OF TERMINATION, PAY ARQULE THE
FTE FUNDING COMMITMENT AND (II) THE RESEARCH PROGRAM SHALL TERMINATE WITHOUT ANY
FURTHER OBLIGATION OF ARQULE.
10.4
SURVIVING PROVISIONS.
TERMINATION OR EXPIRATION
OF THIS AGREEMENT FOR ANY REASON SHALL BE WITHOUT PREJUDICE TO:
(A)
THE RIGHTS AND OBLIGATIONS OF THE PARTIES
PROVIDED IN ARTICLES 1, 6, 8, 9 (WITH RESPECT TO JOINT PATENT RIGHTS AND DS
PATENT RIGHTS LICENSED TO ARQULE PURSUANT TO SECTION 10.3.1(C)(II)), 11, 12 AND
13 (EXCEPT SECTION 13.1.2) AND SECTIONS 7.6, 10.3 AND 10.4.
(B)
UNLESS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT, ARQULE'S RIGHTS TO RECEIVE ROYALTIES AND MILESTONE PAYMENTS FOR THE
DURATION OF ALL APPLICABLE ROYALTY TERMS, IF ANY; AND
(C)
ANY OTHER RIGHTS OR REMEDIES PROVIDED AT
LAW OR EQUITY WHICH EITHER PARTY MAY OTHERWISE HAVE.
72
11.
REPRESENTATIONS AND WARRANTIES
11.1
MUTUAL REPRESENTATIONS AND WARRANTIES.
ARQULE
AND DS EACH REPRESENTS AND WARRANTS TO THE OTHER, AS OF THE EFFECTIVE DATE, AS
FOLLOWS:
11.1.1
ORGANIZATION.
IT IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION, AND HAS ALL REQUISITE POWER AND AUTHORITY,
CORPORATE OR OTHERWISE, TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT.
11.1.2
AUTHORIZATION.
THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE PERFORMANCE BY IT OF THE TRANSACTIONS CONTEMPLATED HEREBY
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND WILL NOT VIOLATE
(A) SUCH PARTY'S CERTIFICATE OF INCORPORATION OR BYLAWS, (B) ANY AGREEMENT,
INSTRUMENT OR CONTRACTUAL OBLIGATION TO WHICH SUCH PARTY IS BOUND IN ANY
MATERIAL RESPECT, (C) ANY REQUIREMENT OF ANY APPLICABLE LAWS, OR (D) ANY ORDER,
WRIT, JUDGMENT, INJUNCTION, DECREE, DETERMINATION OR AWARD OF ANY COURT OR
GOVERNMENTAL AGENCY PRESENTLY IN EFFECT APPLICABLE TO SUCH PARTY.
11.1.3
BINDING AGREEMENT.
THIS AGREEMENT IS A LEGAL,
VALID AND BINDING OBLIGATION OF SUCH PARTY ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS TERMS AND CONDITIONS.
11.1.4
NO INCONSISTENT OBLIGATION.
IT IS NOT UNDER
ANY OBLIGATION, CONTRACTUAL OR OTHERWISE, TO ANY PERSON THAT CONFLICTS WITH OR
IS INCONSISTENT IN ANY RESPECT WITH THE TERMS OF THIS AGREEMENT OR THAT WOULD
IMPEDE THE DILIGENT AND COMPLETE FULFILLMENT OF ITS OBLIGATIONS HEREUNDER.
11.2
ARQULE'S REPRESENTATIONS AND WARRANTIES.
ARQULE
REPRESENTS AND WARRANTS TO DS AS FOLLOWS:
11.2.1
ALL LICENSED TECHNOLOGY EXISTING AS OF THE
EFFECTIVE DATE IS CONTROLLED BY ARQULE.
11.2.2
TO THE ACTUAL KNOWLEDGE OF THE CHIEF EXECUTIVE
OFFICER, THE PRESIDENT, ANY VICE PRESIDENT OR ARQULE'S INTERNAL PATENT COUNSEL,
ARQULE, AS OF THE EFFECTIVE DATE, EXCEPT AS PREVIOUSLY DISCLOSED TO DS, NO THIRD
PARTY HAS INITIATED, OR THREATENED IN WRITING TO INITIATE, ANY LITIGATION
AGAINST ARQULE OR ITS AFFILIATES, INCLUDING, WITHOUT LIMITATION, BY
73
INITIATING ANY DECLARATORY JUDGMENT LAWSUIT, OR BY SENDING A CEASE-AND-DESIST
LETTER, ALLEGING THAT THE LICENSED PATENT RIGHTS ARE INVALID OR UNENFORCEABLE OR
THAT THE USE OF THE LICENSED PATENT RIGHTS OR LICENSED TECHNOLOGY AS
CONTEMPLATED BY THIS AGREEMENT INFRINGES THE PATENT RIGHTS OF SUCH THIRD PARTY.
12.
INDEMNIFICATION
12.1
INDEMNIFICATION OF DS BY ARQULE.
ARQULE SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS DS, ITS AFFILIATES, THEIR