THE RESILIENT IDE; PROVIDED,
HOWEVER, THAT SELLERS SHALL (I) ENSURE THAT SUCH TERMINATION OR DISCONTINUATION
IS CONDUCTED IN CONFORMANCE WITH THE REQUIREMENTS OF THE RESILIENT IDE AND
(II) PROVIDE WRITTEN NOTICE TO BUYERS PRIOR TO EFFECTING SUCH TERMINATION OR
DISCONTINUATION.
IF BUYERS ELECT TO ASSUME CONTROL OF THE RESILIENT IDE, IN
ACCORDANCE WITH THIS SECTION 4.9(E), SELLERS SHALL (I) ASSIGN, TRANSFER, CONVEY
AND DELIVER THE RESILIENT IDE TO BUYERS; (II) AT BUYERS' EXPENSE TAKE ALL
ACTIONS NECESSARY TO EFFECT THE TRANSFER TO BUYERS OF THE RESILIENT IDE,
INCLUDING THE SUBMISSION OF NOTICES AND FILINGS TO THE FDA AND ANY OTHER
APPLICABLE GOVERNMENTAL ENTITY REGARDING SUCH TRANSFER; (III) TAKE ALL ACTIONS
NECESSARY TO DELIVER THE RESILIENT RECORDS; (IV) AT BUYER'S EXPENSE, ASSIST
BUYERS TO EFFECT THE TRANSFER TO BUYERS OF THE EXCLUDED CLINICAL CONTRACTS SET
FORTH IN SECTION 1.1(B)(XII) OF THE DISCLOSURE SCHEDULE; AND (V) AT BUYER'S
EXPENSE, MAKE COMMERCIALLY REASONABLE EFFORTS TO CONTINUE TO ASSIST BUYERS TO
ADDRESS ANY FDA AND/OR IRB CONCERNS WITH RESPECT TO THE RESILIENT CLINICAL
STUDY.
5.
COVENANTS OF BUYERS; MUTUAL COVENANTS
5.1
NOTICE OF CERTAIN EVENTS.
From time to time prior to the Closing, Sellers and Buyers shall promptly advise
each other in writing of:
(i) any Material Adverse Effect; (ii) the occurrence
of any event of which such party obtains knowledge which causes any of the
representations and warranties made by such party or the information included in
any Schedule relating to the representations of such party to be incomplete or
inaccurate in any material respect; (iii) the receipt of notice that any third
party to any Acquired Contracts is not likely to provide Consent to the
assignment of such Acquired Contract to Buyers pursuant to this Agreement;
(iv) any notice or communication from or correspondence with the FDA or any
other Governmental Entity in any way related to the Business; or (v) any notice
or communication asserting or threatening any Claim against such party or its
affiliates with respect to any Intellectual Property (including its ownership,
use validity or enforceability) included in the Assigned IP Assets or to be
licensed to Buyers pursuant to the Cross License Agreement.
39
5.2
REGULATORY MATTERS.
(A)
AS PROMPTLY AS POSSIBLE FOLLOWING THE
CLOSING, BUT NOT LATER THAN THIRTY (30) DAYS FOLLOWING THE CLOSING, SELLERS
SHALL, AND SHALL CAUSE THEIR AFFILIATES TO TAKE ALL ACTIONS NECESSARY TO EFFECT
THE TRANSFER OF THE RELEVANT BUSINESS PERMITS AND PRODUCT RECORDS TO BUYERS,
INCLUDING THE SUBMISSION OF NOTICES AND FILINGS TO ANY APPLICABLE GOVERNMENTAL
ENTITY REGARDING SUCH TRANSFER.
(B)
DURING THE PERIOD BETWEEN THE DATE OF THIS
AGREEMENT AND THE CLOSING DATE, SELLERS SHALL, AND SHALL CAUSE THEIR AFFILIATES
TO:
(I) TAKE ALL ACTIONS NECESSARY AND OBTAIN ANY DOCUMENTATION REQUIRED TO
MAINTAIN THE RELEVANT BUSINESS PERMITS OR TO OBTAIN ANY FURTHER AUTHORIZATIONS
UNDER ANY LAWS; AND (II) TAKE ALL ACTIONS NECESSARY TO OTHERWISE COMPLY WITH ANY
LAWS WITH RESPECT TO ALL BUSINESS PERMITS AND THE PRODUCTS.
5.3
[INTENTIONALLY OMITTED]
5.4
USE OF NAMES.
(A)
SUBJECT TO SECTION 5.4(B), BUYERS