OR ANY THIRD PARTIES, THEN THE SAME SHALL BE SUBJECT TO
THE PROVISIONS OF ARTICLE X BELOW.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BESA
BESA represents and warrants to XTENT as follows:
6.1
ORGANIZATION OF BESA.
BESA IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF SWITZERLAND.
BESA HAS FULL POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND
TO CONDUCT ITS BUSINESS IN THE MANNER AND IN THE PLACES WHERE SUCH PROPERTIES
ARE OWNED OR LEASED OR ITS BUSINESS IS CONDUCTED.
21
6.2
AUTHORIZATION OF TRANSACTION.
BESA HAS FULL CORPORATE
POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS RESTATED AGREEMENT AND
TO CARRY OUT THE TRANSACTIONS CONTEMPLATED HEREIN.
ALL NECESSARY ACTIONS,
CORPORATE OR OTHERWISE, HAVE BEEN TAKEN BY BESA TO AUTHORIZE AND APPROVE THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS RESTATED AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN, AND THIS RESTATED AGREEMENT IS THE LEGAL,
VALID AND BINDING OBLIGATION OF BESA, ENFORCEABLE AGAINST BESA IN ACCORDANCE
WITH ITS TERMS, EXCEPT TO THE EXTENT ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, REORGANIZATION, INSOLVENCY, MORATORIUM OR OTHER SIMILAR LAWS FROM
TIME TO TIME IN EFFECT AFFECTING CREDITORS' RIGHTS GENERALLY OR BY PRINCIPLES
GOVERNING THE AVAILABILITY OF EQUITABLE REMEDIES (COLLECTIVELY, "ENFORCEMENT
LIMITATIONS").
6.3
NO CONFLICT WITH OBLIGATIONS AND LAWS.
NEITHER THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS RESTATED AGREEMENT, NOR THE
PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED BY THIS RESTATED AGREEMENT, WILL:
(A) CONSTITUTE A BREACH OR VIOLATION OF ANY PROVISION OF BESA'S CHARTER
DOCUMENTS OR BY-LAWS; (B) TO THE KNOWLEDGE OF BESA, REQUIRE ANY AUTHORIZATION,
APPROVAL, CONSENT OR WAIVER OF ANY GOVERNMENTAL AUTHORITY OR THIRD PARTY;
(C) CONSTITUTE (WITH OR WITHOUT THE PASSAGE OF TIME OR GIVING OF NOTICE) A
DEFAULT UNDER OR BREACH OF ANY CONTRACT, AGREEMENT, INSTRUMENT, COMMITMENT OR
OBLIGATION TO WHICH BESA IS A PARTY OR BY WHICH BESA IS BOUND OR GIVE ANY PERSON
THE RIGHT TO DECLARE A BREACH, ACCELERATE, TERMINATE, MODIFY OR CANCEL ANY RIGHT
OR OBLIGATION THEREUNDER, WHICH IN ANY SUCH CASE WOULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT; OR (D) TO THE KNOWLEDGE OF BESA, RESULT IN A
VIOLATION OF ANY LAW, RULE, REGULATION, ADMINISTRATIVE ORDER OR JUDICIAL ORDER,
DECREE OR JUDGMENT, WHICH IN ANY SUCH CASE WOULD REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT.
6.4
LICENSED PATENTS.
EXHIBIT 1.17 SETS FORTH A COMPLETE AND
CORRECT LIST OF ALL ISSUED PATENTS, PATENT APPLICATIONS AND INVENTION
DISCLOSURES CURRENTLY OWNED BY BESA OR LICENSED BY BESA FROM ONE OR MORE OF ITS
AFFILIATES RELATED TO BIOLIMUS A9, BESA'S POLYMER COATING, AND BESA'S
DRUG/POLYMER COMPOSITE FORMULATION. [****]
6.5
FINDER'S FEES.
BESA HAS NOT INCURRED NOR BECOME LIABLE
FOR ANY BROKER'S COMMISSION OR FINDER'S FEES RELATING TO OR IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS RESTATED AGREEMENT.
6.6
Litigation.
BESA has received no notice of any, and BESA
has no knowledge of any, pending or threatened claim, action, suit, arbitration
or other proceeding pending or, to the knowledge of BESA, threatened against
BESA