Common use of By Lilly Clause in Contracts

By Lilly. Lilly represents and warrants to Anthera that: (a) Exhibit A lists all patent applications and patents owned by or licensed to Lilly or its Affiliates as of the Effective Date that cover or claim any Licensed Products or the manufacture or use of Licensed Products; (b) Neither Lilly nor any of its Affiliates has assigned or licensed to any Third Parties or Affiliates any patent applications or patents listed in Exhibit A. Further, Lilly has not assigned or licensed to any Third Parties or Affiliates any other patent applications or patents that relate to the composition of matter of, or methods of making or using any Licensed Products; (c) as of the Effective Date, Lilly is not aware of any pending or threatened litigation against Lilly or its Affiliates or licensees (and has not received any communication relating thereto) that alleges that Lilly’s or its Affiliates’ or licensees’ activities with respect to the Licensed Products or the Licensed Technology have infringed or misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any other Person; (d) Lilly owns and Controls the Licensed Patent Rights identified on Exhibit A. (e) Lilly is not aware of any facts or prior art that have lead Lilly to believe that any of the Licensed Patent Rights are or will be invalid or unenforceable; (f) Lilly is not aware of any facts that lead it to believe that exercise of the Licensed Technology will infringe or misappropriate the intellectual property rights of others; (g) Lilly is not aware of any material unauthorized use, infringement, or misappropriation of any of the Licensed Technology by a Third Party; (h) prior to and up through the Effective Date, Lilly and its Affiliates have not granted any licenses, options, or covenants-not-to-xxx to Third Parties with respect to any of the Licensed Product, and Lilly has the right to grant licenses under the Licensed Technology as set forth in this Agreement; (i) as of the Effective Date, there is no interference action, opposition, reissue or reexamination proceeding, or any intellectual property litigation pending before any patent office or court concerning any of the Licensed Patent Rights Controlled by Lilly as of the Effective Date. (j) Lilly has materially complied at all times with the provisions of the FD&C Act and all applicable laws and regulations, and neither it, its employees, nor any Person that has provided services to Lilly in connection with the Licensed Technology and/or Licensed Products has been debarred under the provisions of such FD&C Act; (i) Lilly has attempted in good faith to provide to Anthera a complete copy of the Regulatory Documents for all Licensed Products to the extent the same are in the possession of Lilly and could be readily located, including all amendments and supplements thereto; and (ii) Lilly has not granted to any Affiliate or Third Party a right to reference any of the Regulatory Documents and has not assigned its interest in any of such Regulatory Documents to an Affiliate or Third Party; (l) Lilly has attempted in good faith to transfer to Anthera all Lilly Licensed Technology in its tangible possession or control, to the extent same are in the possession of Lilly or its Affiliates and could be readily located; (m) To the best of its knowledge, Lilly has disclosed to Anthera agreements and other arrangements that are necessary to be assigned to Anthera in order to permit Anthera to exercise its rights and enforce all of its obligations under this Agreement (as such rights and obligations will be in place after the Effective Date). Lilly has also made known to Anthera other third party agreements relating to contract manufacturing. To the extent Lilly becomes aware of additional such agreements or arrangements (“Additional Agreements”) it will promptly notify Anthera thereof; and (n) Lilly has the full right to grant to Anthera the rights and licenses it purports to grant hereunder. Neither the execution and the delivery of this Agreement nor the effectiveness thereof will (i) violate or conflict with any Applicable Law, (ii) violate any provision of the organizational documents of Lilly or (iii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice, consent or payment under any contract, permit, instrument, or other agreement or arrangement related to the Licensed Technology to which Lilly is a party or by which it is bound or to which any of the Licensed Technology is subject (or result in the imposition of any lien upon any of the Licensed Technology) which would materially affect the performance of Anthera under the Agreement.

