NOT UNREASONABLY WITHHELD.
(I)
INFORMATION CONFIDENTIAL.
EACH OF THE PARTIES HEREBY
ACKNOWLEDGES AND AGREES THAT INFORMATION, IF ANY, SHARED BY A PARTY REGARDING
ENFORCEMENT ACTIONS IS HIGHLY CONFIDENTIAL AND SHALL NOT BE DISCLOSED TO ANY
THIRD PARTY WITHOUT PRIOR WRITTEN CONSENT FROM THE PARTY PRODUCING OR DISCLOSING
SUCH INFORMATION.
THE PARTIES AGREE THAT THERE SHALL BE A COMMUNITY OF INTEREST
WITH RESPECT TO ANY SHARED INFORMATION REGARDING ENFORCEMENT AND THAT DISCLOSURE
TO ONE ANOTHER OF SUCH INFORMATION SHALL IN NO WAY AFFECT THE CONFIDENTIAL
NATURE OF THE INFORMATION OR ITS QUALIFICATION FOR PROTECTION FROM DISCOVERY AS
ATTORNEY CLIENT COMMUNICATIONS AND/OR ATTORNEY WORK PRODUCT.
8
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF VISION-SCIENCES
Vision-Sciences represents and warrants to Medtronic as follows:
4.1)
ORGANIZATION; DIRECTORS AND OFFICERS.
VISION-SCIENCES IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE.
VISION-SCIENCES HAS ALL NECESSARY POWER AND AUTHORITY
TO OWN ITS PROPERTIES AND ASSETS AND CONDUCT THE BUSINESS PRESENTLY BEING
CONDUCTED BY IT.
4.2)
AUTHORITY.
VISION-SCIENCES HAS FULL POWER AND AUTHORITY TO ENTER
INTO THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER.
THIS AGREEMENT
HAS BEEN DULY AUTHORIZED, EXECUTED, AND DELIVERED BY VISION-SCIENCES, AND
CONSTITUTES A LEGAL, VALID AND BINDING AGREEMENT OF VISION-SCIENCES, ENFORCEABLE
AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO (A) BANKRUPTCY, INSOLVENCY,
FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM AND SIMILAR LAWS OF GENERAL
APPLICABILITY RELATING TO OR AFFECTING CREDITORS' RIGHTS AND TO GENERAL EQUITY
PRINCIPLES AND (B) LAWS RELATING TO THE AVAILABILITY OF SPECIFIC PERFORMANCE,
INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES.
NO FURTHER PROCEEDING ON THE
PART OF VISION-SCIENCES IS NECESSARY TO AUTHORIZE THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT NOR COMPLIANCE BY VISION-SCIENCES WITH ITS TERMS AND PROVISIONS WILL
VIOLATE (I) ANY PROVISION OF THE CERTIFICATE OF INCORPORATION, BYLAWS OR OTHER
GOVERNING INSTRUMENTS OF VISION-SCIENCES,
(II) ANY CONTRACT, OR GOVERNMENTAL
PERMIT OR LICENSE OF VISION-SCIENCES, OR (III) TO THE KNOWLEDGE OF
VISION-SCIENCES, ANY LAW, STATUTE, REGULATION, INJUNCTION, ORDER OR DECREE OF
ANY GOVERNMENT AGENCY OR AUTHORITY OR COURT TO WHICH VISION-SCIENCES OR ANY OF
THE SPECIFIED ASSETS IS SUBJECT.
4.3)
INTELLECTUAL PROPERTY.
(A)
ALL RIGHT, TITLE AND INTEREST IN AND TO THE VISION-SCIENCES
CURRENT INTELLECTUAL PROPERTY LICENSED UNDER THE LICENSE AGREEMENT IS
EXCLUSIVELY OWNED BY VISION-SCIENCES OR TO THE EXTENT LICENSED BY
VISION-SCIENCES, IS LICENSED EXCLUSIVELY TO VISION-SCIENCES FOR USE IN
APPLICATIONS INCLUDING, BUT NOT LIMITED TO, IN CONNECTION WITH ENDOSHEATH
PRODUCTS WITHOUT ROYALTIES, FEES OR COMMISSIONS, AND FREE AND CLEAR OF ANY
LIENS. THE MANUFACTURE AND SALE OF THE ENDOSHEATH PRODUCTS LISTED ON SCHEDULE A
BY VISION-SCIENCES DO NOT INFRINGE, MISUSE, OR MISAPPROPRIATE THE RIGHTS,
INCLUDING INTELLECTUAL PROPERTY RIGHTS OR CONTRACT RIGHTS, OF OTHERS.
THE
VISION-SCIENCES CURRENT INTELLECTUAL PROPERTY HAS NOT BEEN CHALLENGED IN ANY
JUDICIAL OR ADMINISTRATIVE PROCEEDING.
NEITHER ANY SHAREHOLDER NOR ANY EMPLOYEE
OR CONSULTANT OF VISION-SCIENCES (OR THE EMPLOYER OF ANY SUCH CONSULTANT) HAS
ANY RIGHTS IN OR TO ANY OF THE VISION-SCIENCES CURRENT INTELLECTUAL PROPERTY OR
ANY OF THE ENDOSHEATH