Common use of HYSEQ Representations and Warranties Clause in Contracts

HYSEQ Representations and Warranties. As of the Effective date and during the Term (unless expressly stated in this Section 7.1), HYSEQ hereby represents and warrants the following to DELTAGEN: 7.1.1 HYSEQ is (i) a company duly organized, validly existing, and in good standing under the laws of Nevada with its respective principal place of business as indicated in the first paragraph of this Agreement; (ii) duly qualified as a corporation and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, where the failure to be so qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; (iii) has the requisite corporate power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted; (iv) has all necessary licenses, permits, consents, or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for such ownership and operation; and (v) is in compliance with its certificate of incorporation and by-laws. 7.1.2 The execution, delivery and performance of this Agreement by HYSEQ and all documents to be delivered by HYSEQ hereunder: (i) are within the corporate power of HYSEQ; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of the certificate of incorporation or by-laws of HYSEQ; (iv) will not violate any law or regulation or any order or decree of any court of governmental CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which HYSEQ is a party or by which HYSEQ or any of its property is bound; and (vi) do not require any filing or registration with or the consent or approval of, any governmental body, agency, authority or any other Person, which has not been made or obtained previously. 7.1.3 This Agreement has been duly executed and delivered by HYSEQ and constitutes a legal, valid and binding obligation of both HYSEQ, enforceable against both and either of HYSEQ in accordance with its terms. 7.1.4 Except as expressly provided on Exhibit D, (which may be modified in accordance with the terms and conditions of this Agreement for a particular Submitted Gene up until the time that information is submitted for a Proposed Gene under Section 4.1.3), HYSEQ is the sole and exclusive owner of the entire right, title and interest in and to the HYSEQ Patents and the HYSEQ Know-How, free and clear of any liens or other encumbrances, and no other Person (including any government or university) has any license, claim or other right or interest in or to any HYSEQ Patents or the HYSEQ Know-How. The HYSEQ Patents and the HYSEQ Know-How may be co-exclusively licensed to DELTAGEN hereunder, and as contemplated under Article 6 under a separate agreement to commercialize Secreted Protein Candidate and/or Products, without payment of any royalty, fee or incurring any other obligation to any other Person (including any government or university). 7.1.5 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, all information relevant to [***]. 7.1.6 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, [***]. 7.1.7 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, all information regarding whether [***] covered by any HYSEQ Patents or which utilizes any HYSEQ Know-How or any Proposed Gene (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), Project Gene, Secreted Protein or Derivative [***]. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 7.1.8 HYSEQ is not aware of any infringement of the HYSEQ Patents, or any misappropriation of the HYSEQ Know-How by any Third Party. 7.1.9 Except as provided in the information under Section 4.1.3 submitted for a Proposed Gene pursuant to this Agreement, all of the research and development work performed in connection with any of the HYSEQ Know-How or any Submitted Gene, Proposed Genes (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), or Project Genes prior to the Effective Date was [***] and was performed in accordance with applicable law and in compliance with all applicable regulatory requirements, and all such rights have been properly assigned to HYSEQ including any and all rights of any consultants of HYSEQ. 7.1.10 HYSEQ follows reasonable commercial practices common in the industry to protect its proprietary and confidential information, including requiring its , consultants and agents to be bound in writing by obligations of confidentiality and non-disclosure, and requiring its employees to assign to it any and all inventions and discoveries discovered by such employees made within the scope of, and during their employment, and only disclosing proprietary and confidential information to Third Parties pursuant to written confidentiality and non-disclosure agreements. 7.1.11 HYSEQ has not, up through and including the Effective Date, [***] concerning the activities contemplated by this Agreement which would be [***] with such information [***] during the Term of this Agreement.

HYSEQ Representations and Warranties. As of the Effective date and during the Term (unless expressly stated in this Section 7.1), HYSEQ hereby represents and warrants the following to DELTAGEN: 7.1.1 HYSEQ is (i) a company duly organized, validly existing, and in good standing under the laws of Nevada with its respective principal place of business as indicated in the first paragraph of this Agreement; (ii) duly qualified as a corporation and in good standing CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, where the failure to be so qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; (iii) has the requisite corporate power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted; (iv) has all necessary licenses, permits, consents, or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for such ownership and operation; and (v) is in compliance with its certificate of incorporation and by-laws. 7.1.2 The execution, delivery and performance of this Agreement by HYSEQ and all documents to be delivered by HYSEQ hereunder: (i) are within the corporate power of HYSEQ; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of the certificate of incorporation or by-laws of HYSEQ; (iv) will not violate any law or regulation or any order or decree of any court of governmental CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which HYSEQ is a party or by which HYSEQ or any of its property is bound; and (vi) do not require any filing or registration with or the consent or approval of, any governmental body, agency, authority or any other Person, which has not been made or obtained previously. 7.1.3 This Agreement has been duly executed and delivered by HYSEQ and constitutes a legal, valid and binding obligation of both HYSEQ, enforceable against both and either of HYSEQ in accordance with its terms. 7.1.4 Except as expressly provided on Exhibit D, (which may be modified in accordance with the terms and conditions of this Agreement for a particular Submitted Gene up until the time that information is submitted for a Proposed Gene under Section 4.1.3), HYSEQ is the sole and exclusive owner of the entire right, title and interest in and to the HYSEQ Patents and the HYSEQ Know-How, free and clear of any liens or other encumbrances, and no other Person (including any government or university) has any license, claim or other right or interest in or to any HYSEQ Patents or the HYSEQ Know-How. The HYSEQ Patents and the HYSEQ Know-How may be co-exclusively licensed to DELTAGEN hereunder, and as contemplated CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. under Article 6 under a separate agreement to commercialize Secreted Protein Candidate and/or Products, without payment of any royalty, fee or incurring any other obligation to any other Person (including any government or university). 7.1.5 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, all information relevant to [***]. 7.1.6 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, [***]. 7.1.7 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's actual knowledge, all information regarding whether [***] covered by any HYSEQ Patents or which utilizes any HYSEQ Know-How or any Proposed Gene (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), Project Gene, Secreted Protein or Derivative [***]. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 7.1.8 HYSEQ is not aware of any infringement of the HYSEQ Patents, or any misappropriation of the HYSEQ Know-How by any Third Party[***]. 7.1.9 Except as provided in the information under Section 4.1.3 submitted for a Proposed Gene pursuant to this Agreement, all of the research and development work performed in connection with any of the HYSEQ Know-How or any Submitted Gene, Proposed Genes (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), or Project Genes prior to the Effective Date was [***] and was performed in accordance with applicable law and in compliance with all applicable regulatory requirements, and all such rights have been properly assigned to HYSEQ including any and all rights of any consultants of HYSEQ. 7.1.10 HYSEQ follows reasonable commercial practices common in the industry [***] to protect its proprietary and confidential information, including requiring its , consultants and agents to be bound in writing by obligations of confidentiality and non-disclosure, and requiring its employees to assign to it any and all inventions and discoveries discovered by such employees made within the scope of, and during their employment, and only disclosing proprietary and confidential information to Third Parties pursuant to written confidentiality and non-disclosure agreements. 7.1.11 HYSEQ has not, up through and including the Effective Date, [***] concerning the activities contemplated by this Agreement which would be [***] with such information [***] during the Term of this Agreement].

HYSEQ Representations and Warranties. As of the Effective date and during the Term (unless expressly stated in this Section 7.1), HYSEQ hereby represents and warrants the following to DELTAGEN: 7.1.1 HYSEQ is (i) a company duly organized, validly existing, and in good standing under the laws of Nevada with its respective principal place of business as indicated in the first paragraph of this Agreement; (ii) duly qualified as a corporation and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, where the failure to be so qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; (iii) has the requisite corporate power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted; (iv) has all necessary licenses, permits, consents, or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for such ownership and operation; and (v) is in compliance with its certificate of incorporation and by-laws. 7.1.2 The execution, delivery and performance of this Agreement by HYSEQ and all documents to be delivered by HYSEQ hereunder: (i) are within the corporate power of HYSEQ; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of the certificate of incorporation or by-laws of HYSEQ; (iv) will not violate any law or regulation or any order or decree of any court of governmental CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which HYSEQ is a party or by which HYSEQ or any of its property is bound; and (vi) do not require any filing or registration with or the consent or approval of, any governmental body, agency, authority or any other Person, which has not been made or obtained previously. 7.1.3 This Agreement has been duly executed and delivered by HYSEQ and constitutes a legal, valid and binding obligation of both HYSEQ, enforceable against both and either of HYSEQ in accordance with its terms. 7.1.4 Except as expressly provided on Exhibit D, (which may be modified in accordance with the terms and conditions of this Agreement for a particular Submitted Gene up until the time that information is submitted for a Proposed Gene under Section 4.1.3), HYSEQ is the sole and exclusive owner of the entire right, title and interest in and to the HYSEQ Patents and the HYSEQ Know-How, free and clear of any liens or other encumbrances, and no other Person (including any government or university) has any license, claim or other right or interest in or to any HYSEQ Patents or the HYSEQ Know-How. The HYSEQ Patents and the HYSEQ Know-How may be co-exclusively licensed to DELTAGEN hereunder, and as contemplated under Article 6 under a separate agreement to commercialize Secreted Protein Candidate and/or Products, without payment of any royalty, fee or incurring any other obligation to any other Person (including any government or university). 7.1.5 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, all information relevant to [***]. 7.1.6 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, [***]. 7.1.7 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, all information regarding whether [***] covered by any HYSEQ Patents or which utilizes any HYSEQ Know-How or any Proposed Gene (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), Project Gene, Secreted Protein or Derivative [***]. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 7.1.8 HYSEQ is not aware of any infringement of the HYSEQ Patents, or any misappropriation of the HYSEQ Know-How by any Third Party. 7.1.9 Except as provided in the information under Section 4.1.3 submitted for a Proposed Gene pursuant to this Agreement, all of the research and development work performed in connection with any of the HYSEQ Know-How or any Submitted Gene, Proposed Genes (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), or Project Genes prior to the Effective Date was [***] and was performed in accordance with applicable law and in compliance with all applicable regulatory requirements, and all such rights have been properly assigned to HYSEQ including any and all rights of any consultants of HYSEQ. 7.1.10 HYSEQ follows reasonable commercial practices common in the industry to protect its proprietary and confidential information, including requiring its , consultants and agents to be bound in writing by obligations of confidentiality and non-disclosure, and requiring its employees to assign to it any and all inventions and discoveries discovered by such employees made within the scope of, and during their employment, and only disclosing proprietary and confidential information to Third Parties pursuant to written confidentiality and non-disclosure agreements. 7.1.11 HYSEQ has not, up through and including the Effective Date, [***] concerning the activities contemplated by this Agreement which would be [***] with such information [***] during the Term of this Agreement.