By Lilly. Lilly represents and warrants to Anthera that: (a) Exhibit A lists all patent applications Lilly agrees, at Lilly’s cost and patents owned by or licensed expense, to Lilly or defend, indemnify and hold harmless Incyte and its Affiliates as and their respective directors, officers, employees and agents (the “Incyte Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (i) any breach by Lilly of any of its representations, warranties or obligations pursuant to this Agreement; (ii) the Effective Date that cover gross negligence or claim willful misconduct of Lilly; and (iii) the Development, manufacture, Commercialization, use, sale or other disposition by Lilly, its Affiliates or sublicensees of any Licensed Products Compound or the manufacture or use of Licensed Products;Product. (b) Neither Lilly nor In the event of any of its Affiliates has assigned or licensed to such claim against the Incyte Indemnified Parties by any Third Party, Incyte shall promptly notify Lilly in writing of the claim and Lilly shall have the right, exercisable by notice to Incyte within [***] after receipt of notice from Incyte of the claim, to assume direction and control of the defense, litigation, settlement, appeal or other disposition of the claim (including the right to settle the claim solely for monetary consideration) with counsel selected by Lilly and reasonably acceptable to Incyte. The Incyte Indemnified Parties shall cooperate with Lilly and may, at their option and expense, be separately represented in any such action or Affiliates proceeding. Lilly shall not be liable for any patent applications litigation costs or patents listed in Exhibit A. Furtherexpenses incurred by the Incyte Indemnified Parties without Lilly’s prior written authorization. In addition, Lilly has shall not assigned be responsible for the indemnification or licensed to defense of any Third Parties or Affiliates any other patent applications or patents that relate Incyte Indemnified Party to the composition extent arising from any negligent or intentional acts by any Incyte Indemnified Party or the breach by Incyte of matter ofany obligation or warranty under this Agreement, or methods any claims compromised or settled without its prior written consent. Notwithstanding the foregoing, Lilly shall not settle a Third Party claim without the written consent of making Incyte, if such settlement would impose any monetary obligation on Incyte or using any Licensed Products;require Incyte to submit to an injunction. (c) as of Notwithstanding anything to the Effective Datecontrary above, Lilly is not aware in the event of any pending or threatened litigation such claim against Lilly or its Affiliates or licensees (and has not received any communication relating thereto) that alleges that Lilly’s or its Affiliates’ or licensees’ activities with respect to the Licensed Products or the Licensed Technology have infringed or misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any other Person; (d) Lilly owns and Controls the Licensed Patent Rights identified on Exhibit A. (e) Lilly is not aware of any facts or prior art that have lead Lilly to believe that any of the Licensed Patent Rights are or will be invalid or unenforceable; (f) Lilly is not aware of any facts that lead it to believe that exercise of the Licensed Technology will infringe or misappropriate the intellectual property rights of others; (g) Lilly is not aware of any material unauthorized use, infringement, or misappropriation of any of the Licensed Technology Incyte Indemnified Parties by a Third Party; (h) prior to and up through the Effective Dategovernmental or criminal action seeking an injunction against Incyte, Lilly and its Affiliates Incyte shall have not granted any licenses, options, or covenants-not-to-xxx to Third Parties with respect to any of the Licensed Product, and Lilly has the right to grant licenses under control the Licensed Technology as set forth in this Agreement; (i) as defense, litigation, settlement, appeal or other disposition of the Effective Date, there is no interference action, opposition, reissue or reexamination proceeding, or any intellectual property litigation pending before any patent office or court concerning any of the Licensed Patent Rights Controlled by Lilly as of the Effective Dateclaim at Lilly’s expense. (j) Lilly has materially complied at all times with the provisions of the FD&C Act and all applicable laws and regulations, and neither it, its employees, nor any Person that has provided services to Lilly in connection with the Licensed Technology and/or Licensed Products has been debarred under the provisions of such FD&C Act; (i) Lilly has attempted in good faith to provide to Anthera a complete copy of the Regulatory Documents for all Licensed Products to the extent the same are in the possession of Lilly and could be readily located, including all amendments and supplements thereto; and (ii) Lilly has not granted to any Affiliate or Third Party a right to reference any of the Regulatory Documents and has not assigned its interest in any of such Regulatory Documents to an Affiliate or Third Party; (l) Lilly has attempted in good faith to transfer to Anthera all Lilly Licensed Technology in its tangible possession or control, to the extent same are in the possession of Lilly or its Affiliates and could be readily located; (m) To the best of its knowledge, Lilly has disclosed to Anthera agreements and other arrangements that are necessary to be assigned to Anthera in order to permit Anthera to exercise its rights and enforce all of its obligations under this Agreement (as such rights and obligations will be in place after the Effective Date). Lilly has also