6.1.2(A) AND 6.1.2(B) SHALL CONTINUE, PROVIDED, THAT, THE PARTIES SHALL
NEGOTIATE, IN GOOD FAITH, THE TERMS OF PAYMENT TO DS BY ARQULE FOR ANY SUCH
LICENSES, AND IN THE CASE OF TERMINATION BY DS
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PURSUANT TO SECTION 9.2.2, ARQULE SHALL CONTINUE TO BE SUBJECT TO THE
OBLIGATIONS SET FORTH IN SECTION 6.4.1 FOR ONE (1) YEAR FOLLOWING SUCH
TERMINATION; AND
(C)
EACH PARTY SHALL PROMPTLY RETURN ALL CONFIDENTIAL INFORMATION AND
PROPRIETARY MATERIALS OF THE OTHER PARTY THAT ARE NOT SUBJECT TO A CONTINUING
LICENSE HEREUNDER; PROVIDED, THAT, EACH PARTY MAY RETAIN ONE COPY OF THE
CONFIDENTIAL INFORMATION OF THE OTHER PARTY IN ITS ARCHIVES SOLELY FOR THE
PURPOSE OF ESTABLISHING THE CONTENTS THEREOF AND ENSURING COMPLIANCE WITH ITS
OBLIGATIONS HEREUNDER.
9.4
Surviving Provisions.
Termination or expiration of this Agreement
for any reason shall be without prejudice to:
(A)
SURVIVAL OF RIGHTS SPECIFICALLY STATED IN THIS AGREEMENT TO
SURVIVE, INCLUDING WITHOUT LIMITATION AS SET FORTH IN SECTION 9.3;
(B)
THE RIGHTS AND OBLIGATIONS OF THE PARTIES PROVIDED IN ARTICLES 1,
5, 7, 8 (WITH RESPECT TO JOINT PATENT RIGHTS AND DS PATENT RIGHTS LICENSED TO
ARQULE PURSUANT TO SECTION 9.3.1(E)(II)), 10, 11 AND 12 AND SECTIONS 3.10.4(B),
6.3, 9.3 AND 9.4 SHALL SURVIVE SUCH TERMINATION EXCEPT AS PROVIDED IN THIS
ARTICLE 9;
(C)
THE OBLIGATIONS OF EITHER PARTY THAT HAVE ACCRUED PRIOR TO
TERMINATION OR EXPIRATION, INCLUDING, WITHOUT LIMITATION, ANY MILESTONE, ROYALTY
RELATING TO A DATE OR PERIOD PRIOR TO TERMINATION OR EXPIRATION; AND
(D)
ANY OTHER RIGHTS OR REMEDIES PROVIDED AT LAW OR EQUITY WHICH
EITHER PARTY MAY OTHERWISE HAVE.
10.
REPRESENTATIONS AND WARRANTIES
10.1
Mutual Representations and Warranties.
ARQULE and DS each
represents and warrants to the other, as of the Effective Date, as follows:
10.1.1
ORGANIZATION.
IT IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION, AND
HAS ALL REQUISITE POWER AND AUTHORITY, CORPORATE OR OTHERWISE, TO EXECUTE,
DELIVER AND PERFORM THIS AGREEMENT.
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10.1.2
AUTHORIZATION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
PERFORMANCE BY IT OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND WILL NOT VIOLATE (A) SUCH
PARTY'S CERTIFICATE OF INCORPORATION OR BYLAWS, (B) ANY AGREEMENT, INSTRUMENT OR
CONTRACTUAL OBLIGATION TO WHICH SUCH PARTY IS BOUND IN ANY MATERIAL RESPECT,
(C) ANY REQUIREMENT OF ANY APPLICABLE LAWS, OR (D) ANY ORDER, WRIT, JUDGMENT,
INJUNCTION, DECREE, DETERMINATION OR AWARD OF ANY COURT OR GOVERNMENTAL AGENCY
PRESENTLY IN EFFECT APPLICABLE TO SUCH PARTY.
10.1.3
BINDING AGREEMENT.
THIS AGREEMENT IS A LEGAL, VALID AND BINDING
OBLIGATION OF SUCH PARTY ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS AND
CONDITIONS.
10.1.4
NO INCONSISTENT OBLIGATION.
IT IS NOT UNDER ANY OBLIGATION,
CONTRACTUAL OR OTHERWISE, TO ANY PERSON THAT CONFLICTS WITH OR IS INCONSISTENT
IN ANY RESPECT WITH THE TERMS OF THIS AGREEMENT OR THAT WOULD IMPEDE THE
DILIGENT AND COMPLETE FULFILLMENT OF ITS OBLIGATIONS HEREUNDER.
10.2
Additional Representations of ARQULE.
ARQULE represents and
warrants to DS as follows: