENSE.
(B)
SCHERING SHALL IN ITS SOLE DISCRETION DETERMINE WHICH, IF ANY,
LICENSED PATENTS, OTHER THAN METABASIS PATENTS, IT WILL APPLY TO EXTEND.
(C)
METABASIS SHALL COOPERATE WITH SCHERING IN DETERMINING WHICH,
IF ANY, METABASIS PATENTS A PARTY MAY APPLY TO EXTEND.
IN THE EVENT ONE OR MORE
CLAIMS OF SUCH METABASIS PATENT
31
SHALL COVER A POTENTIAL PRODUCT (OTHER THAN THE PRODUCT) IN CLINICAL DEVELOPMENT
BY METABASIS, ITS AFFILIATES OR SUBLICENSEES, METABASIS WILL MAKE THE FINAL
DETERMINATION AS TO WHETHER SUCH METABASIS PATENT SHALL BE EXTENDED.
(D)
IF REQUESTED, METABASIS SHALL PROVIDE REASONABLE ASSISTANCE TO
SCHERING, INCLUDING BY EXECUTING DOCUMENTS AND PROVIDING ANY RELEVANT
INFORMATION TO SCHERING, AT SCHERING'S EXPENSE.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND LIMITATION OF LIABILITY
9.1
REPRESENTATIONS OF METABASIS
Except as otherwise disclosed on Metabasis' Schedule of Exceptions attached to
and made a part of this Agreement, Metabasis represents and warrants to Schering
as follows:
(A)
METABASIS IS A CORPORATION DULY ORGANIZED UNDER THE LAWS OF THE
STATE OF DELAWARE, AND HAS ALL REQUISITE LEGAL AND CORPORATE POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AND TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
(B)
ALL ACTION ON THE PART OF METABASIS NECESSARY FOR THE EXECUTION
AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF METABASIS' OBLIGATIONS
UNDER THIS AGREEMENT HAS BEEN TAKEN.
(C)
THE PERSON(S) EXECUTING THIS AGREEMENT ON BEHALF OF METABASIS
HAVE ALL NECESSARY CORPORATE POWERS AND HAVE BEEN DULY AUTHORIZED BY METABASIS
TO EXECUTE, AND DELIVER THIS AGREEMENT ON ITS BEHALF.
(D)
THIS AGREEMENT CONSTITUTES A VALID AND BINDING OBLIGATION OF
METABASIS, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
(E)
EXCEPT AS HAVE BEEN OR WILL BE OBTAINED BY METABASIS AND EXCEPT
FOR REGULATORY APPROVAL, NO PERMIT, CONSENT, APPROVAL OR AUTHORIZATION OF, OR
DECLARATION TO OR FILING WITH, ANY PERSON, PARTY OR GOVERNMENTAL AUTHORITY IS
REQUIRED IN CONNECTION WITH THE DELIVERY, CONSUMMATION, OR PERFORMANCE BY
METABASIS OF THIS AGREEMENT.
(F)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY
METABASIS WILL NOT, WITH OR WITHOUT NOTICE OR