Common use of By the Licensor Clause in Contracts

By the Licensor. The Licensor hereby represents and warrants to the Fresenius Parties as follows: (a) Licensor has title to and ownership of or is a licensee with respect to, in each case free and clear of encumbrances other than encumbrances contained in the license agreements appointing the Licensor as such licensee, the Patents, Trademarks and Know-How licensed by the Licensor to the Licensee under this Agreement, subject to the D&N Associates Agreement and the Strahilevitz Agreement, both of which are being assigned by Licensor to Licensee and, to the best of Licensor's knowledge, the manufacture, sale and distribution of the Product utilizing the Patents, Trademarks and Know- How does not infringe any intellectual property rights of any person who has not granted Licensor a license. (b) Proper use of the Patents, Trademarks and Know-How is sufficient for the production of the Product as constituted on the date hereof, and the Licensor has sufficient rights to the Patents, Trademarks and Know-How reasonably necessary for use in connection with production of the Product, the absence of which would have a material adverse effect on this Agreement or the transactions contemplated hereby. (c) Except as disclosed in writing to the Fresenius Parties, there is no pending or, to its knowledge, threatened litigation against Licensor which alleges that Licensor's development, manufacture, use and sale of the Product have violated or would violate any intellectual property rights of any other person, and the Licensor has not received any written communication alleging that the Licensor's development, manufacture or sale of the Product has violated and has no knowledge that the Licensor's development, manufacture or sale of the Product have violated, the intellectual property rights of any person. (d) The Licensor has full right, power, and authority to enter into and perform its obligations under this Agreement. This Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Licensor, and this Agreement has been duly and validly executed and delivered by Licensor and, upon due and valid execution and delivery by each of the other parties hereto, will constitute a legal and binding obligation of the Licensor, enforceable against Licensor in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general principles of equity.

By the Licensor. The Licensor hereby represents and warrants to the Fresenius Parties as follows: (a) Licensor has title to and ownership of or is a licensee with respect to, in each case free and clear of encumbrances other than encumbrances contained in the license agreements appointing the Licensor as such licensee, the Patents, Trademarks and Know-How licensed by the Licensor to the Licensee under this Agreement, subject except as disclosed to the D&N Associates Agreement and Fresenius Parties in the Strahilevitz Securities Purchase Agreement, both of which are being assigned by Licensor to Licensee and, to the best of Licensor's knowledge, the manufacture, sale and distribution of the Product utilizing the Patents, Trademarks and Know- Know-How does not infringe any intellectual property rights of any person who has not granted Licensor a license.. ---------------------------------- * Confidential Treatment Requested (b) Proper use of the Patents, Trademarks and Know-How is sufficient for the production of the Product as constituted on the date hereof, and the Licensor has sufficient rights to the Patents, Trademarks and Know-How reasonably necessary for use in connection with production of the Product, the absence of which would have a material adverse effect on this Agreement or the transactions contemplated hereby. (c) Except as disclosed in writing to the Fresenius Parties, there is no pending or, to its knowledge, threatened litigation against Licensor which alleges that Licensor's development, manufacture, use and sale of the Product have violated or would violate any intellectual property rights of any other person, and the Licensor has not received any written communication alleging that the Licensor's development, manufacture or sale of the Product has violated and has no knowledge that the Licensor's development, manufacture or sale of the Product have violated, the intellectual property rights of any person. (d) The Licensor has full right, power, and authority to enter into and perform its obligations under this Agreement. This Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Licensor, and this Agreement has been duly and validly executed and delivered by Licensor and, upon due and valid execution and delivery by each of the other parties hereto, will constitute a legal and binding obligation of the Licensor, enforceable against Licensor in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general principles of equity. (e) The execution, delivery and performance of this Agreement by Licensor and the consummation of the transactions contemplated hereby by Licensor will not violate, or constitute a breach or default (whether upon lapse of time and/or the occurrence of any act or event or otherwise) under, the constitutive documents or by-laws of Licensor, any material contract of Licensor, result in the imposition of any material encumbrance against any asset or properties of Licensor (other than pursuant to this Agreement) or, to the best of Licensor's knowledge, violate, in any material respect, any law. To the best of Licensor's knowledge, the execution and delivery of this Agreement by Licensor, the grant of the licenses under the Patents, Trademarks and Know-How in accordance with the terms hereof and the consummation of any related or contemplated transactions by Licensor will not require filing or registration by Licensor with, the issuance of any permit or approval to Licensor by, or waiver in favor of Licensor of any of the foregoing by, any other Third Party or governmental entity under the terms of any applicable laws or contracts, other than Regulatory Clearances, Final Regulatory Approvals and the filings related thereto contemplated by this Agreement. (f) Prior to the satisfaction of any condition to the obligation to purchase any securities pursuant to Section 11.2, the Common Stock to be purchased by Fresenius AG pursuant to Section 11.2 will be duly authorized by Licensor and, upon issuance and sale of such Common Stock to Fresenius AG against payment of the purchase price therefor as contemplated by Section 11.2, such Common Stock will be validly issued, fully paid and non-assessable. Assuming the continued accuracy and effectiveness of the representations of Fresenius AG in Sections 2 through 7 of Article IV of the Securities Purchase Agreement, it is not necessary in connection with the issuance of the Common Stock to be issued pursuant to Section 11.2 to register such Common Stock under the Securities Act of 1933, as amended, or to qualify the offer or sale of the Common Stock under the securities or Blue Sky law of any state.