ANY PRINTED COPIES OF PROMOTIONAL
MATERIALS BEARING THE KING TRADEMARKS AND MAY REMOVE THE KING TRADEMARKS FROM
ELECTRONIC FILES OF PROMOTIONAL MATERIALS.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
SECTION 9.1
REPRESENTATIONS AND WARRANTIES OF DEPOMED.
DEPOMED
HEREBY REPRESENTS AND WARRANTS TO KING AS OF THE DATE HEREOF AS FOLLOWS:
(A)
ORGANIZATION.
DEPOMED (I) IS A CORPORATION DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF CALIFORNIA,
AND (II) HAS ALL NECESSARY CORPORATE
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POWER AND CORPORATE AUTHORITY TO OWN ITS PROPERTIES AND TO CONDUCT ITS BUSINESS,
AS CURRENTLY CONDUCTED.
(B)
AUTHORIZATION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY ARE WITHIN THE
CORPORATE POWER OF DEPOMED, HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
PROCEEDINGS OF DEPOMED, AND THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED
BY DEPOMED.
(C)
NO CONFLICT.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT:
(I) CONFLICT WITH
OR RESULT IN A BREACH OF ANY PROVISION OF DEPOMED'S ORGANIZATIONAL DOCUMENTS;
(II) RESULT IN A MATERIAL BREACH OF ANY MATERIAL AGREEMENT TO WHICH DEPOMED IS
PARTY; (III) RESULT IN A VIOLATION OF ANY ORDER TO WHICH DEPOMED IS SUBJECT;
(IV) REQUIRE DEPOMED TO OBTAIN ANY MATERIAL APPROVAL OR CONSENT FROM ANY
GOVERNMENTAL AUTHORITY OR THIRD PARTY OTHER THAN THOSE CONSENTS AND APPROVALS
WHICH HAVE BEEN OBTAINED PRIOR TO THE DATE HEREOF; OR (V) VIOLATE ANY LEGAL
REQUIREMENT APPLICABLE TO DEPOMED IN ANY MATERIAL RESPECT.
(D)
ENFORCEABILITY.
THIS AGREEMENT CONSTITUTES THE VALID AND BINDING
OBLIGATION OF DEPOMED, ENFORCEABLE AGAINST DEPOMED IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO BANKRUPTCY, REORGANIZATION, INSOLVENCY AND OTHER SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS IN GENERAL AND TO GENERAL
PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY
OR AN ACTION AT LAW).
(E)
BROKER.
DEPOMED HAS NOT EMPLOYED ANY BROKER, FINDER, OR AGENT
WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(F)
DEPOMED INTELLECTUAL PROPERTY.
TO THE KNOWLEDGE OF DEPOMED, THE
PROMOTION AND SALE OF PRODUCT IN THE TERRITORY IN ACCORDANCE WITH THIS AGREEMENT
WILL NOT INFRINGE ANY PATENTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS
OF ANY THIRD PARTY; PROVIDED, THAT DEPOMED MAKES NO REPRESENTATION AS TO THE
KING TRADEMARKS.
DEPOMED HAS THE RIGHT, POWER AND AUTHORITY TO GRANT THE
LICENSES GRANTED BY IT HEREUNDER, INCLUDING THE RIGHT, POWER AND AUTHORITY TO
LICENSE TO KING, PURSUANT TO SECTION 6.6, ALL TECHNOLOGY NECESSARY FOR THE
MANUFACTURE OF THE PRODUCT.
(G)
LITIGATION.
THERE IS NO LITIGATION, ARBITRATION PROCEEDING,
GOVERNMENTAL INVESTIGATION, ACTION OR CLAIMS OF ANY KIND, PENDING OR, TO THE
KNOWLEDGE OF DEPOMED, THREATENED, BY OR AGAINST DEPOMED OR ANY OF ITS AFFILIATES
RELATING TO THE PRODUCT OR WHICH WOULD REASONABLY BE EXPECTED TO MATERIALLY
AFFECT DEPOMED'S ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER.
(H)
DOCUMENTATION.
DEPOMED HAS MADE AVAILABLE TO KING COPIES OF
SUBSTANTIALLY ALL CLINICAL DATA AND REPORTS, MEDICAL INFORMATION, COMPETITIVE
INFORMATION, MARKETING RESEARCH AND OTHER DOCUMENTATION RELATED TO THE PRODUCT
IN DEPOMED'S POSSESSION THAT