Annex F. Spare Parts List
Annex F. Spare Parts and Tools List
Annex F. Technical Specification;
Annex F. 69 *** CONFIDENTIAL TREATMENT REQUESTED. 5 THIS EXCLUSIVE LICENSE, SALE AND DISTRIBUTION AGREEMENT (this "Agreement"), made as of October 14, 1997, by and between Anthra Pharmaceuticals, Inc., a corporation organized under the laws of the State of Delaware, U.S.A, having its principal business office at 19 Cxxxxx Xxxx, Princeton, N.J. 08540, U.S.A. ("Anthra"), and Nycomed Pharma AS, a corporation organized under the laws of Norway, having its principal business office at Sandakerveien 78, P.O. Xxx 0000 - Xxxxxxx, X-0000, Xxxx, Xxxxxx ("Xycomed"),
Annex F attached hereto is a frame order of the estimated services, products and materials to be provided by Buyer to Seller until December 31st 2007. Annex G, attached hereto is a forecast of the estimated services, products and materials to be provided by Buyer to Seller for the year 2008. A frame order for the year 2008 shall be agreed upon by the parties by September 30th 2008.
Annex F. Except with respect to the covenants set forth in Sections 5.1(a)(i), 5.1(a)(ii), 5.1(a)(v), 5.1(a)(xiv), 5.1(a)(xxiii) (to the extent it relates to another Specified Covenant), and 5.7 of the Agreement (collectively, the “Specified Covenants”), the Company shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date; (ii) except with respect to the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.17, 3.19 and 3.20 of the Agreement (the “Specified Representations”), the representations and warranties of the Company contained in this Agreement shall be true and correct, except where the failure to be true and correct has not had and would not reasonably be expected to have a Catastrophic Material Adverse Effect; (iii) with respect to the Specified Covenants, the Company shall have performed the Specified Covenants required to be performed on or prior to the Closing Date, except where the failure to perform such covenants and agreements has not had and would not reasonably be expected to have a Catastrophic Material Adverse Effect; (iv) with respect to those portions of the Specified Representations that are qualified by Catastrophic Material Adverse Effect or any other materiality qualification, such Specified Representations and warranties shall be true and correct; and (v) with respect to those portions of the Specified Representations that are not qualified by Catastrophic Material Adverse Effect or any other materiality qualification, such representations and warranties shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date; provided, however, that with respect to representations and warranties described in clauses (ii), (iv) and (v) that are made as of a specified date, such representations and warranties need only be true and correct as of the specified date, subject to the applicable materiality standard ascribed thereto. Parent shall have received a certificate of the Company, executed on its behalf by its Chief Executive Officer or Chief Financial Officer, dated the Closing Date, certifying to such effect.
Annex F. 2.1 to the Disclosure Letter contains an accurate and complete list of (i) (a) all registered Intellectual Property Rights owned by, filed in the name of, or licensed exclusively to any Group Company (including applications to register the same and specifications of the countries where (applications to register) Intellectual Property Rights have been filed) and (b) all domain names registered in the name of or transferred to any Group Company (indicating for each item the applicable registrar and the registration renewal date) and any social media accounts, addresses, and handles that used or registered by or on behalf of a Group Company (Company Domain Names) ((a) and (b) together, Company Registered IP), indicating for each item the applicable registration and application number, application and registration date, and jurisdiction in which such item is filed; and (ii) any proceedings or actions pending before any court or tribunal (including the European Union Intellectual Property Office, the U.S. Patent and Trademark Office, or equivalent authorities anywhere in the world). Each item of Company Registered IP is subsisting and, so far as the Non Investor Indemnifying Parties are aware, valid and enforceable. No Company Registered IP has been adjudged or deemed to be invalid or unenforceable. None of the Non Investor Indemnifying Parties is aware of any information, materials, facts, or circumstances, including any information or fact that would constitute prior art, that would render any of the Company Registered IP invalid or unenforceable. All necessary registration, maintenance, and renewal fees currently due in connection with such Company Registered IP have been timely and duly made and all necessary documents, recordations and certificates in connection with such Company Registered IP have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of prosecuting, perfecting and maintaining such Company Registered IP, or would materially affect any pending application for any Company Registered IP and no Group Company has knowingly misrepresented, or knowingly failed to disclose, any facts or circumstances in any application for any Company Registered IP that would constitute fraud or a misrepresentation with respect to such application or by which any Company Registered IP may be revoked, invalidated, or rendered unenforceable, or the prospects ...
