EFFECT IN
ALL MATERIAL RESPECTS.
(O)
INVENTORY LEVELS.
SINCE JANUARY 1, 2008,
DEPOMED HAS NOT (I) MATERIALLY ALTERED ITS DISTRIBUTION PRACTICES OR TERMS WITH
RESPECT TO THE PRODUCTS (OTHER THAN PRICING INCREASES IN THE ORDINARY COURSE OF
BUSINESS), (II) ALTERED ITS ACTIVITIES AND PRACTICES WITH RESPECT TO INVENTORY
LEVELS OF THE PRODUCTS MAINTAINED AT THE WHOLESALE, CHAIN, INSTITUTIONAL OR
RETAIL LEVELS IN ANY MATERIAL RESPECT, OR (III) EXPERIENCED ABNORMALLY HIGH
LEVELS OF RETURNS OF THE PRODUCTS WHEN COMPARED TO HISTORICAL NORMS.
Section 9.2
Representations and Warranties
of Santarus
Santarus hereby represents and warrants to Depomed as of the date hereof as
follows:
(A)
ORGANIZATION.
SANTARUS (I) IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE, AND (II) HAS ALL NECESSARY CORPORATE POWER AND
CORPORATE AUTHORITY TO OWN ITS PROPERTIES AND TO CONDUCT ITS BUSINESS, AS
CURRENTLY CONDUCTED.
(B)
AUTHORIZATION.
THE EXECUTION AND DELIVERY
OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
ARE WITHIN THE CORPORATE POWER OF SANTARUS, HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE PROCEEDINGS OF SANTARUS, AND THIS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY SANTARUS.
(C)
NO CONFLICT.
THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY DO
NOT:
(I) CONFLICT WITH OR RESULT IN A BREACH OF ANY PROVISION OF SANTARUS'
ORGANIZATIONAL DOCUMENTS; (II) RESULT IN A MATERIAL BREACH OF ANY MATERIAL
AGREEMENT TO WHICH SANTARUS IS PARTY; (III) RESULT IN A VIOLATION OF ANY ORDER
TO WHICH SANTARUS IS SUBJECT; (IV) REQUIRE SANTARUS TO OBTAIN ANY MATERIAL
APPROVAL OR CONSENT FROM ANY GOVERNMENTAL AUTHORITY OR THIRD PARTY OTHER THAN
THOSE CONSENTS AND APPROVALS WHICH HAVE BEEN OBTAINED PRIOR TO THE DATE HEREOF;
OR (V) VIOLATE ANY LEGAL REQUIREMENT APPLICABLE TO SANTARUS IN ANY MATERIAL
RESPECT.
(D)
ENFORCEABILITY.
THIS AGREEMENT CONSTITUTES
THE VALID AND BINDING OBLIGATION OF SANTARUS, ENFORCEABLE AGAINST SANTARUS IN
ACCORDANCE WITH ITS TERMS, SUBJECT TO BANKRUPTCY REORGANIZATION, INSOLVENCY AND
OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS IN GENERAL AND
TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER CONSIDERED IN A
PROCEEDING IN EQUITY OR AN ACTION AT LAW).
(E)
BROKER.
SANTARUS HAS NOT EMPLOYED ANY
BROKER OR FINDER WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(F)
SANTARUS TRADEMARKS.
TO THE KNOWLEDGE OF
SANTARUS, THE USE OF THE SANTARUS TRADEMARKS TO PROMOTE AND SELL PRODUCTS IN THE
TERRITORY IN ACCORDANCE WITH THIS AGREEMENT WILL NOT INFRINGE ANY TRADEMARKS OR
OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
40
(G)
LITIGATION.
THERE IS NO LITIGATION,
ARBITRATION PROCEEDING, GOVERNMENTAL INVESTIGATION, ACTION OR CLAIMS OF ANY
KIND, PENDING OR, TO THE KNOWLEDGE OF SANTARUS, THREATENED, BY OR AGAINST
SANTARUS OR ANY OF ITS AFFILIATES RELATING TO THE PRODUCTS OR WHICH WOULD
REASONABLY BE EXPECTED TO MATERIALLY AFFECT SANTARUS' ABILITY TO PERFORM ITS
OBLIGATIONS HEREUNDER.
(H)
GENERIC DRUG ACT.
PURSUANT TO THE GENERIC
DRUG ACT,
(i)
none of Santarus, its Affiliates, or any
Person under its direction or control is currently