NOTHING HEREIN SHALL PRECLUDE ANY
BARR RELEASOR FROM CHALLENGING THE VALIDITY, ENFORCEABILITY, AND/OR INFRINGEMENT
OF THE PATENTS IN SUIT UNDER THE CIRCUMSTANCES SPECIFIED IN SECTION 4(F), AND
SUCH CLAIM OR ARGUMENT IS HEREBY RESERVED. THIS RELEASE SHALL NOT PREVENT OR
IMPAIR THE RIGHT OF BARR TO BRING A PROCEEDING IN COURT OR ANY OTHER FORUM FOR A
BREACH OF THIS TERM SHEET AND/OR THE AGREEMENT OR ANY REPRESENTATION, WARRANTY
OR COVENANT HEREIN.
c.
The Parties agree that within five (5) days of the effective
date of the Agreement, they shall jointly file an order of dismissal with
prejudice, in a mutually acceptable form, with the Court.
The Releases set
forth in Sections 7(a) and 7(b) would be effective as of the effective date of
such dismissal.
d.
"Affiliate" shall mean any entity which controls, is controlled
by, or is under common control with the applicable entity.
For purposes of this
definition, "control" shall mean:
(a) in the case of corporate entities, direct
or indirect ownership of at least fifty percent (50%) of the stock or shares
entitled to vote for the election of directors or otherwise having the power to
control or direct the affairs of such entity; and (b) in the case of
non-corporate entities, direct or indirect ownership of at least 50% of the
equity interest or the power to direct the management and policies of such
non-corporate entities. For the avoidance of doubt, Barr represents that TEVA
Pharmaceutical Industries Ltd. (an Israeli corporation) and TEVA Pharmaceuticals
U.S.A., Inc. (a Delaware corporation) and any such entities' respective
Affiliates are also Affiliates for purposes of this Agreement.
8.
Representations and Warranties.
Each Party would represent and
warrant to each of the other Parties, as of the date of the execution of this
Term Sheet and the date of execution of the Agreement, that:
A.
SUCH PARTY IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION AND HAS FULL
CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS TERM SHEET AND THE AGREEMENT
AND TO CARRY OUT THE PROVISIONS HEREOF;
B.
SUCH PARTY HAS TAKEN ALL CORPORATE ACTION NECESSARY TO AUTHORIZE
THE EXECUTION AND DELIVERY OF THE AGREEMENT AND THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THE TERM SHEET AND THE AGREEMENT, AND THERE ARE NO OTHER
PERSONS OR ENTITIES WHOSE CONSENT TO THIS AGREEMENT OR WHOSE JOINDER HEREIN IS
NECESSARY TO MAKE FULLY EFFECTIVE THE PROVISIONS OF THIS TERM SHEET AND THE
AGREEMENT;
**
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.
8
C.
NEITHER THIS TERM SHEET NOR THE AGREEMENT DOES OR WILL
INTERFERE WITH ANY OTHER AGREEMENT TO WHICH SUCH PARTY HAS ENTERED INTO, AND
THAT SUCH PARTY WILL NOT ENTER INTO ANY AGREEMENT THE EXECUTION AND/OR
PERFORMANCE OF WHICH WOULD VIOLATE OR INTERFERE WITH THIS TERM