SETTLEMENT AGREEMENT

1. Stipulation and Order of Dismissal.

2. License Agreement. 

3. Legal Fees. 

4. Legal Compliance. 

5. Released Claims. 

6. ACKNOWLEDGMENTS. 

(a) Actavis ACKNOWLEDGES THAT IT MAY HEREAFTER DISCOVER CLAIMS OR FACTS IN ADDITION TO OR DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO EXIST WITH RESPECT TO Actavis’ RELEASED CLAIMS, THE FACTS AND CIRCUMSTANCES ALLEGED IN THE ACTION 

AND/OR THE SUBJECT MATTER OF THIS AGREEMENT, WHICH, IF KNOWN OR SUSPECTED AT THE TIME OF EXECUTING THIS AGREEMENT, MAY HAVE MATERIALLY AFFECTED THIS AGREEMENT.  NEVERTHELESS, UPON THE EFFECTIVENESS OF THE RELEASE OF Actavis’ RELEASED CLAIMS AS SET FORTH IN SECTION 5 ABOVE, Actavis HEREBY ACKNOWLEDGES THAT Actavis’ RELEASED CLAIMS INCLUDE WAIVERS OF ANY RIGHTS, CLAIMS OR CAUSES OF ACTION THAT MIGHT ARISE AS A RESULT OF SUCH DIFFERENT OR ADDITIONAL CLAIMS OR FACTS.  Actavis ACKNOWLEDGES THAT IT UNDERSTANDS THE SIGNIFICANCE AND POTENTIAL CONSEQUENCES OF SUCH A RELEASE OF UNKNOWN UNITED STATES JURISDICTION CLAIMS AND OF SUCH A SPECIFIC WAIVER OF RIGHTS.  ACTAVIS INTENDS THAT THE CLAIMS RELEASED BY IT UNDER THIS RELEASE BE CONSTRUED AS BROADLY AS POSSIBLE TO THE EXTENT THEY RELATE TO UNITED STATES JURISDICTION CLAIMS.  ACTAVIS IS AWARE OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:

(b) VIVUS ACKNOWLEDGES THAT IT MAY HEREAFTER DISCOVER CLAIMS OR FACTS IN ADDITION TO OR DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO EXIST WITH RESPECT TO VIVUS’ RELEASED CLAIMS, THE FACTS AND CIRCUMSTANCES ALLEGED IN THE ACTION AND/OR THE SUBJECT MATTER OF THIS AGREEMENT, WHICH, IF KNOWN OR SUSPECTED AT THE TIME OF EXECUTING THIS AGREEMENT, MAY HAVE MATERIALLY AFFECTED THIS AGREEMENT.  NEVERTHELESS, UPON THE EFFECTIVENESS OF THE RELEASE OF VIVUS’ RELEASED CLAIMS AS SET FORTH IN SECTION 5 ABOVE, VIVUS HEREBY ACKNOWLEDGES THAT VIVUS’ RELEASED CLAIMS INCLUDE WAIVERS OF ANY RIGHTS, CLAIMS OR CAUSES OF ACTION THAT MIGHT ARISE AS A RESULT OF SUCH DIFFERENT OR ADDITIONAL CLAIMS OR FACTS.  VIVUS ACKNOWLEDGES THAT IT UNDERSTANDS THE SIGNIFICANCE AND POTENTIAL CONSEQUENCES OF SUCH A RELEASE OF UNKNOWN UNITED STATES JURISDICTION CLAIMS AND OF SUCH A SPECIFIC WAIVER OF RIGHTS.  VIVUS 

INTENDS THAT THE CLAIMS RELEASED BY IT  UNDER THIS RELEASE BE CONSTRUED AS BROADLY AS POSSIBLE TO THE EXTENT THEY RELATE TO UNITED STATES JURISDICTION CLAIMS.  VIVUS IS AWARE OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:

7. Confidentiality. 

8. Term and Termination. 

9. No Assignment. 

10. Notice. 

11. Entire Agreement. 

12. Governing Law.

13. Severability. 

14. Waiver. 

15. Counterparts. 

16. Representations and Warranties. 

17. Construction. 

18. Headings. 

1.1 “Actavis ANDA” shall mean ANDA No. 204982, including all amendments, supplements and Replacements thereto as may be required by the FDA in order to obtain FDA approval thereof.

