Common use of ABX Clause in Contracts

ABX. ABX represents, warrants and covenants to GNE that: (a) it has the full right and authority to enter into this Agreement and grant the rights and licenses granted herein; (b) it has not previously granted, and during the term of this Agreement will not grant, any rights inconsistent or in conflict with the rights and licenses granted to GNE herein, including without limitation, any right, license in and to the Licensed Technology granted under this Agreement, or any portion thereof, with respect to the Products or their development, manufacture, use or sale; (c) to its knowledge as of the Option Effective Date, there are no existing or threatened actions, suits or claims pending against ABX with respect to the Licensed Technology or the right of ABX to enter into and perform its obligations under this Agreement or the [*] Product License; (d) it will not take any action or fail to take any action under this Agreement that will cause a breach of the GenPharm Cross-License, the Xenotech Agreement, the Product License, or any ABX In-License; provided, however, that it shall not be a breach of this covenant if ABX cures any breach of such third party agreement pursuant to the cure provisions contained therein; (e) as of the Option Effective Date, ABX has no knowledge (without the obligation to perform due diligence) of any rights of third parties that would interfere with the use of the ABX Know-How or practice of the ABX Patent Rights as contemplated under this Agreement (including, without limitation, work under the Research Plan or otherwise in the Research Field pursuant to this Agreement or the [*] Product License), and, as of the Option Effective Date, ABX has no knowledge (without the obligation to perform due diligence) that any patents or patent applications within the ABX Patent Rights are invalid or unenforceable or that their practice as licensed hereunder would infringe patent rights of third parties, provided, however, that this representation does not apply to possible infringements relating to the Product Antigen; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. (f) as of the Option Effective Date, Cell Genesys, Inc. ("CGI") has assigned to ABX all of CGI's rights and obligations under the Xenotech Agreement, and ABX is a party to the Xenotech Agreement in lieu of CGI; (g) on the first date on which the Product License for the Product Antigen between ABX and XT and the [*] Product License between ABX and GNE are both in full force and effect, and thereafter so long as both are in effect, ABX shall be and remain XT's exclusive licensee and sublicensee (except with respect to the research license set forth in Article 3 of the Xenotech Agreement and the licenses granted in the GenPharm Cross License) for all the uses of the Licensed Technology relating to Products in the Field throughout the Territory, and GNE shall be ABX's exclusive sublicensee thereunder for all uses of the Licensed Technology relating to the Products in the Field throughout the Territory, as more fully set forth in the [*] Product License and on the terms and conditions set forth therein; (h) it has provided to GNE on or before the Option Effective Date complete copies of all applicable ABX In-Licenses setting forth all applicable limitations or restrictions described in Section 3.2.3 (it being understood that the financial terms have been redacted from some or all such copies); (i) Based upon information provided to ABX by GNE concerning GNE's intellectual property rights in [*] and to the best of ABX's knowledge (without the obligation to perform due diligence), ABX has the right to obtain from XT a Product License that is an "Exclusive Worldwide Product License" (as defined in the Xenotech Agreement and in the form attached thereto as an exhibit). ABX will provide GNE with a complete (excepting only for financial terms) copy of such Product License as signed by all parties thereto, as required under Section 3.2.2 or 3.2.3 above; (j) Based upon information provided to ABX by GNE concerning GNE's intellectual property rights in [*] and to the best of ABX's knowledge (without the obligation to perform due diligence), JTI does not have the right under the Xenotech Agreement to obtain an "Exclusive Home Territory Product License" or a "Co-Exclusive Worldwide Product License" (as these are defined in the Xenotech Agreement and attached thereto as exhibits) for the Product Antigen, or any other right or license under the Licensed Technology to develop, make and have made, use, sell, lease, offer to sell or lease, import, export, otherwise transfer physical possession of or otherwise transfer title to Products in the Field in the Territory, except, in each case, with respect to the research license set forth in Article 3 of the Xenotech Agreement. ABX shall notify GNE promptly in writing of assertion by JTI (if any) that it may have any such rights anywhere in the Territory; (k) ABX has nominated the Product Antigen under Section 7.1 of the Xenotech Agreement and taken every other step necessary under the Xenotech Agreement to obtain the right to acquire