Annex F. 2.2 to the Disclosure Letter lists all Contracts to which any Group Company is a party pursuant to which (i) a third party has been granted, licensed, or provided, or otherwise has the right to access or use, any Intellectual Property Right owned or purported to be owned by or exclusively licensed to any Group Company (Company Intellectual Property Right) or any Company Product (Out-Licenses) (other than any non-disclosure agreement or any non-exclusive end user agreement for any Company Product, in each case that has been entered into in the ordinary course of business, that do not materially differ in substance from any of the Group Company’s applicable standard form agreements that have been made available to the Purchaser, and for which the total of all payments that have been made or are owed to any of the Group Companies does not exceed $25,000 (Standard NDA and XXXX)) and (ii) a third party has licensed or granted any right in any Intellectual Property Rights to any Group Company (In-Licenses) (other than (a) agreements for generally commercially available software in executable code form that the Group Companies have licensed for a cost of not more than $10,000 on an annual basis or $25,000 in the aggregate; (b) non-disclosure agreements that do not materially differ in substance from any of the Group Company’s standard form non-disclosure agreement that has been made available to the Purchaser; and (c) licenses for Open Source Software, (a), (b), and (c) collectively, (Other In-Licenses)). No Company Intellectual Property Right is subject to any Contract except for (x) the agreements listed in Annex F.2.2 to the Disclosure Letter; and (y) the Standard NDA and XXXX, in case, in the ordinary course of business. No Group Company is in breach of and has not breached any such Contract described within the scope of this paragraph F.2.2 and, as far as the Non Investor Indemnifying Parties are aware, no third party is in breach in any material respect of and has not breached in any material respect any provision of such Contract described within the scope of this paragraph F.2.2.
Annex F. 2.11 to the Disclosure Letter contains a complete and accurate list of all (i) of those Company Products that have been made available by any Group Company; and (ii) all of those Company Products that the Group Companies, in accordance with any product roadmap provided or described to the Purchaser, to develop, manufacture, deliver, plan to make commercially available, market, support, sell, provide or distribute, offer for sale, import or export for resale, or license out, in each case, within twelve (12) months after the Completion. The Group Companies have used commercially reasonable efforts in attempting to make all Company Products (and all parts thereof) free of any disabling codes or instructions and any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that are designed to permit unauthorized access or the unauthorized disablement or erasure of such Company Product (or all parts thereof) or data or other software of users (Contaminants). As far as the Non Investor Indemnifying Parties are aware, all of the Company Products that the Group Companies have manufactured, distributed, licensed, or sold were merchantable, free from defects in design, specifications, processing, manufacture, material or workmanship, and suitable for the purpose for which they were sold at the time at which they were sold, in each case in all material respects, except, in each case, (a) where any such failure to be merchantable, free from defects, or suitable, was corrected, fixed, or otherwise resolved by a Group Company in accordance with any contractual obligation of that Group Company, or other applicable warranty obligation, or (b) to the extent applicable warranties relating to any of the foregoing were disclaimed in an agreement with a customer or considered to be disclaimed under applicable Law.
Annex F. 4.2 to the Disclosure Letter (i) contains an accurate and complete list of (a) each item of Open Source Software that has been incorporated into any Company Product in any way, distributed or provided with any Company Product, or from which any part of any Company Product has been derived, (b) the applicable Open Source License for each such item of Open Source Software, (c) the Company Product to which each such item of Open Source Software relates, and (ii) generally describes, without limitation (a) the manner in which each item of such Open Source Software has been used, (b) whether (and, if so, how) the Open Source Software has been modified by or for any of the Group Companies, (c) whether the Open Source Software has been distributed by or for, or otherwise provided by or for, any of the Group Companies, and (d) whether (and if so, how) such Open Source Software has been incorporated into or linked to, or otherwise interacts with, any Company Product or any portion thereof.
