UNDER THIS AGREEMENT SHALL ALSO SURVIVE, BUT ONLY TO THE EXTENT REQUIRED FOR THE
FULL OBSERVATION AND PERFORMANCE OF THIS AGREEMENT.
(B)
EXCEPT AS INDICATED IN SECTION 8.5, EXPIRATION OR TERMINATION OF
THIS AGREEMENT SHALL BE WITHOUT PREJUDICE TO (A) ANY REMEDIES WHICH ANY PARTY
MAY THEN OR THEREAFTER HAVE HEREUNDER OR AT LAW; AND (B) A PARTY'S RIGHT TO
RECEIVE ANY PAYMENT ACCRUED UNDER THE AGREEMENT PRIOR TO THE TERMINATION DATE
BUT WHICH BECAME PAYABLE THEREAFTER; AND (C) EITHER PARTY'S RIGHT TO OBTAIN
PERFORMANCE OF ANY OBLIGATIONS PROVIDED FOR IN THIS AGREEMENT WHICH SURVIVE
TERMINATION BY THEIR TERMS OR BY A FAIR INTERPRETATION OF THIS AGREEMENT. EXCEPT
AS EXPRESSLY SET FORTH HEREIN, THE RIGHTS TO TERMINATE AS SET FORTH HEREIN SHALL
BE IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES AVAILABLE UNDER THIS AGREEMENT,
AT LAW, OR IN EQUITY OR OTHERWISE.
(C)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY:
(I)
IF WATSON TERMINATES THIS AGREEMENT PURSUANT TO SECTION 8.3
DURING THE INITIAL TERM, WATSON SHALL BE ENTITLED TO A TAIL PROMOTION FEE IN
ACCORDANCE WITH SECTION 7.4. FOR PURPOSES OF CALCULATION, IN SUCH AN EVENT, THE
TAIL PERIOD SHALL BE DETERMINED IN ACCORDANCE WITH SECTION 1.72 AND THE TAIL
GROSS MARGIN PERCENTAGE SHALL BE CALCULATED AS IF THE AGREEMENT HAD TERMINATED
ON OR AFTER SEPTEMBER 30, 2010 AND BEFORE SEPTEMBER 30, 2011; AND
(II)
IF DEPOMED TERMINATES THIS AGREEMENT PURSUANT TO SECTION 8.3,
WATSON SHALL NOT BE ENTITLED TO ANY TAIL PROMOTION FEE.
(D)
UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT PURSUANT TO
THIS ARTICLE VIII, EACH PARTY SHALL PROMPTLY TRANSFER AND RETURN TO THE OTHER
PARTY ALL PROPRIETARY INFORMATION OF THE OTHER PARTY (PROVIDED THAT EACH PARTY
MAY KEEP ONE COPY OF SUCH PROPRIETARY INFORMATION OF FOR ARCHIVAL PURPOSES
ONLY). UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, WATSON SHALL
PROVIDE TO DEPOMED, AT WATSON'S OUT-OF-POCKET COST THEREFOR, ALL SAMPLES AND
PROMOTIONAL MATERIALS IN WATSON'S POSSESSION (INCLUDING ELECTRONIC FILES OF ALL
PROMOTIONAL MATERIALS); PROVIDED, HOWEVER, THAT WATSON MAY DESTROY ANY PRINTED
COPIES OF PROMOTIONAL MATERIALS BEARING THE WATSON TRADEMARKS AND MAY REMOVE THE
WATSON 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 WATSON 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 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
3
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