OF THIS AGREEMENT AND THE SELLER ANCILLARY AGREEMENTS OR THE
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER, INCLUDING THE CONSENT
OF EURAND UNDER THE EURAND AGREEMENT (COLLECTIVELY, THE "REQUIRED SELLER THIRD
PARTY CONSENTS").
**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.
22
SECTION 6.05
PRODUCT CONTRACTS.
(A)
SECTION 6.05(A) OF THE SELLER DISCLOSURE SCHEDULE SETS FORTH A
COMPLETE AND CORRECT LIST OF EACH CONTRACT TO WHICH SELLER OR ANY OF ITS
AFFILIATES IS A PARTY THAT:
(I) RELATES TO THE MANUFACTURE, MARKETING, SALE,
LICENSING OR DISTRIBUTION OF THE PRODUCT;(II) RELATES TO THE ACQUISITION, SALE,
LICENSING IN OR OUT, ASSIGNMENT OR USE OF INTELLECTUAL PROPERTY INCLUDED IN THE
PURCHASED ASSETS; (III) RELATES TO THE PURCHASE OR DISPOSITION OF ASSETS, OR THE
PROVISION OF SERVICES, TO OR BY THE BUSINESS; (IV) RELATES TO THE SALE OR
DISTRIBUTION OF THE PRODUCT TO ANY GOVERNMENTAL OR REGULATORY AUTHORITY OR ANY
OTHER PERSON; (V) LIMITS OR RESTRICTS WHERE SELLER MAY CONDUCT THE BUSINESS OR
THE PRODUCT MAY BE SOLD, OR GRANTS ANY PREFERENTIAL RIGHTS TO PURCHASE OR
LICENSE THE PURCHASED ASSETS; OR (VI) IS NOT OTHERWISE DESCRIBED IN CLAUSES (I)
- (V) ABOVE BUT IS MATERIAL TO THE CONDUCT OF THE BUSINESS AS CURRENTLY
CONDUCTED OR AS PLANNED TO BE CONDUCTED IN THE FUTURE, OR WAS NOT ENTERED INTO
BY SELLER IN THE ORDINARY COURSE OF BUSINESS (COLLECTIVELY, THE "PRODUCT
CONTRACTS"). SELLER HAS MADE AVAILABLE TO BUYER COMPLETE AND CORRECT COPIES
(INCLUDING ANY SCHEDULES, ANNEXES, EXHIBITS OR AMENDMENTS) OF ALL CONTRACTS
IDENTIFIED IN SECTION 6.05(A) OF THE SELLER DISCLOSURE SCHEDULE.
(B)
EXCEPT FOR THE CONTRACTS SET FORTH IN SECTION 6.05(B) OF THE
SELLER DISCLOSURE SCHEDULE, THE PRODUCT CONTRACTS ARE THE ONLY CONTRACTS
MATERIAL TO THE CONDUCT OF THE BUSINESS BY SELLER OR ITS AFFILIATES. EACH OF THE
PRODUCT CONTRACTS IS IN FULL FORCE AND EFFECT AND CONSTITUTES A LEGAL, VALID AND
BINDING AGREEMENT, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, OF SELLER AND EACH
OTHER PARTY THERETO AND MAY BE TRANSFERRED TO BUYER PURSUANT TO THIS AGREEMENT
AND WILL CONTINUE IN FULL FORCE AND EFFECT IMMEDIATELY AFTER THE CLOSING, IN
EACH CASE WITHOUT BREACHING THE TERMS THEREOF OR RESULTING IN THE FORFEITURE OR
IMPAIRMENT OF ANY RIGHTS THEREUNDER AND WITHOUT THE CONSENT, APPROVAL OR ACT OF,
OR THE MAKING OF ANY FILING WITH, ANY OTHER PARTY. SELLER HAS PERFORMED IN ALL
MATERIAL RESPECTS ALL OF ITS REQUIRED OBLIGATIONS UNDER, AND IS NOT, AND IS NOT
ALLEGED TO BE, IN VIOLATION OR BREACH OF OR DEFAULT UNDER, IN ANY MATERIAL
RESPECT, ANY SUCH CONTRACT, NOR IS THERE OR IS THERE ALLEGED TO BE ANY BASIS FOR
TERMINATION OF ANY PRODUCT CONTRACT. TO THE KNOWLEDGE OF SELLER, THE OTHER
PARTIES TO THE PRODUCT CONTRACTS ARE NOT IN VIOLATION OR BREACH OF OR DEFAULT
UNDER ANY SUCH CONTRACT. NO CONDITION OR STATE OF FACTS EXISTS WHICH,