REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT:
23
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
(A)
IN THE CONDUCT OF ITS BUSINESS AND
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, IT WILL OBSERVE AND COMPLY IN ALL
MATERIAL RESPECTS WITH ALL APPLICABLE COUNTRY, STATE AND LOCAL LAWS, RULES AND
REGULATIONS IN THE TERRITORY;
(B)
IT HAS THE LEGAL RIGHT AND POWER TO ENTER
INTO THIS AGREEMENT AND TO PERFORM FULLY ITS OBLIGATIONS HEREUNDER;
(C)
THIS AGREEMENT HAS BEEN DULY AUTHORIZED AND
APPROVED BY ALL NECESSARY AND PROPER ACTION OF SUCH PARTY;
(D)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED AND IS A LEGAL, VALID AND BINDING AGREEMENT OF SUCH PARTY, ENFORCEABLE
AGAINST SUCH PARTY IN ACCORDANCE WITH ITS TERMS;
(E)
IT HAS OBTAINED ALL NECESSARY THIRD PARTY
APPROVALS FOR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT WITH RESPECT TO HSR
FILINGS PROVIDED FOR IN SECTION 12.7;
(F)
IT HAS NOT MADE NOR WILL IT MAKE ANY
COMMITMENTS TO ANY THIRD PARTY OR AFFILIATE THAT ARE IN CONFLICT WITH OR IN
DEROGATION OF SUCH RIGHTS OF THIS AGREEMENT;
(G)
THE EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE PERFORMANCE OF SUCH PARTY'S OBLIGATIONS HEREUNDER WILL NOT VIOLATE,
CONFLICT WITH OR BREACH THE TERMS OF SUCH PARTY'S ORGANIZATIONAL OR GOVERNING
DOCUMENTS OR ANY COVENANT, AGREEMENT OR UNDERTAKES THAT SUCH PARTY HAS WITH ANY
THIRD PARTY AS OF THE EXECUTION DATE OR ANY ORDER, RULING DECREE, JUDGMENT,
ARBITRATION AWARD OR STIPULATION TO WHICH SUCH PARTY IS SUBJECT; AND
(H)
IT HAS ENFORCEABLE WRITTEN AGREEMENTS WITH
ALL OF ITS EMPLOYEES, CONSULTANTS, OR INDEPENDENT CONTRACTORS WHO RECEIVE
CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT OBLIGATING THEM TO KEEP SUCH
INFORMATION CONFIDENTIAL AND TO USE SUCH INFORMATION ONLY AS PERMITTED IN THIS
AGREEMENT, AND ASSIGNING TO SUCH PARTY OWNERSHIP OF ALL INTELLECTUAL PROPERTY
RIGHTS CREATED IN THE COURSE OF THEIR EMPLOYMENT.
6.4
DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, THE TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS PROVIDED BY THE
PARTIES ARE PROVIDED "AS IS" AND, EXCEPT AS EXPRESSLY PROVIDED UNDER SECTION 6.1
THROUGH 6.3 AND SECTIONS 11.2 AND 11.3, EACH PARTY EXPRESSLY DISCLAIMS ANY AND
ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF
DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF
THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ARISING FROM A COURSE OF
DEALING, USAGE OR TRADE PRACTICES, IN ALL CASES WITH RESPECT THERETO.
ARTICLE 7
INTELLECTUAL PROPERTY
7.1
EXISTING PROPRIETARY RIGHTS.
EACH PARTY
AGREES AND ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY GRANTED UNDER THIS AGREEMENT,
SUCH PARTY SHALL ACQUIRE NO RIGHTS OF ANY KIND
24
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
WHATSOEVER WITH RESPECT TO ANY INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY
EXISTING AS OF THE EFFECTIVE DATE.
7.2
FURTHER INFORMATION.
FROM TIME TO TIME UPON
WRITTEN REQUEST FROM SOLVAY, DEPOMED SHALL PROVIDE TO SOLVAY A COMPLETE LISTING
OF THE ISSUED PATENTS AND PENDING PATENT