an "Exclusive World Wide Product License" under the Xenotech Agreement; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. (l) ABX shall, at the request of GNE, discuss with GNE ABX's interpretation of material terms and conditions of ABX In-Licenses, including, without limitation, any limitations on ABX's right to further transfer or grant licenses or sublicenses to GNE to any and all rights to technology within the scope of the ABX Patent Rights and/or ABX Know-How under any ABX In-License; (m) ABX shall not agree to any termination, modifications or amendments to any ABX In-Licenses that would negatively affect GNE's rights under this Agreement without first obtaining Genentech's prior written consent, and ABX shall notify GNE as soon as practicable of any material modification or amendment of any ABX In-License that affects (positively or negatively) GNE's rights or obligation under this Agreement or the [*] Product License; (n) ABX shall provide GNE promptly with a copy of any notice of default by ABX and/or its sublicensee under any ABX In License, and of any notice of termination by any other party to any ABX In License; and (o) ABX shall not use or permit others to use cells created by GNE or ABX from immunization of XenoMouse Animals with the Product Antigen under this Agreement, the [*] Product License, or the MTA in any way without GNE's prior written consent nor shall ABX directly or indirectly create, incur, assume or suffer to exist, any lien, security interest or other similar encumbrance of any kind, or any other type of preference, as such term is used in bankruptcy law, upon or with respect to such cells.

ABX. ABX represents, warrants and covenants to GNE that: (a) it has the full right and authority to enter into this Agreement and grant the rights and licenses granted herein; (b) it has not previously granted, and during the term of this Agreement will not grant, any rights inconsistent or in conflict with the rights and licenses granted to GNE herein, including without limitation, any right, license in and to the Licensed Technology granted under this Agreement, or any portion thereof, with respect to the Products or their development, manufacture, use or sale; (c) to its knowledge as of the Option Effective DateDate and except as set forth on Schedule A hereto, there are were no existing or threatened actions, suits or claims pending against ABX with respect to the Licensed Technology or the right of ABX to enter into and perform its obligations under this Agreement or the [*] Product LicenseAgreement with XT, and ABX has informed GNE of all such existing or threatened actions, suits or claims of which ABX is aware as of the Effective Date; (d) it will not take any action or fail to take any action under this Agreement that will cause a breach of the GenPharm Cross-License, the Xenotech Agreement, the Product License, or any ABX In-License; provided, however, that it shall not be a breach of this covenant if ABX cures any breach of such third party agreement pursuant to the cure provisions contained therein; (e) as As of the Option Effective Date, Date and except as set forth on Schedule A hereto ABX has (a) had no knowledge (without the obligation to perform due diligence) of any rights of third parties that would interfere with the use of the ABX Know-How or practice of the ABX Patent Rights as contemplated under this Agreement (including, without limitation, work under the Research Plan or otherwise in the Research Field pursuant to this the GNE Option Agreement or the [*] Product Licensethis Agreement), and, as of the Option Effective Date, ABX has and (b) had no knowledge (without the obligation to perform due diligence) that any patents or patent applications within the ABX Patent Rights are invalid or unenforceable or that their practice as licensed hereunder would infringe patent rights of third parties, provided, however, that this representation does not apply to possible infringements relating to the Product Antigen; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.; (f) as of the Option Effective Date, Cell Genesys, Inc. ("CGI") has had assigned to ABX all of CGI's rights and obligations under the Xenotech Agreement, and ABX is now a party to the Xenotech Agreement in lieu of CGI; (g) on the first date on which the Product License for the Product Antigen between ABX and XT and the [*] Product License between ABX and GNE are both in full force and effect, and thereafter so long as both are in effect, ABX shall be and remain XT's exclusive licensee and sublicensee (except with respect to the research license set forth in Article 3 of the Xenotech Agreement and the licenses granted in the GenPharm Cross License) for all the uses of the Licensed Technology relating to Products in the Field throughout the Territory, and GNE shall be ABX's exclusive sublicensee thereunder for all uses of the Licensed Technology relating to the Products in the Field throughout the Territory, as more fully set forth in the [*] Product License and on the terms and conditions set forth therein; (h) it has provided to GNE GNE, on or before the Option Effective