UNDERSTANDING, ORAL OR WRITTEN, TO WHICH IT IS A PARTY
OR BY
32
WHICH IT MAY BE BOUND, NOR VIOLATE ANY LAW OR REGULATION OF ANY COURT,
GOVERNMENTAL BODY OR ADMINISTRATIVE OR OTHER AGENCY HAVING AUTHORITY OVER IT,
SUBJECT TO COMPLIANCE WITH AND FILINGS UNDER THE HSR ACT.
SECTION 11.04
ABILITY TO CARRY OUT OBLIGATIONS.
EACH
PARTY HEREBY REPRESENTS AND WARRANTS THAT THERE ARE NO ACTIONS, SUITS OR
PROCEEDINGS PENDING OR, TO ITS KNOWLEDGE, THREATENED AGAINST IT OR ITS
AFFILIATES THAT AFFECT ITS ABILITY TO CARRY OUT ITS OBLIGATIONS UNDER THIS
AGREEMENT.
SECTION 11.05
COMPLIANCE WITH LAWS.
EACH PARTY HEREBY
REPRESENTS AND WARRANTS THAT ITS ACTIVITIES IN CONNECTION WITH THIS AGREEMENT
WILL BE CARRIED OUT IN COMPLIANCE WITH ANY APPLICABLE FEDERAL, STATE OR LOCAL
LAWS, REGULATIONS OR GUIDELINES COVERING THE RELEVANT CONDUCT.
SECTION 11.06
SONUS REPRESENTATIONS.
SONUS REPRESENTS
AND WARRANTS THAT AS OF THE EXECUTION DATE:
(A)
IT IS THE SOLE OWNER OF ALL RIGHT, TITLE
AND INTEREST IN AND TO THE SONUS TECHNOLOGY AND THE SONUS MARKS, AND THAT NO
SUCH RIGHTS ARE LICENSED FROM A THIRD PARTY;
(B)
EXCEPT AS IT MAY HAVE PREVIOUSLY DISCLOSED
TO SCHERING IN WRITING, IT HAS NOT RECEIVED ANY NOTICES OF INFRINGEMENT OR ANY
WRITTEN COMMUNICATIONS FROM A THIRD PARTY RELATING TO A POSSIBLE INFRINGEMENT
WITH RESPECT TO THE PRODUCT, AND THAT IT IS NOT AWARE THAT THE MANUFACTURE, USE
OR SALE OF THE PRODUCT INFRINGES ANY THIRD PARTY PATENT RIGHTS;
(C)
IT HAS NOT GRANTED ANY LICENSE UNDER THE
SONUS TECHNOLOGY, NOR HAS IT GRANTED ANY LICENSE TO USE THE SONUS MARKS, FOR THE
PRODUCT IN THE TERRITORY FOR USE IN THE FIELD TO ANY THIRD PARTY AND IS UNDER NO
OBLIGATION TO GRANT ANY SUCH LICENSE;
(D)
IT DOES NOT OWN OR LICENSE ANY PATENTS OR
PATENT APPLICATIONS NOT INCLUDED IN THE SONUS PATENTS WHICH WOULD BE INFRINGED
BY THE MANUFACTURE, USE OR SALE OF ANY PRODUCT OR THE PRACTICE OF ANY METHODS OR
PROCESSES COVERED BY THE SONUS TECHNOLOGY BY SCHERING OR ITS AFFILIATES;
(E)
TO ITS KNOWLEDGE, ALL PATENTS INCLUDED IN
THE SONUS PATENTS ARE VALID AND IN FULL FORCE AND EFFECT AND IT IS UNAWARE OF
ANY PUBLICATIONS OR ACTIVITIES OR ANY PRIOR ART OR ANY FACT, INCLUDING WITHOUT
LIMITATION, PATENTS, ARTICLES, AND PUBLIC USES OR SALES, BY IT OR OTHERS, WHICH
WOULD OR MIGHT INVALIDATE ANY CLAIM(S) OF ANY PATENT OR PATENT APPLICATION
INCLUDED IN THE SONUS PATENTS;
(F)
IT HAS NOT RECEIVED NOTICE THAT ANY
PATENT APPLICATION WITHIN THE SONUS PATENT RIGHTS IS THE SUBJECT OF ANY PENDING
INTERFERENCE, OPPOSITION, CANCELLATION OR OTHER PROTEST PROCEEDING;
(G)
SONUS HAS PROVIDED SCHERING WITH ALL
MATERIAL INFORMATION AND DATA RELATING TO THE PRODUCT AND ON-GOING CLINICAL
TRIALS OF THE PRODUCT IN SONUS' POSSESSION OR CONTROL (EXCLUDING WRITTEN
ATTORNEY-CLIENT PRIVILEGED DOCUMENTS), INCLUDING, WITHOUT LIMITATION, ALL
INFORMATION CONCERNING EFFICACY, SIDE EFFECTS, INJURY, TOXICITY OR SENSITIVITY,
REACTION AND INCIDENTS OR SEVERITY THEREOF, ASSOCIATED WITH ANY CLINICAL USE,
STUDIES, INVESTIGATIONS OR TESTS WITH THE PRODUCT (ANIMAL OR HUMAN), WHETHER OR
NOT DETERMINED