THE AGGREGATE PAYMENTS UNDER SECTIONS 4.1 AND 4.2 SHALL
NOT EXCEED TEN MILLION UNITED STATES DOLLARS ($10,000,000.00).
4.3
TAXES.
EACH PARTY SHALL BE SEPARATELY AND INDIVIDUALLY
RESPONSIBLE FOR THE TAX CONSEQUENCES, IF ANY, TO THAT PARTY ASSOCIATED WITH THE
PAYMENTS MADE HEREUNDER.
4.4
NOTWITHSTANDING SECTION 4.3, WHERE REQUIRED BY LAW, TEVA SHALL
HAVE THE RIGHT TO WITHHOLD APPLICABLE TAXES FROM ANY PAYMENT TO BE MADE BY TEVA
TO DEPOMED ACCORDING TO SECTION 4.2.
TEVA SHALL PROVIDE DEPOMED WITH RECEIPTS
FROM THE APPROPRIATE TAXING AUTHORITY FOR ALL PAYMENTS OF TAXES WITHHELD AND
PAID BY TEVA TO SUCH AUTHORITIES ON BEHALF OF DEPOMED.
4.5
[***]
4.6
[***]
4.7
NOTHING IN THE FOREGOING SECTIONS 4.4 THROUGH 4.6 SHALL BE
INTERPRETED TO DIMINISH OR CHANGE IN ANY WAY THE ROYALTY PAYMENT CAP OR THE
MAXIMUM AMOUNT DEPOMED MAY RECEIVE FROM TEVA OF TEN MILLION UNITED STATES
DOLLARS ($10,000,000.00) PURSUANT TO SECTIONS 4.1 AND 4.2.
5.
DISMISSAL AND RELEASES
5.1
DISMISSAL.
PROMPTLY UPON THE RECEIPT OF THE PAYMENT PURSUANT TO
SECTION 4.1, DEPOMED AND IVAX SHALL CAUSE TO BE FILED A FULLY EXECUTED
STIPULATED DISMISSAL IN THE FORM ATTACHED HERETO AS EXHIBIT A.
5.2
DEPOMED HEREBY COVENANTS THAT DEPOMED WILL NOT SUE, ASSERT ANY
CLAIM OR COUNTERCLAIM AGAINST, OR OTHERWISE PARTICIPATE IN ANY ACTION OR
PROCEEDING AGAINST TEVA - OR ANY OF ITS CUSTOMERS, SUPPLIERS, IMPORTERS,
MANUFACTURERS, OR DISTRIBUTORS - OR CAUSE OR AUTHORIZE ANY PERSON OR ENTITY TO DO
ANY OF THE
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FOREGOING, IN EACH CASE CLAIMING OR OTHERWISE ASSERTING THAT THE MANUFACTURE,
USE, IMPORTATION, SALE OR OFFER FOR SALE OF (IN OR FOR THE TERRITORY) ANY TEVA
PRODUCT AB-RATED TO GLUCOPHAGE XR®, INFRINGES ANY LICENSED PATENT OR ANY FOREIGN
COUNTERPART THEREOF (BUT SUCH FOREIGN COUNTERPARTS ONLY TO THE EXTENT THAT THE
APPLICABLE PRODUCT IS MADE OUTSIDE THE TERRITORY ONLY FOR USE IN THE TERRITORY),
WHETHER OCCURRING BEFORE, ON OR AFTER THE EFFECTIVE DATE.
5.3
TEVA'S RELEASES.
TEVA HEREBY IRREVOCABLY RELEASES, ACQUITS AND
FOREVER DISCHARGES DEPOMED AND ITS PREDECESSORS AND SUCCESSORS IN INTEREST,
OFFICERS, DIRECTORS, OWNERS, EXECUTIVES, EMPLOYEES, AGENTS, ATTORNEYS,
REPRESENTATIVES, SUBSIDIARIES, PARTNERS, JOINT VENTURES, INSURERS, UNDERWRITERS,
TRUSTEES-IN-BANKRUPTCY, PAST OR FUTURE PARENTS, SUCCESSORS IN INTEREST OR
ASSIGNS OF THE LICENSED PATENTS, AND PERMITTED ASSIGNS OF ANY OF THE FOREGOING
FROM ANY AND ALL CLAIMS OR LIABILITIES OF ANY KIND AND NATURE, AT LAW, IN
EQUITY, OR OTHERWISE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED
AND UNDISCLOSED, THAT WERE OR COULD HAVE BEEN BROUGHT IN THE ACTION (INCLUDING
AS IF A CLAIM FOR PATENT INFRINGEMENT HAD BEEN BROUGHT AGAINST TEVA IN THE
ACTION).
NOTWITHSTANDING THE FOREGOING, TEVA RESERVES ITS RIGHTS TO RAISE ANY
AND ALL CLAIMS, DEFENSES AND COUNTERCLAIMS THAT WERE OR COULD HAVE BEEN RAISED
IN THE ACTION IN ANY FUTURE ACTION REGARDING THE LICENSED PATENTS AND ANY
PRODUCT OTHER THAN THE LICENSED PRODUCTS.
TEVA AGREES NOT TO RAISE ANY CLAIM,
DEFENSE OR COUNTERCLAIM AS AN AVOIDANCE OF ITS OBLIGATIONS TO MAKE THE PAYMENTS
SPECIFIED IN SECTIONS 4.1 AND 4.2 HEREIN.
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5.4
DEPOMED'S RELEASE.
DEPOMED HEREBY IRREVOCABLY RELEASES, ACQUITS
AND FOREVER DISCHARGES TEVA AND