made known to Anthera other third party agreements relating to contract manufacturing. To the extent Lilly becomes aware of additional such agreements or arrangements (“Additional Agreements”) it will promptly notify Anthera thereof; and (n) Lilly has the full right to grant to Anthera the rights and licenses it purports to grant hereunder. Neither the execution and the delivery of this Agreement nor the effectiveness thereof will (i) violate or conflict with any Applicable Law, (ii) violate any provision of the organizational documents of Lilly or (iii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice, consent or payment under any contract, permit, instrument, or other agreement or arrangement related to the Licensed Technology to which Lilly is a party or by which it is bound or to which any of the Licensed Technology is subject (or result in the imposition of any lien upon any of the Licensed Technology) which would materially affect the performance of Anthera under the Agreement.

By Lilly. Lilly represents and warrants to Anthera that: (a) Exhibit A lists all patent applications and patents owned by or licensed to Lilly or its Affiliates as of the Effective Date that cover or claim any Licensed Products or the manufacture or use of Licensed Products; (b) Neither Lilly nor any of its Affiliates has assigned or licensed to any Third Parties or Affiliates any patent applications or patents listed in Exhibit A. Further, Lilly has not assigned or licensed to any Third Parties or Affiliates any other patent applications or patents that relate to the composition of matter of, or methods of making or using any Licensed Products;; * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission. (c) as of the Effective Date, Lilly is not aware of any pending or threatened litigation against Lilly or its Affiliates or licensees (and has not received any communication relating thereto) that alleges that Lilly’s or its Affiliates’ or licensees’ activities with respect to the Licensed Products or the Licensed Technology have infringed or misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any other Person; (d) Lilly owns and Controls the Licensed Patent Rights identified on Exhibit A. (e) Lilly is not aware of any facts or prior art that have lead Lilly to believe that any of the Licensed Patent Rights are or will be invalid or unenforceable; (f) Lilly is not aware of any facts that lead it to believe that exercise of the Licensed Technology will infringe or misappropriate the intellectual property rights of others; (g) Lilly is not aware of any material unauthorized use, infringement, or misappropriation of any of the Licensed Technology by a Third Party; (h) prior to and up through the Effective Date, Lilly and its Affiliates have not granted any licenses, options, or covenants-not-to-xxx to Third Parties with respect to any of the Licensed Product, and Lilly has the right to grant licenses under the Licensed Technology as set forth in this Agreement; (i) as of the Effective Date, there is no interference action, opposition, reissue or reexamination proceeding, or any intellectual property litigation pending before any patent office or court concerning any of the Licensed Patent Rights Controlled by Lilly as of the Effective Date. (j) Lilly has materially complied at all times with the provisions of the FD&C Act and all applicable laws and regulations, and neither it, its employees, nor any Person that has provided services to Lilly in connection with the Licensed Technology and/or Licensed Products has been debarred under the provisions of such FD&C Act; (i) Lilly has attempted in good faith to provide to Anthera a complete copy of the Regulatory Documents for all Licensed Products to the extent the same are in the possession of Lilly and could be readily located, including all amendments and supplements thereto; and (ii) Lilly has not granted to any Affiliate or Third Party a right to reference any of the Regulatory Documents and has not assigned its interest in any of such Regulatory Documents to an Affiliate or Third Party; (l) Lilly has attempted in good faith to transfer to Anthera all Lilly Licensed Technology in its tangible possession or control, to the extent same are in the possession of Lilly or its Affiliates and could be readily located;; * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission. (m) To the best of its knowledge, Lilly has disclosed to Anthera agreements and other arrangements that are necessary to be assigned to Anthera in order to permit Anthera to exercise its rights and enforce all of its obligations under this Agreement (as such rights and obligations will be in place after the Effective Date). Lilly has also made known to Anthera other third party agreements relating to contract manufacturing. To the extent Lilly becomes aware of additional such agreements or arrangements (“Additional Agreements”) it will promptly notify Anthera thereof; and (n) Lilly has the full right to grant to Anthera the rights and licenses it purports to grant hereunder. Neither the execution and the delivery of this Agreement nor the effectiveness thereof will (i) violate or conflict with any Applicable Law, (ii) violate any provision of the organizational documents of Lilly or (iii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice, consent or payment under any contract, permit, instrument, or other agreement or arrangement related to the Licensed Technology to which Lilly is a party or by which it is bound or to which any of the Licensed Technology is subject (or result in the imposition of any lien upon any of the Licensed Technology) which would materially affect the performance of Anthera under the Agreement.

