EACH REPRESENTS AND WARRANTS THAT AS OF THE EFFECTIVE DATE ALL
NECESSARY CONSENTS, APPROVALS AND AUTHORIZATIONS OF ALL GOVERNMENT AUTHORITIES
AND OTHER PERSONS REQUIRED TO BE OBTAINED BY SUCH PARTY IN CONNECTION WITH
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN OBTAINED.
SECTION 5.3
NO CONFLICT.
CEPHALON AND
ACUSPHERE EACH REPRESENTS AND WARRANTS 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.
CEPHALON AND ACUSPHERE EACH REPRESENTS AND WARRANTS 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 V.
7
SECTION 5.5
LITIGATION.
ACUSPHERE
REPRESENTS AND WARRANTS THAT THERE IS NO PENDING OR, TO ITS KNOWLEDGE,
THREATENED LITIGATION AGAINST IT RELATING TO AI-850TM, EXCEPT AS DISCLOSED IN
EXHIBIT A ATTACHED HERETO.
SECTION 5.6
INTELLECTUAL PROPERTY.
ACUSPHERE REPRESENTS AND WARRANTS TO CEPHALON THAT, AS OF THE EFFECTIVE DATE,
(A) ACUSPHERE OWNS THE ENTIRE RIGHT, TITLE AND INTEREST IN AND TO THE LICENSED
PATENT RIGHTS AND LICENSED KNOW-HOW, (B) ACUSPHERE HAS THE RIGHT TO GRANT TO
CEPHALON 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
PERTAINING TO, OR ANY PROCEEDING WHICH IS PENDING OR THREATENED, THAT ASSERTS
THE INVALIDITY, MISUSE OR UNENFORCEABILITY OF THE LICENSED PATENT RIGHTS OR
CHALLENGES ACUSPHERE'S OWNERSHIP OF THE LICENSED PATENT RIGHTS OR LICENSED
KNOW-HOW OR MAKES ANY ADVERSE CLAIM WITH RESPECT THERETO, AND, TO THE KNOWLEDGE
OF ACUSPHERE, THERE IS NO BASIS FOR ANY SUCH CLAIM, DEMAND OR PROCEEDING, (E) TO
THE KNOWLEDGE OF ACUSPHERE, 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 ACUSPHERE, AI-850TM AND THE PROCESS USED TO MAKE
AI-850TM DOES NOT INFRINGE ANY THIRD PARTY PATENT RIGHTS, EXCEPT AS DISCLOSED IN
WRITING TO CEPHALON,
AND (G) THE LICENSED PATENT RIGHTS INCLUDE ALL OF THE
PATENT RIGHTS CONTROLLED BY ACUSPHERE ON THE EFFECTIVE DATE WHICH COVER THE HDDS
TECHNOLOGYTM IN THE FIELD OR, IN THE CASE OF PATENT APPLICATIONS INCLUDED IN THE
PATENT RIGHTS, CLAIMS IF ISSUED,
WOULD COVER THE HDDS TECHNOLOGYTM IN THE FIELD
.
SECTION 5.7
NO WARRANTIES.
EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PARTIES MAKE NO REPRESENTATIONS AND
EXTEND