1.2 “Actavis ***” means ***  (***) of ***.

1.3 “Actavis ***” means, with respect to the Actavis Generic Product, (i) ***, inclusive of ***; (ii)  *** and (iii)  ***, in each case in accordance with GAAP as reflected

in Actavis’s or one of its Affiliate’s financial statements and as applied on a consistent basis and measured in United States dollars.

1.4  “Actavis Generic Product” shall mean the generic phentermine and topiramate extended-release product described in the Actavis ANDA as of the Execution Date, subject to any amendments, supplements or Replacements to such ANDA as may be required by the FDA in order to obtain FDA approval of such product. 

1.5 “Affiliate” shall mean, with respect to a particular Party, a person, corporation, partnership, or other entity that controls, is controlled by or is under common control with such Party.  For the purposes of this definition, the word “control” (including, with correlative meaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of fifty percent (50%) or more of the voting stock or other equity interest of such entity, or by contract or otherwise.  For clarity, a person or other entity shall be deemed an Affiliate only for so long as this definition is satisfied with respect to such person or entity.

1.6 “ANDA” shall mean an Abbreviated New Drug Application.

1.7 “Authorized Generic” shall mean any product that:  (a) contains the Compounds as the only active ingredients; (b) is Marketed in the Territory pursuant to NDA No. 022580; and (c) is Marketed in the Territory without the Trademark.

1.8 “Compounds” shall mean phentermine and topiramate extended-release.

1.9 “***” means *** (i) ***,  and (ii) ***.

1.10 “Effective Date” shall mean the date that the Stipulation And Order Of Dismissal is entered by the Court.

1.11 “Extended Unit Sales” means the number of Qsymia units sold as reported in the IMS Data (whether reported monthly or quarterly).

1.12 “FDA” shall mean the U.S. Food and Drug Administration.

1.13 “Final Court Decision” shall mean the issuance of a final decision from a district court from which no appeal has been or can be taken, or a mandate from a court of appeals from which no appeal (other than a petition to the Supreme Court for a writ of certiorari) has been or can be taken.

1.14 “Generic Equivalent” shall mean a pharmaceutical product that has received FDA approval for Marketing in the Territory pursuant to an ANDA or 505(b)(2) filing as an AB-rated equivalent to the NDA Product.

1.15  “GMPs” shall mean the then current good manufacturing practice regulations promulgated by the FDA.

1.16 “Launch Date” shall mean the earliest of:

7.1 “Laws” shall mean all applicable international, supranational, national, federal, state, provincial, regional and local laws, statutes, ordinances, codes, rules, regulations, orders, decrees or other pronouncements of any governmental, administrative or judicial authority in the Territory.    

7.2 “License” shall have the meaning assigned to such term in Section 2.1 of this License Agreement.

7.3 “Licensed Patents” shall mean U.S. Patent Nos. 7,056,890, 7,553,818, 7,659,256, 7,674,776, 8,580,298, 8,580,299, 8,895,057, 8,895,058, 9,011,905, 9,011,906, including any divisionals, continuations, continuations-in-part, reexaminations, or reissues thereof, and all patent term extensions and any pediatric exclusivities applicable to the corresponding NDA Product, in each case whether granted or allowed prior to or after the Execution Date.

7.4 “Manufacture” shall mean to make or have made in accordance with GMPs and the provisions of an ANDA approved by the FDA.

7.5 “Market” shall mean to distribute, import, use, market, sell,  and offer to sell, and “Marketing” shall have a corresponding meaning.

7.6 “Net Sales” shall mean, with respect to the Actavis Generic Product sold in the Territory, the aggregate gross sales amount invoiced by Actavis and its Affiliates on an arms-length basis to Third Parties in the Territory, less the following deductions, all determined in accordance with Actavis’ standard practices for other pharmaceutical products, consistently applied:

a. cash discounts given by Actavis (and its Affiliates) with respect to sales of the product in the Territory, ***;  

b. reasonable *** affecting the product;

c. reasonable ***;  

d. reasonable ***, based on sales by Actavis and its Affiliates to any  *** or similar programs;

e. reasonable *** for *** and *** to *** on account of *** or ***;

f. any government mandated ***, including, without limitation, *** (as amended or replaced); and

g. other specifically identifiable amounts that have been *** listed above.