By Lilly. Lilly represents shall indemnify, defend and warrants hold Anthera and its directors, officers, employees, and Affiliates harmless from and against any and all Damages incurred by each of them (excluding incidental or consequential Damages suffered or incurred by Anthera directly (as opposed to Anthera that:incidental or consequential Damages suffered or incurred by Third Parties who are, in turn, seeking the same from Anthera, which shall be covered by the indemnity set forth herein)) resulting from Claims against such indemnified party based upon: * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission. (a) Exhibit A lists all patent applications and patents owned by or licensed to Lilly or its Affiliates as of the Effective Date that cover or claim any Licensed Products or the manufacture or use of Licensed Products; (b) Neither Lilly nor any of its Affiliates has assigned or licensed to any Third Parties or Affiliates any patent applications or patents listed in Exhibit A. Further, Lilly has not assigned or licensed to any Third Parties or Affiliates any other patent applications or patents that relate to the composition of matter of, or methods of making or using any Licensed Products; (c) as of the Effective Date, Lilly is not aware of any pending or threatened litigation against Lilly or its Affiliates or licensees (and has not received any communication relating thereto) that alleges that Lilly’s or its Affiliates’ or licensees’ activities with respect to the Licensed Products or the Licensed Technology have infringed or misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any other Person; (d) Lilly owns and Controls the Licensed Patent Rights identified on Exhibit A. (e) Lilly is not aware of any facts or prior art that have lead Lilly to believe that any of the Licensed Patent Rights are or will be invalid or unenforceable; (f) Lilly is not aware of any facts that lead it to believe that exercise of the Licensed Technology will infringe or misappropriate the intellectual property rights of others; (g) Lilly is not aware of any material unauthorized use, infringement, or misappropriation a breach of any of the Licensed Technology by a Third Party; (h) prior to and up through the Effective DateLilly’s representations, Lilly and its Affiliates have not granted any licenses, optionswarranties, or covenants-not-to-xxx to Third Parties with respect to any of the Licensed Product, and Lilly has the right to grant licenses under the Licensed Technology as set forth obligations contained in this Agreement; (ib) as except with respect to Product Liability Claims, the negligence, recklessness, or willful misconduct of Lilly, its Affiliates, or the employees or agents of Lilly or its Affiliates; (c) research and development activities with respect to Licensed Technology and Licensed Products occurring prior to the Effective Date, there is no interference actionexcluding, oppositionhowever, reissue any Product Liability Claims arising from the sale or reexamination proceedinguse of Licensed Products sold by Anthera or its Affiliates, sublicensees, or any intellectual property litigation pending before any patent office assignees after the Effective Date, regardless of the theory under which such claims are brought; (d) Lilly’s failure to fulfill its regulatory obligations under the Regulatory Documents prior to the Effective Date, or court concerning any to fulfill its regulatory obligations under the Regulatory Documents after the Effective Date to the extent such Regulatory Documents have not yet been transferred to Anthera; and (e) the practice of the Licensed Patent Rights Controlled Technology by Lilly as of the Effective Date. (j) Lilly has materially complied at all times with the provisions of the FD&C Act and all applicable laws and regulations, and neither it, its employees, nor any Person that has provided services to Lilly in connection with the Licensed Technology and/or Licensed Products has been debarred under the provisions of such FD&C Act; (i) Lilly has attempted in good faith to provide to Anthera a complete copy of the Regulatory Documents for all Licensed Products to the extent the same are in the possession of Lilly and could be readily located, including all amendments and supplements thereto; and (ii) Lilly has not granted to any Affiliate or Third Party a right to reference any of the Regulatory Documents