BACKGROUND IP
EXISTING AS OF THE EFFECTIVE DATE HAVE NOT CONSTITUTED OR INVOLVED THE
MISAPPROPRIATION OF TRADE SECRETS OR OTHER RIGHTS OR PROPERTY OF ANY THIRD
PARTY; AND
13.6.2
PATENT MAINTENANCE. TRUE, COMPLETE AND CORRECT COPIES OF THE COMPLETE
FILE WRAPPER AND OTHER MATERIAL CORRESPONDENCE WITH ANY PATENT OFFICE RELATING
TO THE PROSECUTION, VALIDITY AND ENFORCEABILITY OF THE PATENTS WITHIN THE
ALICAFORSEN PATENTS AND THE ICAM-1 SPECIFIC PATENTS EXISTING AT THE EFFECTIVE
DATE HAVE BEEN PROVIDED TO OR MADE AVAILABLE TO ATLANTIC PRIOR TO THE EFFECTIVE
DATE AND, TO THE BEST OF ISIS' KNOWLEDGE, THERE IS NO MATERIAL REASON WHY ANY OF
SUCH PATENTS ARE INVALID.
IN RESPECT OF THE PENDING PATENT APPLICATIONS
INCLUDED WITHIN SUCH PATENTS, ISIS HAS PRESENTED ALL RELEVANT PRIOR ART OF WHICH
IT AND THE INVENTORS ARE AWARE TO THE RELEVANT PATENT EXAMINERS AT THE RELEVANT
PATENT OFFICES; AND
13.6.3
PATENT PROSECUTION.
THE ALICAFORSEN PATENTS AND ICAM-1 SPECIFIC
PATENTS LICENSED HEREUNDER THAT ARE APPLICATIONS AT THE EFFECTIVE DATE ARE BEING
DILIGENTLY PROCURED FROM THE RESPECTIVE PATENT OFFICES AND THE PATENTS WITHIN
SUCH PATENTS LICENSED HEREUNDER THAT ARE GRANTED AT THE EFFECTIVE DATE HAVE BEEN
MAINTAINED PROPERLY AND CORRECTLY AND ALL APPLICABLE FEES HAVE BEEN PAID ON OR
BEFORE THE DUE DATE FOR PAYMENT; AND
13.6.4
THIRD PARTY ACTIONS.
TO THE BEST OF ISIS' KNOWLEDGE, NO ACTIONS,
SUITS, CLAIMS, DISPUTES, OR PROCEEDINGS CONCERNING THE ALICAFORSEN PATENTS, THE
ICAM-1 SPECIFIC PATENTS, OR THE ISIS CORE TECHNOLOGY PATENTS LICENSED HEREUNDER
OR THE ALICAFORSEN PRODUCT ARE CURRENTLY PENDING OR ARE THREATENED IN WRITING,
THAT IF DETERMINED ADVERSELY TO ISIS WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE
ALICAFORSEN PRODUCT OR WOULD IMPAIR ISIS' ABILITY TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT.
13.6.5
ALICAFORSEN.
AS OF THE EFFECTIVE DATE, ISIS DOES NOT CONTROL ANY
PATENTS OTHER THAN THE ALICAFORSEN PATENTS AND THE ICAM-1 SPECIFIC PATENTS THAT
WOULD BE NECESSARY TO DEVELOP OR COMMERCIALIZE ALICAFORSEN PRODUCTS OR TO
MANUFACTURE ALICAFORSEN PRODUCT OR ALICAFORSEN API OTHER THAN THE PATENTS WITHIN
EXCLUDED ISIS IP.
SECTION 13.7
ATLANTIC REPRESENTATIONS, WARRANTIES, AND COVENANTS.
ATLANTIC
HEREBY REPRESENTS, WARRANTS AND COVENANTS TO ISIS THAT:
13.7.1
CAPABILITIES.
ATLANTIC HAS THE REQUISITE PERSONNEL, EXPERTISE,
EXPERIENCE AND SKILL TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT; ATLANTIC'S
SALES REPRESENTATIVES WILL
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PERFORM IN A PROFESSIONAL, TIMELY, COMPETENT AND EFFICIENT MANNER; AND ATLANTIC,
ITS AFFILIATES, AND ITS SUBLICENSEES WILL AT ALL TIMES COMPLY WITH ALL
APPLICABLE LAWS.
13.7.2
CAPITALIZATION.
APPENDIX 6 CONTAINS A COMPLETE AND CORRECT TABLE
SHOWING THE CAPITALIZATION OF ATLANTIC AS OF THE EFFECTIVE DATE, ON A
FULLY-DILUTED BASIS.
EXCEPT AS SET FORTH IN APPENDIX 6, THERE ARE NO
OUTSTANDING SHARES OF CAPITAL STOCK OF ATLANTIC OR WARRANTS, OPTIONS,
AGREEMENTS, CONVERTIBLE SECURITIES OR OTHER COMMITMENTS PURSUANT TO WHICH
ATLANTIC IS OR MAY BECOME OBLIGATED TO ISSUE ANY SHARES OF ITS CAPITAL STOCK OR
OTHER SECURITIES.
ATLANTIC UNDERSTANDS AND AGREES THAT ISIS IS RELYING UPON
THESE REPRESENTATIONS AND WARRANTIES WHEN ACCEPTING THE ISSUANCE OF ATLANTIC
EQUITY SECURITIES UNDER SECTION 6.1 ABOVE.
SECTION 13.8
DISCLAIMER OF WARRANTY.
EXCEPT FOR THE EXPRESS WARRANTIES