SUCH LITIGATION IN EXCHANGE FOR THE RIGHT TO SHARE EQUALLY
WITH ESPRIT IN ANY RECOVERY OF DAMAGES RESULTING FROM SUCH LITIGATION. SUCH
ELECTION BY DEPOMED SHALL BE MADE NOT LATER THAN 60 DAYS FROM THE DATE SUCH
LITIGATION IS COMMENCED.
IN ANY LITIGATION BROUGHT BY ESPRIT, ESPRIT SHALL HAVE
THE RIGHT TO USE AND SUE IN DEPOMED'S NAME, AND DEPOMED SHALL HAVE THE RIGHT, AT
ITS OWN EXPENSE, TO BE REPRESENTED BY COUNSEL.
ANY RECOVERY OR DAMAGES RECEIVED
BY ESPRIT SHALL BE RETAINED BY ESPRIT.
11.
REPRESENTATIONS AND WARRANTIES.
11.1
REPRESENTATIONS AND WARRANTIES OF DEPOMED.
DEPOMED EXPRESSLY WARRANTS AND REPRESENTS TO ESPRIT THAT:
13
(A)
TO ITS KNOWLEDGE, IT HAS FULL RIGHT, TITLE,
AND INTEREST IN AND TO OR THE RIGHT TO PRACTICE ALL PRESENTLY EXISTING PATENT
RIGHTS AND KNOW-HOW RELATING TO THE LICENSED PRODUCT OR THE GR SYSTEM; THAT
THERE ARE NO OUTSTANDING WRITTEN OR ORAL AGREEMENTS INCONSISTENT WITH THIS
AGREEMENT; THAT IT HAS ALL NECESSARY CORPORATE POWER AND AUTHORITY TO ENTER INTO
THIS AGREEMENT AND GRANT THE LICENSE PROVIDED HEREIN WITHOUT BURDENS,
ENCUMBRANCES, RESTRAINTS, OR LIMITATIONS OF ANY KIND WHICH COULD ADVERSELY
AFFECT THE RIGHTS OF ESPRIT UNDER THIS AGREEMENT; THAT, AS OF THE EFFECTIVE
DATE, IT HAS ALL NECESSARY CORPORATE POWER AND AUTHORITY TO GRANT THE RIGHT OF
FIRST REFUSAL GRANTED TO ESPRIT UNDER ARTICLE 13; AND THAT, AS OF THE EFFECTIVE
DATE, THERE ARE NO WRITTEN OR ORAL AGREEMENTS INCONSISTENT WITH THE RIGHT OF
FIRST REFUSAL GRANTED TO ESPRIT UNDER ARTICLE 13.
(B)
IT IS PRESENTLY AWARE OF NO PATENTS OR
PATENT APPLICATIONS OWNED BY A THIRD PARTY AND NOT LICENSED TO DEPOMED WHICH
WOULD BE INFRINGED BY THE PRACTICE OF THE PRESENTLY EXISTING PATENT RIGHTS OR
KNOW-HOW RELATED TO THE LICENSED PRODUCT OR THE GR SYSTEM NOR HAS DEPOMED
RECEIVED, OR IS AWARE OF, ANY CLAIMS BY THIRD PARTIES, EITHER ASSERTED OR
UNASSERTED, WITH RESPECT TO SUCH MATTERS.
(C)
AS OF THE EFFECTIVE DATE, DEPOMED IS NOT
CONDUCTING ANY RESEARCH OR DEVELOPMENT WITH RESPECT TO ANY PRODUCT OR PRODUCT
CANDIDATE CONTAINING THE ACTIVE INGREDIENT, OTHER THAN THE LICENSED PRODUCT.
11.2
MUTUAL REPRESENTATIONS AND WARRANTIES.
EACH
PARTY HEREBY REPRESENTS AND WARRANTS TO THE OTHER PARTY AS FOLLOWS:
(A)
IT IS A CORPORATION DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION.
IT HAS ALL REQUISITE POWER AND AUTHORITY TO CARRY ON ITS
BUSINESS AND TO OWN AND OPERATE ITS PROPERTIES AND ASSETS.
THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ITS
BOARD OF DIRECTORS.
SUCH PARTY HAS OBTAINED ALL AUTHORIZATIONS, CONSENTS AND
APPROVALS, GOVERNMENTAL OR OTHERWISE, NECESSARY FOR THE EXECUTION AND DELIVERY
OF THIS AGREEMENT, AND TO OTHERWISE PERFORM SUCH PARTY'S OBLIGATIONS UNDER THIS
AGREEMENT.
(B)
THERE IS NO PENDING OR, TO ITS KNOWLEDGE,
THREATENED LITIGATION INVOLVING IT WHICH WOULD HAVE ANY MATERIAL ADVERSE EFFECT
ON THIS AGREEMENT OR ON ITS ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER.
(C)
THERE IS NO INDENTURE, CONTRACT, OR
AGREEMENT TO WHICH IT IS A PARTY OR