Common use of Bayer Representations and Warranties Clause in Contracts

Bayer Representations and Warranties. Bayer hereby represents and warrants that: 3.3.1 Bayer and, as of the Closing Date each of its Affiliates, is a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of incorporation, is qualified to do business in all jurisdictions where the nature of its business and properties so require and has the limited liability company power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite limited liability company action on the part of Bayer. This Agreement has been duly executed and delivered by Bayer and, assuming the due execution and delivery by Maxygen, constitutes the valid, binding and enforceable obligation of Bayer, except as that enforceability may be (1) limited by any applicable bankruptcy, insolvency, reorganization, moratorium and/or similar laws affecting the enforcement of creditors’ rights generally, (2) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity and/or at law) and/or (3) limited by general principles of Applicable Law regarding the enforceability of arbitral awards and judicial decisions. 3.3.2 Bayer is not subject to, and/or bound by, any provision of any articles, certificates of incorporation and/or by-laws; any mortgage, deed of trust, lease, note, shareholders’ agreement, bond, indenture, license, permit, trust, custodianship, agreement and/or other instrument and/or restriction; and/or any judgment, order, writ, injunction and/or decree of any Governmental Authority and/or arbitrator, in each case, that would prevent, and/or be violated by, and/or under which there would be a default, termination and/or right of termination, as a result of, nor is the consent of any Third Party required for, the execution, delivery and performance by Bayer of this Agreement and the obligations contained herein and where such violation, default, termination and/or right of termination would have a material adverse effect on the ability of Bayer to perform its obligations hereunder. 3.3.3 The execution, delivery and performance of this Agreement, and consummation of the transactions contemplated by this Agreement do not require any Governmental Approval. No consent of any Third Party (other than Governmental Approvals) was required to be obtained by Bayer for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. 3.3.4 To the Knowledge of Bayer, there is no action, suit, investigation and/or proceeding pending, and/or threatened before any court and/or arbitrator and/or any Governmental Authority which (1) could reasonably be expected to have a material adverse effect on Bayer’s ability to perform its obligations hereunder and/or (2) in any manner challenges and/or seeks to prevent and/or enjoin the transaction contemplated by this Agreement.

Bayer Representations and Warranties. Bayer hereby represents and warrants that: 3.3.1 Bayer andwarrants, as of the Closing Date each of its Affiliatesdate hereof (except to the extent otherwise expressly provided for herein), that: (a) Bayer is (i) a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of incorporationDelaware, (ii) is qualified to do business in all jurisdictions where as the nature of its business and properties so require and where the failure to be so qualified would result in a Bayer Material Adverse Effect and (iii) has the limited liability company power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite limited liability company action on the part of Bayer. Bayer has not adopted a complete or partial plan of liquidation. This Agreement has been duly executed and delivered by Bayer and, assuming the due execution and delivery by MaxygenMaxygen and Holdings, constitutes the valid, binding and enforceable obligation of Bayer, except as that enforceability may be (1) limited by any applicable bankruptcy, insolvency, reorganization, moratorium and/or or similar laws affecting the enforcement of creditors’ rights generally, (2) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity and/or or at law) and/or and (3) limited by general principles of Applicable Law regarding the enforceability of arbitral awards and judicial decisions. Both before and after giving effect to the purchase and sale of the Acquired Assets and the disbursement of the Purchase Price, Bayer was and is Solvent. 3.3.2 (b) Bayer is not subject to, and/or or bound by, any provision of any articles, articles or certificates of incorporation and/or or by-laws; , any mortgage, deed of trust, lease, note, shareholders’ agreement, bond, indenture, license, permit, trust, custodianship, or other instrument, agreement and/or other instrument and/or or restriction; and/or , or any judgment, order, writ, injunction and/or or decree of any Governmental Authority and/or or arbitrator, in each case, that would prevent(i) prevent the consummation or the execution, and/or delivery and performance by Bayer of this Agreement and the obligations contained herein, or (ii) be violated by, and/or or under which there would be a default, termination and/or or right of termination, as a result of, nor is the consent of any Third Party required for, the execution, delivery and performance by Bayer of this Agreement and the obligations contained herein and where such violation, default, termination and/or or right of termination would have result in a material adverse effect on the ability of Bayer to perform its obligations hereunderMaterial Adverse Effect. 3.3.3 (c) The execution, delivery and performance of this Agreement, and consummation of the transactions contemplated by this Agreement by Bayer do not require any Governmental Approval. No consent of any Third Party (other than Governmental Approvals) was will be required to be obtained by Bayer for the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyhereby which, if not obtained, would result in a Bayer Material Adverse Effect. 3.3.4 To the Knowledge of Bayer, there (d) There is no action, suit, investigation and/or or proceeding pending, and/or or to the Knowledge of Bayer, threatened before any court and/or or arbitrator and/or or any Governmental Authority which (1i) could reasonably be expected to have a material adverse effect on Bayer’s ability to perform its obligations hereunder and/or Bayer Material Adverse Effect or (2ii) in any manner challenges and/or or seeks to prevent and/or or enjoin the transaction transactions contemplated by this Agreement. (e) Bayer has and will have at Closing and at such time(s) as any Compound Fee may be required to be paid pursuant to Section 2.6 hereof, sufficient funds available to pay such amounts. (f) None of Bayer or any of its Affiliates or any of their officers, directors or employees has employed any broker or finder or incurred any other liability for any brokerage fees, commissions or finders’ fees in connection with the transactions contemplated hereby. (g) Except for the representations and warranties contained in this Agreement and the License Agreement and any closing deliveries hereunder or thereunder, none of Bayer or its Affiliates or any of their officers, directors, employees, agents or representatives makes any representations or warranties, and Bayer hereby disclaims any other representations or warranties, whether made by Bayer or its Affiliates or any of their officers, directors, employees, agents or representatives, with respect to the execution and delivery of this Agreement and the transactions contemplated hereby. (h) Bayer acknowledges that Maxygen has advised it that Maxygen maintains an email retention policy that provides for the automatic deletion of all Emails from Maxygen’s computer servers no later than one (1) year and one (1) week following the date that such Email was sent, received or modified. (i) The determination as to which authorizations, licenses, consents, orders and approvals of Governmental Authorities were determined to be necessary for the consummation of the transactions contemplated by this Agreement was made in part based upon the information provided by Bayer set forth on Schedule 4.2(i) and the matters set forth on Schedule 4.2(i) are true and correct in all material respects. (j) Bayer acknowledges that the representations and warranties in this Section 4.2 constitute material representations of fact upon which reliance was placed by Maxygen when entering into this Agreement.