COMPANY EACH REPRESENTS AND WARRANTS TO THE OTHER THAT, AS OF THE EFFECTIVE
DATE, THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF SUCH
PARTY'S OBLIGATIONS HEREUNDER (A) DO NOT CONFLICT WITH OR VIOLATE ANY
REQUIREMENT OF APPLICABLE LAWS OR REGULATIONS AND (B) DO NOT CONFLICT WITH,
VIOLATE OR BREACH OR CONSTITUTE A DEFAULT OF, OR REQUIRE ANY CONSENT UNDER, ANY
CONTRACTUAL OBLIGATIONS OF SUCH PARTY, EXCEPT SUCH CONSENTS AS HAVE BEEN
OBTAINED AS OF THE EFFECTIVE DATE.
SECTION 5.4
EMPLOYEE, CONSULTANT AND
ADVISOR OBLIGATIONS. THE PURCHASER AND THE COMPANY EACH REPRESENTS AND WARRANTS
TO THE OTHER THAT, AS OF THE EFFECTIVE DATE, EACH OF ITS AND ITS AFFILIATES'
EMPLOYEES, CONSULTANTS AND ADVISORS HAS EXECUTED AN AGREEMENT OR HAS AN EXISTING
OBLIGATION UNDER LAW OBLIGATING SUCH EMPLOYEE, CONSULTANT OR ADVISOR TO MAINTAIN
THE CONFIDENTIALITY OF CONFIDENTIAL INFORMATION TO THE EXTENT REQUIRED UNDER
ARTICLE IV.
SECTION 5.5
LITIGATION. THE COMPANY
REPRESENTS AND WARRANTS THAT THERE IS NO PENDING OR, TO ITS KNOWLEDGE,
THREATENED LITIGATION AGAINST IT RELATING TO THE PRODUCTS OR THE PRODUCT
INTELLECTUAL PROPERTY, EXCEPT AS DISCLOSED IN EXHIBIT C HERETO.
SECTION 5.6
INTELLECTUAL PROPERTY. THE
COMPANY REPRESENTS AND WARRANTS TO THE PURCHASER THAT, AS OF THE EFFECTIVE DATE,
AND EXCEPT AS DESCRIBED IN SECTION 3.5, (A) THE COMPANY OWNS THE ENTIRE RIGHT,
TITLE AND INTEREST IN AND TO THE LICENSED PATENT RIGHTS AND LICENSED KNOW-HOW,
(B) THE COMPANY HAS THE RIGHT TO GRANT TO THE PURCHASER THE RIGHTS AND LICENSES
UNDER THE LICENSED PATENT RIGHTS AND LICENSED KNOW-HOW GRANTED IN THIS
AGREEMENT, (C) NONE OF THE LICENSED PATENT RIGHTS WAS FRAUDULENTLY PROCURED FROM
THE RELEVANT GOVERNMENTAL PATENT GRANTING AUTHORITY, (D) AS OF THE EFFECTIVE
DATE, THERE IS NO CLAIM OR DEMAND OF ANY PERSON
*CONFIDENTIAL TREATMENT REQUESTED
11
PERTAINING TO, OR ANY PROCEEDING WHICH IS PENDING OR THREATENED, THAT ASSERTS
THE INVALIDITY, MISUSE OR UNENFORCEABILITY OF THE LICENSED PATENT RIGHTS OR
CHALLENGES THE COMPANY'S OWNERSHIP OF THE LICENSED PATENT RIGHTS OR LICENSED
KNOW-HOW OR MAKES ANY ADVERSE CLAIM WITH RESPECT THERETO, AND, TO THE KNOWLEDGE
OF THE COMPANY, THERE IS NO BASIS FOR ANY SUCH CLAIM, DEMAND OR PROCEEDING,
(E) TO THE KNOWLEDGE OF THE COMPANY, AS OF THE EFFECTIVE DATE, THE LICENSED
PATENT RIGHTS ARE NOT BEING INFRINGED AND THE LICENSED KNOW-HOW IS NOT BEING
USED BY ANY THIRD PARTY, (F) TO THE KNOWLEDGE OF THE COMPANY, THE PRODUCTS AND
THE PROCESSES USED TO MAKE THE PRODUCTS DO NOT INFRINGE ANY THIRD PARTY PATENT
RIGHTS, EXCEPT AS DISCLOSED IN EXHIBIT C, AND (G) THE LICENSED PATENT RIGHTS
INCLUDE ALL OF THE PATENT RIGHTS CONTROLLED BY THE COMPANY ON THE EFFECTIVE DATE
WHICH COVER THE PRODUCT, OR, IN THE CASE OF PATENT APPLICATIONS INCLUDED IN THE
PATENT RIGHTS, CLAIMS IF ISSUED, WOULD COVER THE PRODUCT.
SECTION 5.7
NO WARRANTIES. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PARTIES MAKE NO REPRESENTATIONS AND
EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
Article VI
Term and Termination
SECTION 6.1
TERM. THIS AGREEMENT SHALL
BECOME EFFECTIVE