HYSEQ Representations and Warranties. As of the Effective date and during the Term (unless expressly stated in this Section 7.1), HYSEQ hereby represents and warrants the following to DELTAGEN: 7.1.1 HYSEQ is (i) a company duly organized, validly existing, and in good standing under the laws of Nevada with its respective principal place of business as indicated in the first paragraph of this Agreement; (ii) duly qualified as a corporation and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its * Confidential portions of this document have been redacted and have been filed separately with the Commission. business requires such qualification, where the failure to be so qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder; (iii) has the requisite corporate power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted; (iv) has all necessary licenses, permits, consents, or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for such ownership and operation; and (v) is in compliance with its certificate of incorporation and by-laws. 7.1.2 The execution, delivery and performance of this Agreement by HYSEQ and all documents to be delivered by HYSEQ hereunder: (i) are within the corporate power of HYSEQ; (ii) have been duly authorized by all necessary or proper corporate action; (iii) are not in contravention of any provision of the certificate of incorporation or by-laws of HYSEQ; (iv) will not violate any law or regulation or any order or decree of any court of governmental CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. instrumentality; (v) will not violate the terms of any indenture, mortgage, deed of trust, lease, agreement, or other instrument to which HYSEQ is a party or by which HYSEQ or any of its property is bound; and (vi) do not require any filing or registration with or the consent or approval of, any governmental body, agency, authority or any other Person, which has not been made or obtained previously. 7.1.3 This Agreement has been duly executed and delivered by HYSEQ and constitutes a legal, valid and binding obligation of both HYSEQ, enforceable against both and either of HYSEQ in accordance with its terms. 7.1.4 Except as expressly provided on Exhibit D, (which may be modified in accordance with the terms and conditions of this Agreement for a particular Submitted Gene up until the time that information is submitted for a Proposed Gene under Section 4.1.3), HYSEQ is the sole and exclusive owner of the entire right, title and interest in and to the HYSEQ Patents and the HYSEQ Know-How, free and clear of any liens or other encumbrances, and no other Person (including any government or university) has any license, claim or other right or interest in or to any HYSEQ Patents or the HYSEQ Know-How. The HYSEQ Patents and the HYSEQ Know-How may be co-exclusively licensed to DELTAGEN hereunder, and as contemplated under Article 6 under a separate agreement to commercialize Secreted Protein Candidate and/or Products, without payment of any royalty, fee or incurring any other obligation to any other Person (including any government or university). 7.1.5 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, all information relevant to [***[ * ]. 7.1.6 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, [***[ * ]. 7.1.7 HYSEQ has disclosed or made available to DELTAGEN, to the extent of HYSEQ's ’s actual knowledge, all information regarding whether [***] covered by any HYSEQ Patents or which utilizes any HYSEQ Know-How or any Proposed Gene (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), Project Gene, Secreted Protein or Derivative [***[ * ]. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 7.1.8 HYSEQ is not aware of any infringement of the HYSEQ Patents, or any misappropriation of the HYSEQ Know-How by any Third Party[ * ]. 7.1.9 Except as provided in the information under Section 4.1.3 submitted for a Proposed Gene pursuant to this Agreement, all of the research and development work performed in connection with any of the HYSEQ Know-How or any Submitted Gene, Proposed Genes (subject to any disclosures made by HYSEQ in writing pursuant to Section 4.1.3 with respect to any such Proposed Gene), or Project Genes prior to the Effective Date was [***] [ * ], and was performed in accordance with applicable law and in compliance with all applicable regulatory requirements, and all such rights have been properly assigned to HYSEQ including any and all rights of any consultants of HYSEQ. 7.1.10 HYSEQ follows reasonable commercial practices common in the industry [ * ] to protect its proprietary and confidential information, including requiring its its, consultants and agents to be bound in writing by obligations of confidentiality and non-disclosure, and requiring its employees to assign to it any and all inventions and discoveries discovered by such employees made within the scope of, and during their employment, and only disclosing proprietary and confidential information to Third Parties pursuant to written confidentiality and non-disclosure agreements. * Confidential portions of this document have been redacted and have been filed separately with the Commission. 7.1.11 HYSEQ has not, up through and including the Effective Date, [***] concerning the activities contemplated by this Agreement which would be [***] with such information [***] during the Term of this Agreement[ * ].