TO BE A REFERENCE
TO SECTION 2.1 OF THIS AGREEMENT, AND (II) REFERENCES TO THE "ACTIQ PATENT
RIGHTS LICENSE EFFECTIVE DATE" THE "ACTIQ SF PATENT RIGHTS LICENSE EFFECTIVE
DATE" AND THE "RESPECTIVE LICENSE EFFECTIVE DATE" SHALL BE DEEMED TO BE
REFERENCES TO THE FIRST DAY OF THE EXCLUSIVITY PERIOD);
(H)
SECTION 8.3;
(I)
ARTICLE 9; AND
(J)
ARTICLE 10 (EXCEPT THAT (I) CROSS-REFERENCES SHALL BE DEEMED TO
REFER TO THE CORRESPONDING PROVISIONS OF THIS AGREEMENT TO THE EXTENT INCLUDED
OR INCORPORATED HEREIN, AND (II) IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO,
OR REQUIRED TO PROVIDE, ANY DUPLICATIVE REMEDY, INDEMNIFICATION OR RECOVERY
ARISING FROM THE SAME ACT, OMISSION, FACT OR CIRCUMSTANCE);
provided, however, that the terms and conditions of this Article 4 shall apply
herein as described above if, and only if, the Existing License Effective Date
has not occurred on or prior to December 6, 2006.
4.2
SUPPLY TERMS. THE PROVISIONS OF SECTIONS 6.1 THROUGH 6.4 OF THE
EXISTING LICENSE AND SUPPLY AGREEMENT, AS MODIFIED AND INCORPORATED HEREIN
PURSUANT TO SECTION 4.1 ABOVE, SHALL GOVERN THE PARTIES' RIGHTS AND OBLIGATIONS
WITH RESPECT TO THE SUPPLY OF ACTIQ LICENSED PRODUCT BY CEPHALON TO BARR FOR
SALE BY BARR DURING THE EXCLUSIVITY PERIOD.
5.
TERM
5.1
TERM. THE TERM OF THIS AGREEMENT SHALL COMMENCE AS OF THE
EFFECTIVE DATE AND SHALL REMAIN IN EFFECT UNTIL THE EXISTING LICENSE EFFECTIVE
DATE.
5.2
SURVIVAL OF RIGHTS AND TERMS. TERMINATION OR EXPIRATION OF THIS
AGREEMENT SHALL NOT AFFECT ANY ACCRUED RIGHTS OF EITHER PARTY. THE TERMS AND
CONDITIONS OF ARTICLES 3 AND 6 AND SECTIONS 4(F) AND 4(G) OF THIS AGREEMENT
SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
7
6.
GENERAL
6.1
HEADINGS. THE HEADINGS AND CAPTIONS USED HEREIN ARE FOR THE
CONVENIENCE OF THE PARTIES ONLY AND ARE NOT TO BE CONSTRUED TO DEFINE, LIMIT OR
AFFECT THE CONSTRUCTION OR INTERPRETATION HEREOF.
6.2
SEVERABILITY. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS
FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE OFFENDING PROVISION SHALL NOT
RENDER ANY OTHER PROVISION OF THIS AGREEMENT INVALID OR UNENFORCEABLE, AND ALL
OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE ENFORCEABLE,
UNLESS THE PROVISIONS WHICH HAVE BEEN FOUND TO BE INVALID OR UNENFORCEABLE SHALL
SUBSTANTIALLY AFFECT THE REMAINING RIGHTS OR OBLIGATIONS GRANTED OR UNDERTAKEN
BY EITHER PARTY.
6.3
ENTIRE AGREEMENT. THIS AGREEMENT AND THE ACTIQ SETTLEMENT
AGREEMENT DATED FEBRUARY 1, 2006 BETWEEN THE PARTIES CONTAIN THE ENTIRE
AGREEMENT OF THE PARTIES REGARDING THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS, UNDERSTANDINGS OR CONDITIONS (WHETHER ORAL OR
WRITTEN) REGARDING THE SAME; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED TO CHANGE, AMEND, MODIFY, SUPPLEMENT OR SUPERSEDE ANY TERM OR
CONDITION OF THE