Common use of Intellectual Property; Data Privacy Clause in Contracts

Intellectual Property; Data Privacy. (a) Section 2.10(a) of the Everest Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP included in the Newco Owned IP (the “Newco Material Registered IP”). The Newco Material Registered IP is subsisting, and to the Knowledge of Everest, none of the Newco Material Registered IP is invalid or unenforceable. (b) The Newco Companies solely and exclusively own all right, title, and interest to and in the material Newco Owned IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Newco Companies have valid rights to use, pursuant to an inbound Newco IP License (or under the Intellectual Property Matters Agreement or Other IP Licenses), all other material Intellectual Property Rights used in or necessary for the conduct of the Newco Business (provided that the foregoing is not a representation with respect to infringement, misappropriation or other violation of third party Intellectual Property Rights, which is covered under Section 2.10(f)). (c) To the Knowledge of Everest, Everest and each of its Subsidiaries (including the Newco Companies) have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Newco IP. No such trade secret material to the Newco Business as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by Everest or any of its Subsidiaries (including the Newco Companies) to any other Person, other than pursuant to a written non-disclosure agreement (or obligations by operation of law) restricting the disclosure and use thereof. (d) Everest (or its applicable Subsidiary) has executed valid written agreements with each of its former and current employees, consultants and independent contractors (or such Persons have obligations by operation of law) to the extent engaged in the creation or development of any material Newco IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Newco Business in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Everest (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Newco IP, in each case created or developed for Everest (or its applicable Subsidiary, including the Newco Companies) in the course of such Person’s employment or retention thereby. To the Knowledge of Everest, no party thereto is in default, violation or breach of any such agreements, except where such default, violation or breach would not be material to the Newco Business. No government funding and no facilities of a university, college, other educational institution or research center were used in the development of any material Newco IP where, as a result of such funding or the use of such facilities, such government or university entity or organization has any material rights, title or interest in such Newco IP. (e) To the Knowledge of Everest, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Newco IP in connection with the Newco Business in any material respect since the Applicable Date, and, as of the date of this Agreement, no claim or Legal Proceeding involving or alleging any of the foregoing is pending or, to the Knowledge of Everest, is threatened in writing by Everest or its Subsidiaries (including the Newco Companies) against any other Person. (f) To the Knowledge of Everest, the use and practice of the Newco IP and the conduct of the Newco Business by Everest and its Subsidiaries with respect to the Newco Business (including the Newco Companies, and including prior to giving effect to the Contemplated Transactions contemplated by the Distribution Agreement) as conducted since the Applicable Date, have not infringed, misappropriated, or otherwise violated any Intellectual Property Right of any other Person in any material respect, and, as of the date of this Agreement, no claim or Legal Proceeding is pending or, to the Knowledge of Everest, has since the Applicable Date been threatened in writing against Everest or its Subsidiaries (including the Newco Companies) by any other Person either (i) involving or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Newco IP. (g) Neither Everest nor any of its Subsidiaries (with respect to the Newco Business) nor the Newco Companies have used Open Source Code in connection with any Software included in the Newco IP developed, licensed, distributed, used or otherwise exploited by Everest or any of its Subsidiaries (including the Newco Companies) in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Newco IP (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge. (h) To the Knowledge of Everest, (i) Everest and its Subsidiaries (including the Newco Companies) have, at all times since the Applicable Date, materially complied with, and, as of the date of this Agreement, no Person has asserted a written claim against Everest or its Subsidiaries (including the Newco Companies) in connection with the Newco Business alleging a material violation of, any public-facing privacy policy of Everest or any of its Subsidiaries (including the Newco Companies) or applicable Privacy Laws, and (ii) as of the date of this Agreement, there have been no unauthorized intrusions or breaches of the security of Everest’s or any of its Subsidiaries’ (with respect to the Newco Business) or the Newco Companies’ IT Systems resulting in any material data breach, unauthorized access to or disclosure of, or other material misuse or breach of any Personal Data under the possession or control of Everest or its Subsidiaries (including the Newco Companies) or collected by or on their behalf in connection with the Newco Business. Everest (or its Subsidiaries, as applicable to the Newco Business) has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans in all material respects, intended to safeguard the IT Systems of the Newco Business and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of the Newco Business in all material respects in the event of a disaster or IT Systems outage. (i) This Section 2.10 contains the sole and exclusive representations and warranties of Everest and Newco under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.

Intellectual Property; Data Privacy. (a) Section 2.10(a3.10(a) of the Everest Athena Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP included in the Newco Owned IP which Athena or any of its Subsidiaries owns or purports to own (the “Newco Athena Material Registered IP”). The Newco Athena Material Registered IP is subsisting, and to the Knowledge of EverestAthena, none of the Newco Athena Material Registered IP is invalid or unenforceable. (b) The Newco Athena Companies solely and exclusively own all right, title, and interest to and in the material Newco Owned Athena IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Newco Athena Companies have valid rights to use, pursuant to an inbound Newco Athena IP License (or under the Intellectual Property Matters Agreement or Other IP Licenses), all other material Intellectual Property Rights used in by or necessary for the conduct of the Newco Business Athena Companies’ business (provided that the foregoing is not a representation with respect to infringement, misappropriation or other violation of third party Intellectual Property Rights, which is covered under Section 2.10(f3.10(f)). (c) To the Knowledge of EverestAthena, Everest and each of its Subsidiaries (including the Newco Companies) Athena Companies have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Newco Athena IP. No such trade secret material to the Newco Business Athena as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by Everest or the any of its Subsidiaries (including the Newco Companies) Athena Companies to any other Person, other than pursuant to a written non-disclosure agreement (or obligations by operation of law) restricting the disclosure and use thereof. (d) Everest (or its applicable Subsidiary) has The Athena Companies have executed valid written agreements with each of its their former and current employees, consultants and independent contractors (or such Persons have obligations by operation of law) to the extent engaged in the creation or development of any material Newco Athena IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Newco Business Athena Companies in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Everest Athena (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Newco Athena IP, in each case created or developed for Everest (or its applicable Subsidiary, including the Newco Companies) Athena Companies in the course of such Person’s employment or retention thereby. To the Knowledge of EverestAthena, no party thereto is in default, violation or breach of any such agreements, except where such default, violation or breach would not be material to the Newco BusinessAthena. No government funding and no facilities of a university, college, other educational institution or research center were used in the development of any material Newco Athena IP where, as a result of such funding or the use of such facilities, such government or university entity or organization has any material rights, title or interest in such Newco Athena IP. (e) To the Knowledge of EverestAthena, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Newco Athena IP in connection with the Newco Business in any material respect since the Applicable Date, and, as of the date of this Agreement, no claim or Legal Proceeding involving or alleging any of the foregoing is pending or, to the Knowledge of EverestAthena, is threatened in writing by Everest or its Subsidiaries (including any of the Newco Companies) Athena Companies against any other Person. (f) To the Knowledge of EverestAthena, the use and practice of the Newco Athena IP and the conduct of the Newco Business by Everest business of Athena and its Subsidiaries with respect to the Newco Business (including the Newco Athena Companies, and including prior to giving effect to the Contemplated Transactions contemplated by the Distribution Agreement) as conducted since the Applicable Date, have not infringed, misappropriated, or otherwise violated any Intellectual Property Right of any other Person in any material respect, and, as of the date of this Agreement, no claim or Legal Proceeding is pending or, to the Knowledge of EverestAthena, has since the Applicable Date been threatened in writing against Everest or its Subsidiaries (including any of the Newco Companies) Athena Companies by any other Person either (i) involving or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Newco Athena IP. (g) Neither Everest Athena nor any of its Subsidiaries (with respect to the Newco Business) nor the Newco Companies have used Open Source Code in connection with any Software included in the Newco Athena IP developed, licensed, distributed, used or otherwise exploited by Everest or any of its Subsidiaries (including the Newco Companies) Athena Companies in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Newco Athena IP (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge. (h) To the Knowledge of EverestAthena, (i) Everest and its Subsidiaries (including the Newco Companies) Athena Companies have, at all times since the Applicable Date, materially complied with, and, as of the date of this Agreement, no Person has asserted a written claim against Everest or its Subsidiaries (including any of the Newco Companies) in connection with the Newco Business Athena Companies alleging a material violation of, any public-facing privacy policy of Everest or any of its Subsidiaries (including the Newco Companies) Athena Companies or applicable Privacy Laws, and (ii) as of the date of this Agreement, there have been no unauthorized intrusions or breaches of the security of Everest’s or any of its Subsidiaries’ (with respect to the Newco Business) or the Newco Athena Companies’ IT Systems resulting in any material data breach, unauthorized access to or disclosure of, or other material misuse or breach of any Personal Data under the possession or control of Everest Athena or its Subsidiaries (including the Newco Athena Companies) or collected by or on their behalf in connection with the Newco Businessbehalf. Everest Athena (or its Subsidiaries, as applicable to the Newco Business) has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans in all material respects, intended to safeguard the IT Systems of the Newco Business Athena and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of the Newco Business Athena in all material respects in the event of a disaster or IT Systems outage. (i) This Section 2.10 3.10 contains the sole and exclusive representations and warranties of Everest Athena and Newco Merger Sub under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.

