ANY WRITING OR DO
ANY ACT WHATSOEVER CONFLICTING WITH THE ASSIGNMENT, AND SHALL, AT ANY TIME UPON
REQUEST WITHOUT FURTHER OR ADDITIONAL CONSIDERATION, EXECUTE AND PERFORM SUCH
ADDITIONAL ASSIGNMENTS, INSTRUMENTS AND OTHER WRITINGS, EACH OF WHICH SHALL BE
PREPARED BY, AND AT THE SOLE COST AND EXPENSE OF, INDEVUS AND DO SUCH ADDITIONAL
ACTS AS INDEVUS MAY DEEM NECESSARY OR DESIRABLE TO PERFECT INDEVUS' ENJOYMENT OF
THE GRANT OF THE ASSIGNMENT; PROVIDED SUCH ACTS DO NOT REQUIRE THE EXPENDITURE
OF ANY FUNDS BY PALIGENT OR ANY AFFILIATE THEREOF (IN ALL CASES OTHER THAN FEES
OR EXPENSES THAT WERE PAID OR INCURRED BY PALIGENT PRIOR TO OR AS OF THE
EFFECTIVE DATE OR LEGAL FEES AND EXPENSES OF PALIGENT RELATING TO THE EXECUTION
OF THIS AGREEMENT, ALL OF WHICH SHALL BE THE RESPONSIBILITY OF PALIGENT), IT
BEING UNDERSTOOD THAT THE FOREGOING COVENANT AND AGREEMENT SHALL BIND ASSIGNS
AND LEGAL REPRESENTATIVES OF PALIGENT AND INURE TO THE BENEFIT OF THE ASSIGNS
AND LEGAL REPRESENTATIVES OF INDEVUS.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, (I) PALIGENT SHALL EXECUTE AND DELIVER TO INDEVUS THE PATENT
ASSIGNMENT AND THE TRADEMARK ASSIGNMENT SIMULTANEOUSLY WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT; AND ANY FOREIGN COUNTERPARTS THEREOF PROMPTLY
THEREAFTER (II) THE ASSIGNMENTOF THE ASSIGNED ASSETS SHALL BE SUBJECT TO THE
PROVISIONS OF SECTION 2.4; AND (III) NEITHER PALIGENT NOR ANY OF ITS AFFILIATES
SHALL DIRECTLY OR INDIRECTLY MARKET, PROMOTE, SELL AND/OR DISTRIBUTE IN THE
TERRITORY, ANY PRODUCT UNDER ANY TRADEMARK THAT IS CONFUSINGLY SIMILAR TO THE
TRADEMARKS.
2.3.
AS PROMPTLY AS PRACTICABLE AFTER THE EFFECTIVE
DATE, PALIGENT SHALL TRANSFER TO INDEVUS ALL PALIGENT INTELLECTUAL PROPERTY NOT
PREVIOUSLY MADE AVAILABLE TO INDEVUS, IN ELECTRONIC FORMAT, WHERE AVAILABLE, AND
HARD COPIES (OR, UPON INDEVUS' REQUEST, ORIGINALS), ALL
4
OF WHICH SHALL BE SUBJECT TO THE ASSIGNMENT; IT BEING UNDERSTOOD THAT PALIGENT,
TO ITS KNOWLEDGE, HAS PREVIOUSLY DELIVERED TO INDEVUS OR ITS AGENTS OR EMPLOYEES
ALL FILES, DOCUMENTS AND OTHER MATERIALS RELATING TO THE PALIGENT INTELLECTUAL
PROPERTY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT, PURSUANT TO THE LICENSE
AGREEMENT, IND NUMBER 56,962 HAS PREVIOUSLY BEEN TRANSFERRED BY PALIGENT TO
INDEVUS AND IS HELD BY AND IN THE NAME OF INDEVUS.
2.4.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, NO THIRD PARTY AGREEMENT SHALL BE DEEMED ASSIGNED
TO INDEVUS PURSUANT TO THIS AGREEMENT IF THE ATTEMPTED ASSIGNMENT OF THE SAME TO
INDEVUS WITHOUT THE CONSENT OR APPROVAL OF THE OTHER PARTY THERETO OR OF ANY
GOVERNMENTAL ENTITY, INCLUDING BUT NOT LIMITED TO ANY REGULATORY AUTHORITY,
WOULD BE PROHIBITED BY LAW, WOULD BE INEFFECTIVE OR WOULD CONSTITUTE A MATERIAL
BREACH THEREOF. IF ANY SUCH CONSENT OR APPROVAL IS REQUIRED BUT NOT OBTAINED ON
OR PRIOR TO THE EFFECTIVE DATE, PALIGENT COVENANTS AND AGREES THAT:
(A)
THE ECONOMIC (BENEFICIAL) INTEREST IN OR TO
SUCH THIRD PARTY AGREEMENT SHALL IN ANY EVENT PASS TO INDEVUS, AND ANY AND ALL
LIABILITIES, OBLIGATIONS AND RESPONSIBILITIES PERTAINING TO SUCH THIRD PARTY
AGREEMENTS SHALL BE ASSUMED (AND PALIGENT SHALL BE INDEMNIFIED AND HELD HARMLESS
FROM THE