Date Date, complete copies of all applicable ABX In-Licenses setting forth all applicable limitations or restrictions described in Section 3.2.3 2.3 (it being understood that the financial terms have been redacted from some or all such copies) and shall, at GNE's request, discuss with GNE ABX's interpretation of material terms (excepting only financial terms) and conditions of such ABX In-License, including, without limitation, any limitations on ABX's right to further transfer or grant licenses or sublicenses to GNE to any and all rights to technology within the scope of the ABX Patent Rights and/or ABX Know-How under any ABX In-License; (h) on or before the Effective Date, ABX entered into a Product License for the Product Antigen with XT under the Xenotech Agreement and that Product License is an [Exclusive Worldwide Product License] [Exclusive Qualified Worldwide Product License] (as such term is defined in the Xenotech Agreement), and GNE is ABX's exclusive sublicensee of ABX for all uses of the Licensed Technology under the Produce License relating to Products in the Field throughout the Territory, as provided in this Agreement; (i) Based upon information provided to ABX by GNE concerning GNE's intellectual property rights in [*] and to the best of ABX's knowledge (without the obligation to perform due diligence), ABX has the right to obtain from XT a Product License that is an "Exclusive Worldwide Product License" (as defined in the Xenotech Agreement and in the form attached thereto as an exhibit). ABX will provide provided GNE with a complete copy (excepting only for financial terms) copy of such Product License as signed by all parties thereto. During the term of this Agreement: (i) ABX will not agree to any modifications or amendments to such Product License that restrict or limit or otherwise negatively affect the rights and licenses granted to GNE hereunder, as required and shall not terminate any licenses therein, in any case without GNE's prior written consent in its sole discretion; and (ii) ABX shall provide GNE promptly with a copy of any notice of default by ABX and/or its Sublicensee under Section 3.2.2 or 3.2.3 abovesuch Product License, and of any notice of termination by any other party thereto; (j) Based upon information provided to ABX by GNE concerning GNE's intellectual property rights in [*] and to If the best of ABX's knowledge (without the obligation to perform due diligence)Product License is an Exclusive Worldwide Product License, JTI does not have the right under the Xenotech Agreement to obtain an "Exclusive Home Territory Product License" or a "Co-Exclusive Worldwide Product License" (as these are defined in the Xenotech Agreement and attached thereto as exhibits) for the Product Antigen, or any other right or license under the Licensed Technology to develop, make and or have made, use, sell, lease, or offer to sell or lease, import, export, otherwise transfer physical possession of or otherwise transfer title to Products in the Field in the Territory, except, in each case, with respect to the research license set forth in Article 3 of the Xenotech Agreement. ABX shall notify GNE promptly in writing of assertion by JTI (if any) that it may have any such rights anywhere in the Territory; (k) ABX has nominated the Product Antigen under Section 7.1 of the Xenotech Agreement and taken every other step necessary under the Xenotech Agreement to obtain the right to acquire an "Exclusive World Wide Product License" under the Xenotech Agreement; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. (l) ABX shall, at the request of GNE, discuss with GNE ABX's interpretation of material terms and conditions of ABX In-Licenses, including, without limitation, any limitations on ABX's right to further transfer or grant licenses or sublicenses to GNE to any and all rights to technology within the scope of the ABX Patent Rights and/or ABX Know-How under any ABX In-License; (m) ABX shall not agree to any termination, modifications or amendments to any ABX In-Licenses that would negatively affect GNE's rights or obligations under this Agreement without first obtaining Genentech's prior written consent, and ABX shall notify GNE as soon as practicable of any material modification or amendment of any ABX In-License that affects (positively or negatively) GNE's rights or obligation obligations under this Agreement or the [*] Product LicenseAgreement; (nl) ABX shall provide GNE promptly with a copy of any notice of default by ABX and/or its sublicensee Sublicensee under any ABX In In-License, and of any notice of termination by any other party to any ABX In In-License; and (om) ABX shall not use or permit others to use cells created by GNE or ABX from immunization of XenoMouse Animals with the Product Antigen under this Agreement, the [*] Product License, or the MTA in any way without GNE's prior written consent nor shall ABX directly or indirectly create, incur, assume or suffer to exist, any lien, security interest or other similar encumbrance of any kind, or any other type of preference, as such term is used in bankruptcy law, upon or with respect to such cells.