SHEET AND/OR THE
AGREEMENT;
D.
THIS TERM SHEET HAS BEEN DULY EXECUTED BY SUCH PARTY AND
CONSTITUTES A VALID AND LEGALLY BINDING OBLIGATION OF SUCH PARTY, ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS;
E.
SUCH PARTY REPRESENTS AND WARRANTS THAT IT HAS BEEN ADVISED BY
ITS COUNSEL OF ITS RIGHTS AND OBLIGATIONS UNDER THE TERM SHEET AND ENTERS INTO
THE TERM SHEET FREELY, VOLUNTARILY, AND WITHOUT DURESS, THAT IT UNDERSTANDS AND
AGREES THAT THIS TERM SHEET AND ANY RESULTING AGREEMENT SHALL THEREFORE BE
DEEMED TO HAVE BEEN NEGOTIATED AND PREPARED AT THE JOINT REQUEST, DIRECTION AND
INSTRUCTION OF EACH OF THE PARTIES, AT ARM'S LENGTH, WITH THE ADVICE AND
PARTICIPATION OF COUNSEL, AND WILL BE INTERPRETED IN ACCORDANCE WITH ITS TERMS
WITHOUT FAVOR TO EITHER PARTY; AND
F.
SUCH PARTY REPRESENTS AND WARRANTS THAT IT IS NOT RELYING ON
ANY PROMISES, INDUCEMENTS, OR REPRESENTATIONS OTHER THAN THOSE PROVIDED HEREIN.
9.
Miscellaneous.
A.
THE PARTIES WOULD AGREE THAT THE LICENSES TO THE PATENTS IN
SUIT, INDIVIDUALLY AND/OR COLLECTIVELY, SERVE AS VALID CONSIDERATION SUFFICIENT
TO SUPPORT THIS TERM SHEET AND/OR ANY RESULTING AGREEMENT.
B.
THE PARTIES WOULD AGREE TO DISMISS THE PENDING LITIGATION WITH
PREJUDICE, WITH EACH SIDE TO BEAR ITS OWN COSTS AND ATTORNEYS' FEES.
C.
EXCEPT AS THE PARTIES SHALL AGREE IS NECESSARY TO GIVE EFFECT
TO SECTION 9(E) BELOW AND AS CONTEMPLATED BY THE USUAL EXCEPTIONS TO
CONFIDENTIAL TREATMENT (INCLUDING REQUIREMENTS OF LAW, INCLUDING STATUTES
RELATING TO SEC AND FTC DISCLOSURE AND/OR REVIEW), THE PARTIES WOULD AGREE THAT
THE TERMS OF THIS TERM SHEET AND ANY RESULTING AGREEMENT ARE TO BE TREATED AS
CONFIDENTIAL INFORMATION.
D.
THE PARTIES WOULD AGREE THAT IF ONE OR MORE PROVISIONS OF THIS
TERM SHEET OR ANY RESULTING AGREEMENT IS RULED WHOLLY OR PARTLY INVALID OR
UNENFORCEABLE BY A COURT OR OTHER GOVERNMENTAL BODY OF COMPETENT JURISDICTION,
THEN THE VALIDITY OR ENFORCEABILITY OF ALL OTHER PROVISIONS OF THIS TERM SHEET
AND/OR SUCH AGREEMENT SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED, TO THE
EXTENT REASONABLY SEVERABLE.
E.
THE PARTIES WOULD AGREE TO SEEK THE GUIDANCE OF MAGISTRATE
THYNGE REGARDING THE POSSIBILITY OF OBTAINING COURT APPROVAL OF THE TERMS OF
THIS TERM SHEET AND/OR ANY RESULTING 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.
9
F.
SUBJECT TO CEPHALON'S RIGHT IN ANY PROCEEDING TO ASSERT THIS
TERM SHEET AND/OR ANY RESULTING AGREEMENT IN DEFENSE OF ANY OF ITS RIGHTS UNDER
SECTION 4(F) - (H) ABOVE, THIS TERM SHEET AND ANY RESULTING AGREEMENT WOULD NOT
BE ADMISSIBLE OR OTHERWISE RELIED UPON OR DISCLOSED (UNLESS SUCH DISCLOSURE IS
REQUIRED BY LAW) IN CONNECTION WITH ANY PROCEEDING CONCERNING ANY OR ALL OF THE
PATENTS IN SUIT AND A PRODUCT THAT WAS NOT THE SUBJECT OF THE LITIGATION, OR
WITH ANY OTHER PROCEEDING EXCEPT AS PART OF A PROCEEDING TO ENFORCE THE TERMS OF