and has not assigned its interest in any of such Regulatory Documents to an Affiliate or Third Party; (l) Lilly has attempted in good faith to transfer to Anthera all Lilly Licensed Technology in its tangible possession or control, to the extent same are in the possession on behalf of Lilly or its Affiliates and could be readily located; (m) To the best of its knowledgeAffiliates, Lilly has disclosed to Anthera agreements and other arrangements that are necessary to be assigned to Anthera in order to permit Anthera to exercise its rights and enforce all of its obligations under this Agreement (as such rights and obligations will be in place sublicensees, or assignees after the Effective Date). Lilly has also made known Lilly’s indemnification obligations under this Section 6.2 shall not apply to Anthera other third party agreements relating to contract manufacturing. To the extent Lilly becomes aware that the applicable Claim arises out of additional such agreements or arrangements (“Additional Agreements”) it will promptly notify Anthera thereof; and (n) Lilly has the full right to grant to Anthera the rights and licenses it purports to grant hereunder. Neither the execution and the delivery of this Agreement nor the effectiveness thereof will results from (i) violate a breach of any of Anthera’s representations, warranties, or conflict with any Applicable Law, obligations contained in this Agreement; or (ii) violate any provision of the organizational documents of Lilly or (iii) conflict withnegligence, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modifyrecklessness, or cancelwillful misconduct of Anthera, its Affiliates, or require any notice, consent the employees or payment under any contract, permit, instrument, or other agreement or arrangement related to the Licensed Technology to which Lilly is a party or by which it is bound or to which any of the Licensed Technology is subject (or result in the imposition of any lien upon any of the Licensed Technology) which would materially affect the performance agents of Anthera under the Agreementor its Affiliates.

By Lilly. Lilly represents and warrants to Anthera that: (a) Exhibit A lists all patent applications Lilly agrees, at Lilly’s cost and patents owned by or licensed expense, to Lilly or defend, indemnify and hold harmless Incyte and its Affiliates as and their respective directors, officers, employees and agents (the “Incyte Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (i) any breach by Lilly of any of its representations, warranties or obligations pursuant to this Agreement; (ii) the Effective Date that cover gross negligence or claim willful misconduct of Lilly; and (iii) the Development, manufacture, Commercialization, use, sale or other disposition by Lilly, its Affiliates or sublicensees of any Licensed Products Compound or the manufacture or use of Licensed Products;Product. (b) Neither Lilly nor In the event of any of its Affiliates has assigned or licensed to such claim against the Incyte Indemnified Parties by any Third Party, Incyte shall promptly notify Lilly in writing of the claim and Lilly shall have the right, exercisable by notice to Incyte within *** after receipt of notice from Incyte of the claim, to assume direction and control of the defense, litigation, settlement, appeal or other disposition of the claim (including the right to settle the claim solely for monetary consideration) with counsel selected by Lilly and reasonably acceptable to Incyte. The Incyte Indemnified Parties shall cooperate with Lilly and may, at their option and expense, be separately represented in any such action or Affiliates proceeding. Lilly shall not be liable for any patent applications litigation costs or patents listed in Exhibit A. Furtherexpenses incurred by the Incyte Indemnified Parties without Lilly’s prior written authorization. In addition, Lilly has shall not assigned be responsible for the indemnification or licensed to defense of any Third Parties or Affiliates any other patent applications or patents that relate Incyte Indemnified Party to the composition extent arising from any negligent or intentional acts by any Incyte Indemnified Party or the breach by Incyte of matter ofany obligation or warranty under this Agreement, or methods any claims compromised or settled without its prior written consent. Notwithstanding the foregoing, Lilly shall not settle a