7.7 “NDA” shall mean New Drug Application.

7.8 “NDA Product” shall mean the product Marketed under the Trademark that contains the Compounds as the only active ingredients and that is approved for Marketing in the Territory pursuant to NDA No.  022580 as of the Execution Date.

7.9 “Replacement” shall mean a new ANDA filing referencing the Vivus NDA that describes a product that is materially identical to the Actavis Generic Product, but assigned a new ANDA number without any new or different active pharmaceutical ingredient(s), and “replaced” shall have a corresponding meaning in the context of an ANDA owned or controlled by Actavis or its Affiliates. 

7.10 “Stipulation and Order of Dismissal” shall have the meaning assigned to such term in Section 1 of the Settlement Agreement.

7.11 “Term” shall mean the period from the Execution Date of this License Agreement until the date on which this License Agreement terminates as provided in Section  13.

7.12 “Territory” shall mean the United States of America, including its territories, possessions, and the Commonwealth of Puerto Rico.

7.13 “Third Party” shall mean any person or entity other than a Party or its Affiliates.

7.14 “Trademark” shall mean the trademark Qsymia® and any other trademark, service mark, corporate name or logo owned or controlled by Vivus and used in connection with the sale or distribution of a  phentermine and topiramate extended-release product pursuant to NDA No.  022580 in the Territory.

7.15 “Wholesaler or API Affiliate” means a subsidiary or Affiliate of a Party whose primary business is wholesale distribution of pharmaceutical products or the production of active pharmaceutical ingredients for incorporation into Third Parties’ finished dosage products. 

For clarity, Actavis’ Wholesaler or API Affiliates as of the Effective Date are ***.  Notwithstanding the foregoing or anything to the contrary in this License Agreement, a Wholesaler Affiliate or API Affiliate shall not be deemed *** for any purposes under this License Agreement.

2.1 Effective on and after the Launch Date, Vivus hereby grants to Actavis (and to the extent necessary, its suppliers, distributors and customers, as the case may be) a non-exclusive license to the Licensed Patents to the extent it would otherwise be infringed by the Marketing or Manufacture of the Actavis Generic Product in the Territory.  Except to the extent of the assignment permitted pursuant to Section  14.2, Actavis shall not have the right to sublicense or assign any of its rights under this license.

2.2 Notwithstanding anything to the contrary contained in Section 2.1, prior to the Launch Date, Actavis may engage in the following *** activities:

2.3 If necessary for Actavis to Market the Actavis Generic Product, Vivus further agrees to *** associated with the NDA Product, under commercially reasonable terms to be negotiated by the Parties in good faith.    

3.1 Except to the extent permitted by the License of Section 2.1 and the permitted *** activities of Section 2.2, neither Actavis nor any of its Affiliates, distributors or agents shall under any circumstances Manufacture or Market any Generic Equivalent of the NDA Product in the Territory prior to the expiration of the last to expire of the patents included in the Licensed Patents.

4.1 Except as provided in Section 1.16, the License and rights granted in Sections 2.1 and 2.2 above shall be non-exclusive.

4.2 Consistent with the provisions of Sections 1.16 and 4.1,  Vivus specifically reserves the right to license any other party who files or has filed an ANDA referencing the NDA Product to Market a Generic Equivalent of the NDA Product in the Territory (an “ANDA Filer”) in settlement of any pending or threatened litigation or other legal proceeding regarding any of the Licensed Patents or otherwise. 

4.3 Consistent with the provisions of Section 4.1,  Vivus specifically reserves the right to authorize and license any Third Party to Market an Authorized Generic in the Territory,  and further specifically reserves the right to Market an Authorized Generic in the Territory itself or through an Affiliate.

