WHEN APPLICABLE, SOLVAY
SHALL PROMPTLY NOTIFY DEPOMED OF SOLVAY'S INTENT TO LIST ANY ISSUED PATENTS
INCLUDED IN THE DEPOMED PATENTS IN THE FDA'S "ORANGE BOOK" (I.E., THE FDA'S LIST
OF APPROVED DRUG PRODUCT WITH THERAPEUTIC EQUIVALENCE EVALUATIONS) FOR THE
PRODUCT IN THE FIELD AND IN THE TERRITORY, IN ACCORDANCE WITH ALL APPLICABLE
30
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
LAWS.
THE PARTIES SHALL MUTUALLY AGREE UPON THE DEPOMED PATENTS TO BE LISTED IN
THE ORANGE BOOK FOR PRODUCT IN THE FIELD AND IN THE TERRITORY, PROVIDED,
HOWEVER, THAT WHILE NDA HOLDER, SOLVAY SHALL HAVE THE FINAL DECISION WITH REGARD
TO ANY PATENT RELATED TO THE PRODUCT IN THE FIELD IN THE TERRITORY.
ARTICLE 8
TERM AND TERMINATION OF AGREEMENT
8.1
TERM.
THIS AGREEMENT SHALL BECOME EFFECTIVE
ON THE EFFECTIVE DATE AND UNLESS OTHERWISE TERMINATED PURSUANT TO ITS TERMS,
SHALL CONTINUE UNTIL THE LONGER OF (A) EXPIRATION OF THE LAST VALID CLAIM; OR
(B) THE FIFTEENTH (15TH) ANNIVERSARY OF THE EFFECTIVE DATE.
AS USED HEREIN,
"VALID CLAIM" SHALL MEAN A CLAIM OF ANY ISSUED AND UNEXPIRED PATENT OR PATENT
APPLICATION WITHIN THE DEPOMED PATENTS THAT HAS BEEN PENDING APPROVAL FOR NO
MORE THAN TEN (10) YEARS AFTER THE INITIAL DATE OF FILING OF SUCH CLAIM AND THAT
HAS NOT BEEN HELD INVALID OR UNENFORCEABLE BY A FINAL DECISION OF A COURT OR
GOVERNMENTAL AGENCY OF COMPETENT JURISDICTION, WHICH DECISION CAN NO LONGER BE
APPEALED OR WAS NOT APPEALED WITHIN THE TIME ALLOWED.
8.2
TERMINATION BY DEPOMED.
DEPOMED MAY TERMINATE
THIS AGREEMENT UPON SIXTY (60) DAYS WRITTEN NOTICE TO SOLVAY IF SOLVAY IS IN
MATERIAL BREACH OF THIS AGREEMENT AND SUCH BREACH IS NOT CURED WITHIN SUCH SIXTY
(60) DAY PERIOD.
8.3
TERMINATION BY SOLVAY.
SOLVAY MAY TERMINATE
THIS AGREEMENT (A) UPON SIXTY (60) DAYS WRITTEN NOTICE TO DEPOMED IF DEPOMED IS
IN MATERIAL BREACH OF THIS AGREEMENT, AND SUCH BREACH IS NOT CURED WITHIN SUCH
SIXTY (60) DAY PERIOD, OR (B) UPON THIRTY (30) DAYS WRITTEN NOTICE FOLLOWING THE
OCCURRENCE OF A TERMINATION EVENT.
8.4
TERMINATION FOR BANKRUPTCY.
TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, THIS AGREEMENT MAY BE TERMINATED BY EITHER PARTY
IMMEDIATELY UPON WRITTEN NOTICE TO THE OTHER PARTY, IN THE EVENT THAT THE OTHER
PARTY FILES OR HAS FILED AGAINST IT A PETITION UNDER THE UNITED STATES
BANKRUPTCY CODE (THE "BANKRUPTCY CODE"), MAKES AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS, HAS A RECEIVER APPOINTED FOR IT OR A SUBSTANTIAL PART OF ITS ASSETS,
OR OTHERWISE TAKES ADVANTAGE OF ANY STATUTE OR LAW DESIGNED FOR RELIEF OF
DEBTORS.
NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT ALL RIGHTS AND
LICENSES GRANTED TO SOLVAY HEREUNDER ARE, FOR PURPOSES OF SECTION 365(N) OF THE
BANKRUPTCY CODE, LICENSES OF INTELLECTUAL PROPERTY WITHIN THE SCOPE OF
SECTION 101 OF THE BANKRUPTCY CODE, AND DEPOMED ACKNOWLEDGES THAT SOLVAY, AS A
LICENSEE OF SUCH RIGHTS AND LICENSES HEREUNDER, WILL RETAIN AND MAY FULLY
EXERCISE ALL OF ITS RIGHTS AND ELECTIONS UNDER THE