Third Party claim without the written consent of making Incyte, if such settlement would impose any monetary obligation on Incyte or using any Licensed Products;require Incyte to submit to an injunction. (c) as of Notwithstanding anything to the Effective Datecontrary above, Lilly is not aware in the event of any pending or threatened litigation such claim against Lilly or its Affiliates or licensees (and has not received any communication relating thereto) that alleges that Lilly’s or its Affiliates’ or licensees’ activities with respect to the Licensed Products or the Licensed Technology have infringed or misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any other Person; (d) Lilly owns and Controls the Licensed Patent Rights identified on Exhibit A. (e) Lilly is not aware of any facts or prior art that have lead Lilly to believe that any of the Licensed Patent Rights are or will be invalid or unenforceable; (f) Lilly is not aware of any facts that lead it to believe that exercise of the Licensed Technology will infringe or misappropriate the intellectual property rights of others; (g) Lilly is not aware of any material unauthorized use, infringement, or misappropriation of any of the Licensed Technology Incyte Indemnified Parties by a Third Party; (h) prior to and up through the Effective Dategovernmental or criminal action seeking an injunction against Incyte, Lilly and its Affiliates Incyte shall have not granted any licenses, options, or covenants-not-to-xxx to Third Parties with respect to any of the Licensed Product, and Lilly has the right to grant licenses under control the Licensed Technology as set forth in this Agreement; (i) as defense, litigation, settlement, appeal or other disposition of the Effective Date, there is no interference action, opposition, reissue or reexamination proceeding, or any intellectual property litigation pending before any patent office or court concerning any of the Licensed Patent Rights Controlled by Lilly as of the Effective Dateclaim at Lilly’s expense. (j) Lilly has materially complied at all times with the provisions of the FD&C Act and all applicable laws and regulations, and neither it, its employees, nor any Person that has provided services to Lilly in connection with the Licensed Technology and/or Licensed Products has been debarred under the provisions of such FD&C Act; (i) Lilly has attempted in good faith to provide to Anthera a complete copy of the Regulatory Documents for all Licensed Products to the extent the same are in the possession of Lilly and could be readily located, including all amendments and supplements thereto; and (ii) Lilly has not granted to any Affiliate or Third Party a right to reference any of the Regulatory Documents and has not assigned its interest in any of such Regulatory Documents to an Affiliate or Third Party; (l) Lilly has attempted in good faith to transfer to Anthera all Lilly Licensed Technology in its tangible possession or control, to the extent same are in the possession of Lilly or its Affiliates and could be readily located; (m) To the best of its knowledge, Lilly has disclosed to Anthera agreements and other arrangements that are necessary to be assigned to Anthera in order to permit Anthera to exercise its rights and enforce all of its obligations under this Agreement (as such rights and obligations will be in place after the Effective Date). Lilly has also made known to Anthera other third party agreements relating to contract manufacturing. To the extent Lilly becomes aware of additional such agreements or arrangements (“Additional Agreements”) it will promptly notify Anthera thereof; and (n) Lilly has the full right to grant to Anthera the rights and licenses it purports to grant hereunder. Neither the execution and the delivery of this Agreement nor the effectiveness thereof will (i) violate or conflict with any Applicable Law, (ii) violate any provision of the organizational documents of Lilly or (iii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice, consent or payment under any contract, permit, instrument, or other agreement or arrangement related to the Licensed Technology to which Lilly is a party or by which it is bound or to which any of the Licensed Technology is subject (or result in the imposition of any lien upon any of the Licensed Technology) which would materially affect the performance of Anthera under the Agreement.