5.1 Vivus represents and warrants to Actavis that as part of its ***.  Vivus further represents and warrants: (i) ***; (ii) that the ***; and (iii) that the *** as ***.  Therefore, *** as follows:

(a) If the ***, or may be *** by ***, then the Launch Date will remain December 1, 2024,  *** pursuant to Sections 1.16(ii)-(vii) above;

(b) If the ***, and Vivus ***, then the Launch Date will be *** pursuant to Sections 1.16(ii)-(vii) above;

(c) If the *** that the ***, and Vivus ***, then the Launch Date may be *** pursuant to Sections 1.16(ii)-(vii) above:

(i) If ***, then the Launch Date will ***;

(ii) If the ***, is ***, then the Launch Date will ***;

(iii) If the ***, is ***, then the Launch Date will ***; 

(iv) If the ***, is ***, then the Launch Date will ***;

(d) If, by ***, then the Launch Date will be ***,  *** pursuant to Sections 1.16(ii)-(vii) above;

(e) Vivus may *** the Launch Date to *** of the Actavis Generic Product ***.

5.2 If Vivus *** as set forth in Section 5.1(c) above, Vivus will ***.    

6.1 If the Launch Date is accelerated pursuant to Sections 1.16(ii)-(vii) or Sections 5.1(b)-(e) above, Actavis will pay a Royalty according to the following schedule:

(a) ***;

(a) ***;

(a) ***;

6.2 Within *** after the end of the applicable calendar quarter following the Launch Date, Actavis shall submit to Vivus the Royalty owed pursuant to Section 6.1, if any, along with a royalty report outlining in reasonable detail the ***.  

6.3 *** True-Up.    During the License Term, ***, following the ***,  Teva shall perform a “true up” reconciliation within *** after the end of the applicable calendar year (and shall provide  Vivus with a written report of such reconciliation) of the deductions outlined in the definition of “Net Sales” and the costs included in “Actavis ***.”  The reconciliation shall be based on *** for any remaining liabilities incurred related to the product, but not yet paid at the end of the ***.  If the foregoing reconciliation report shows either an underpayment or an overpayment between the Parties, the Party owing payment to the other Party shall pay the amount of the difference to the other Party within *** after the date of delivery of such report.

6.4 *** True-Up.  Within *** of the end of the last calendar year during the Term in which fees are payable to Vivus pursuant to this Section 6, Actavis shall perform a “true-up” reconciliation (and shall provide Vivus with a written report of such reconciliation) of the items comprising deductions from Net Sales and the costs included in “Actavis ***.”  If the foregoing reconciliation report shows either an underpayment or an overpayment between the Parties, the Party owing payment to the other Party shall pay the amount of the difference to the other Party within *** after the date of delivery of such report.

6.5 To the extent that Vivus disagrees with the calculation of the Royalty made by Actavis under Section 6, Vivus shall have the right, but not the obligation, no more frequently than *** after delivery of the report setting forth such computation, to engage an independent certified public accounting firm of nationally recognized standing which is mutually agreeable to the Parties, such agreement not to be unreasonably withheld, conditioned or delayed (“General Auditor”), to conduct an audit, ***, of applicable books and records of Actavis and its

Affiliates solely for the purposes of determining the accuracy of any such Royalty calculation.  The General Auditor shall be given access to and shall be permitted to examine such books and records during normal business hours and at such location where such books and records are regularly maintained, upon *** prior written notice by Vivus to Actavis.  Prior to any such examination taking place, Actavis may require the General Auditor to enter into a commercially reasonable and customary confidentiality agreement with respect to the information to which the General Auditor is given access.  General Auditor  shall not disclose to Vivus or any Third Party any information reasonably labeled by Actavis as being confidential customer information regarding pricing or other competitively sensitive proprietary information. Vivus shall provide, without condition or qualification, Actavis with a copy of the report or other summary of findings prepared by such accountants promptly following its receipt of same.  If as a result of any inaccuracies set forth in such report, the amount(s) paid to Vivus under Section 6.1 was either deficient or excessive, then Actavis or Vivus, as the case may be, shall pay to the other an amount equal to the deficiency or excess within *** of the receipt of the auditor’s report.  In the event the General Auditor determines that the subject Royalty calculation is inaccurate, and such inaccuracy represents more than *** of the calculated amount and is in favor of Vivus, Actavis  shall pay to Vivus the reasonable and documented fees and expenses of the General Auditor in performing such audit.  In the event of any dispute between Vivus and Actavis regarding the findings of any such inspection or audit, the Parties shall initially attempt in good faith to resolve the dispute amicably between themselves, and if the Parties are unable to resolve such dispute within a commercially reasonable period of time, such dispute shall be resolved by an accountant from an internationally recognized independent accounting firm that is mutually agreeable to both of the Parties, and such accountant’s determination shall be binding.

7.1 In the event that a Third Party commences sale of a Generic Equivalent in the Territory without a license or other written authorization from Vivus (an “At Risk Launch”) Actavis shall *** by the *** or (ii) the Launch Date (the “Actavis ***”), but only if either (a) *** after such At Risk Launch; or (b) Vivus ***.

7.2 If Vivus ***, then Actavis, upon receipt of written notice from Vivus of such ***. 

8.1 Actavis represents and warrants to Vivus that all Generic Product Marketed by Actavis will be Manufactured, stored, shipped, handled and Marketed by it and its designees in accordance with GMPs and all applicable Laws, rules and regulations.

9.1 The terms of this License Agreement shall be maintained in strict confidence by the Parties except:  (a) as provided by Section 4 of the Settlement Agreement; (b) that Vivus may disclose such terms as may be necessary in connection with any litigation or other legal proceeding relating to any of the Licensed Patents, provided that such disclosure is made subject to a protective order and/or confidentiality agreement; (c) that either Party may disclose such terms, including but not limited to the Launch Date, if and as required by Law or regulation, including, without limitation, SEC and FDA reporting requirements, or by the rules or regulations of any stock exchange to which such party is subject; (d) that either Party may disclose such terms to the extent necessary to allow attorneys, auditors and advisors, who agree to keep such terms confidential, to render professional services to the Parties; (e) that the Parties may each issue a press release disclosing that the Parties have settled the Action, and that Actavis has received a license to the Licensed Patents, that will permit Actavis to commercially launch its Generic Product on the Launch Date, or earlier in certain circumstances, so long as such press release is approved by the other Party, which approval shall not be unreasonably withheld, conditioned, or delayed; and (f) that either Party may disclose such terms as needed to perform under the Settlement Agreement and this License Agreement.  The Parties acknowledge and agree that, upon its filing with the Court, the Stipulation and Order of Dismissal will be a matter of public record and shall not be subject to any confidentiality restrictions.  The Parties further agree that, upon the filing of the Stipulation and Order of Dismissal with the Court, the fact that the Parties have settled the Action will be a matter of public record and shall not be subject to any confidentiality restrictions, but the terms of such settlement shall be maintained in confidence as provided by this Section 9.1.

10.1 Each Party represents and warrants to the other that the execution and delivery by such Party of this License Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action and do not conflict with the terms of any other contract, agreement, arrangement or understanding to which such Party is a party.

10.2 Vivus represents and warrants that it has the right to license the Licensed Patents to Actavis under the terms and conditions set forth in the Settlement Agreement and this License Agreement.

10.3 Vivus represents that, if at any time before or after the Effective Date, Vivus or any of its Affiliates enters into, or has entered into, any agreement with a Third Party granting such Third Party a license, covenant or other authorization under any of the Licensed Patents to use, sell, offer to sell, make, have made, and/or import a Generic Equivalent in the

Territory having (i) *** set forth in Section 1.16, (ii) any launch date *** pursuant to Sections 1.16(ii)-(vii) or Sections 5.1(b)-(e), or (iii) *** than the respective periods of time set forth in Sections 2.2(a)-(c),  then Vivus shall notify Actavis within *** in this License Agreement ***. 

10.4 Each Party represents and warrants to the other Party that the grant of the Actavis License pursuant to this License Agreement constitutes the sole consideration being exchanged by or on behalf of the Parties in connection with the Settlement Agreement and no other form of compensation or other accommodation has been made between the Parties.

11.1 Indemnity by Actavis.  Actavis will indemnify and hold harmless Vivus and its Affiliates and their respective officers, directors, employees and agents from and against any loss, damage, liability or expense in connection with any and all actions, suits, claims, demands or prosecutions that may be brought or instituted against Vivus or such other indemnitees by Third Parties (including, without limitation, governmental authorities) based on or relating to: (i) any breach by Actavis of this License Agreement; and/or (ii) any aspect of the Actavis Generic Product that differs from the NDA Product, including, without limitation, any ***.    The Parties agree that the foregoing indemnities shall ***.

11.2 Indemnity by Vivus.  Vivus will indemnify and hold harmless Actavis and its Affiliates and their respective officers, directors, employees and agents from and against any loss, damage, liability or expense in connection with any and all actions, suits, claims, demands, or prosecutions that may be brought or instituted against Actavis or such other indemnitees by Third Parties (including, without limitation, governmental authorities) based on or relating to any breach by Vivus of this License Agreement.

11.3 Control of Litigation.  A Party seeking indemnification hereunder shall provide prompt written notice to the other Party (and, in any event, ***) of the assertion of any claim against such Party as to which indemnity is to be requested hereunder; provided, however, that any delay or failure to provide such notice shall not relieve the indemnifying party of its indemnity obligations unless, and solely to the extent that, such delay or failure to notify materially prejudices the indemnifying party’s ability to defend such claims.   The indemnifying Party shall have sole control over, and shall assume all expenses with respect to, the defense, settlement, adjustment or compromise of any claim as to which this Section 11 requires it to indemnify the other, provided that:  (a) the other Party may, if it so desires, employ counsel at its own expense to assist in the handling of such claim; and (b) the indemnifying Party shall obtain the prior written approval of the other Party, which shall not be unreasonably withheld, conditioned, or delayed, before entering into any settlement, adjustment or compromise of such claim or ceasing to defend against such claim if, pursuant thereto or as a result thereof: (i) 

injunctive or other relief would be imposed upon the other Party; or (ii) would result in an admission of wrongdoing by the other Party.

11.4 Limitation on Representations, Warranties and Indemnification.  NEITHER PARTY SHALL BE DEEMED TO MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY SET FORTH HEREIN.  ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY EACH PARTY.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR INDIRECT OR OTHER REMOTE MEASURES OF DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH GENERIC PRODUCT SOLD OR DISTRIBUTED BY SUCH PARTY OR OTHERWISE ARISING IN RESPECT OF THIS LICENSE AGREEMENT.

11.5 Certain Rights Unaffected.  The Parties acknowledge that nothing set forth in this License Agreement, including, without limitation, the provisions of Section 11.5 shall be deemed to limit or otherwise affect the availability of any rights or remedies arising at law or equity to which Vivus may be entitled as a result of the sale or distribution in the Territory by Actavis or any Affiliate of any Actavis Generic Product prior to the Launch Date or the Actavis At Risk Period.  The Parties stipulate and agree that any such sale or distribution in the Territory by Actavis or any Affiliate of any Actavis Generic Product prior to the Launch Date or the Actavis At Risk Period would cause immediate irreparable harm to Vivus for which there would be no adequate remedy in damages or otherwise at law.  The parties further stipulate that any such sale or distribution of the Actavis Generic Product by Actavis or any Affiliate prior to the Launch Date or the Actavis At Risk Period will constitute a material breach of this agreement entitling Vivus to injunctive relief against Actavis.  For the avoidance of doubt, internal transfers of the Actavis Generic Product between and among Actavis and its Affiliates and Wholesaler Affiliates shall not be deemed “sale or distribution” of the Actavis Generic Product.

12.1 Actavis shall have no right to use any of Vivus’ names or any Trademark and shall have no rights to any other intellectual property or regulatory exclusivities or approvals held by Vivus or its Affiliates other than to the extent of the License provided by Section 2.1 and activities permitted under Section 2.2. 

13.1 Unless earlier terminated in accordance with the terms hereof, the term of this License Agreement (the “Term”) shall extend from the Execution Date until the earlier of:  

(a) the expiration of the last to expire of the patents included in the Licensed Patents,  including any reissue or reexamination thereof; or (b) the date of a Final Court Decision that all of the asserted claims of the Licensed Patents are invalid and/or unenforceable.  For the avoidance of doubt, as defined in Section 1.19 of this License Agreement, the Licensed Patents includes all patent term extensions and pediatric exclusivities applicable to the NDA Product corresponding to the Licensed Patents, in each case whether granted or allowed prior to or after the Execution Date, and the Term shall run until the last to expire of such extensions and pediatric exclusivities, whenever granted. 

13.2 Each Party may terminate this License Agreement and its obligations hereunder in the event of a material breach by the other Party, which breach remains uncured for *** (in the ***) after written notice is provided to the breaching Party specifying the nature of the breach in reasonable detail and demanding its cure.

13.3 Notwithstanding any other provision of this License Agreement, the Parties acknowledge and agree that the sale of any Actavis Generic Product before the Launch Date or the Actavis At Risk Period by Actavis or any of its Affiliates, distributors, or agents shall constitute an immediate, material breach by Actavis of this License Agreement for which Vivus may elect to terminate this License Agreement without prior notice or an opportunity to cure.

13.4 This License Agreement may be terminated by either Party upon at least *** prior written notice thereof if the other Party makes an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party, or has a receiver or trustee appointed for all or substantially all of its property, provided that in the case of an involuntary bankruptcy proceeding such right to terminate shall only become effective if the Party consents to the involuntary bankruptcy or such proceeding is not dismissed within *** after the filing thereof.

13.5 Expiration or termination of this License Agreement shall not relieve the Parties of any obligation accruing prior to such expiration or termination.  Any expiration or early termination of this License Agreement shall be without prejudice to the rights of either Party against the other accrued or accruing under this License Agreement prior to termination.

14.1 Notice.  Any notice required or permitted to be given or sent under this License Agreement shall be hand delivered or sent by express delivery service or certified or registered mail, postage prepaid, to the Parties at the addresses indicated below. 

14.2 No Assignment.  This License Agreement may not be assigned or transferred to a third party without the express prior written consent of all the other Parties hereto, which consent shall not be unreasonably withheld,  conditioned, or delayed, except to a successor to all or substantially all of the business of the assigning or transferring Party to which

this License Agreement pertains (whether by license or sale of assets, stock, merger, consolidation or otherwise), in which case the Party shall assign this License Agreement to such successor, provided that a Party may in the ordinary course of its business assign its rights under this License Agreement to an Affiliate or may transfer the rights under this License Agreement from one Affiliate to another without the prior consent of the other.  The covenants, rights and obligations of a Party under this License Agreement shall remain binding upon the transferring Party and shall inure to the benefit of and be binding upon any successor or permitted assignee of the Party, any assignee of the Actavis ANDA, and any assignee of any of the Licensed Patents.

14.3 Amendment.  This License Agreement may not be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the Party against which enforcement of such change, waiver, discharge or termination is sought.

14.4 Superiority of Agreements.  The Parties agree that the provisions of this License Agreement, together with any written amendments hereto, supersede and shall prevail over any inconsistent statements or provisions contained in any prior discussions, arrangements or comments between the Parties or in any documents passing between the Parties.  Notwithstanding the foregoing, the Settlement Agreement shall be deemed of equal dignity to this License Agreement and this License Agreement shall be construed together with the Settlement Agreement in a consistent manner as reflecting a single intent and purpose.

14.5 Governing Law.  This License Agreement shall be governed, interpreted and construed in accordance with the laws of the State of New Jersey, without giving effect to choice of law principles.  The Parties irrevocably agree that the United States District Court for the District of New Jersey shall have exclusive jurisdiction to adjudicate any disputes arising out of or in connection with this License Agreement and that, accordingly, any such proceeding arising out of or in connection with this License Agreement shall be brought in the United States District Court for the District of New Jersey.   Notwithstanding the foregoing, if there is any dispute for which the federal district court in the State of New Jersey does not have subject matter jurisdiction, the state courts in New Jersey shall have jurisdiction.  In connection with any dispute arising out of or in connection with this License Agreement each Party hereby expressly consents and submits to the personal jurisdiction of the state and federal courts located in the State of New Jersey.

14.6 Counterparts.  This License Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

14.7 Headings.  The Headings of this License Agreement are solely for the convenience of reference and shall not affect its interpretation.

14.8 Negation of Agency.  Nothing contained herein shall be deemed to create any relationship, whether in the nature of agency, joint venture, partnership or otherwise, between Actavis and Vivus.   Neither Party shall be authorized to bind or obligate the other Party in any manner.