Intellectual Property; Data Privacy. (a) Section 2.10(aPart 3.8(a) of the Everest Company Disclosure Letter identifiesSchedule sets forth a complete and correct list, as of the date of this Agreement, of all Company Registered IP, except for those Patents that are licensed by Company to Purchaser under that certain License Agreement by and between the Company and Genzyme Corporation, dated as of November 8, 2017 (“Purchaser Licensed Patents”). Except for the Purchaser Licensed Patents, Part 3.8(a) of the Company Disclosure Schedule identifies (i) the name of the applicant/registrant, (ii) the jurisdiction of application/registration, (iii) the application, Patent or registration number and (iv) any other co-owners, for each material item of Company Registered IP IP. Each of the Patents and Patent applications, which are owned or purported to be owned by the Company or one of its Subsidiaries and included in the Newco Owned Company Registered IP, properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Legal Requirements of the United States of America and, to the knowledge of the Company, the applicable foreign jurisdiction. All Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Newco Material Owned Company Registered IP”). The Newco Material Registered IP is subsisting, and to the Knowledge of Everest, none knowledge of the Newco Material Company, all Company Registered IP exclusively licensed to the Company is subsisting and, to the knowledge of the Company, valid, enforceable, and in full force and effect. With respect to the Owned Company Registered IP other than Purchaser Licensed Patents, all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities, and, to the knowledge of the Company, all other Company Registered IP, all necessary registration, maintenance, renewal and other relevant filing fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States of America or to Company’s knowledge, the applicable foreign jurisdiction, as the case may be, for the purpose of maintaining such Company Registered IP in full force and effect. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than pre-issuance patent prosecution activities being conducted before a Governmental Body in the ordinary course of business) is pending or, to the knowledge of the Company, threatened, in which the use, scope, validity, enforceability or ownership of any Company Registered IP is invalid being or unenforceablehas been contested or challenged. The Company and its Subsidiaries have complied with all Legal Requirements regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Company Registered IP. (b) The Newco Companies solely Company or one of its Subsidiaries, as the case may be, is the sole and exclusively own exclusive owner of all right, titletitle and interest in and to all Company Registered IP owned or purported to be owned by the Company or any of its Subsidiaries and all other Company IP, and interest to and in the material Newco Owned IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Newco Companies have valid rights to usepossesses legally enforceable rights, pursuant to an inbound Newco IP License (or under the Intellectual Property Matters Agreement or Other IP Licenses)valid written agreements, to use all other Table of Contents material Intellectual Property Rights used in by or necessary for the conduct of the Newco Business (provided that the foregoing is not a representation with respect to infringement, misappropriation or other violation of third party Intellectual Property Rights, which is covered under Section 2.10(f)). (c) To the Knowledge of Everest, Everest and each of its Subsidiaries (including the Newco Companies) have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Newco IP. No such trade secret material to the Newco Business business as presently conducted by the Company and presently proposed to be conducted has been authorized to be (its Subsidiaries, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. The Company or has actually been) disclosed by Everest or any one of its Subsidiaries (including Subsidiaries, as the Newco Companies) to any other Personcase may be, other than pursuant to a written non-disclosure agreement (or obligations by operation of law) restricting the disclosure and use thereof. (d) Everest (or its applicable Subsidiary) has executed valid and enforceable written agreements with each of its former and current directors, officers, employees, consultants and independent contractors (who were or such Persons have obligations by operation of law) to the extent are, as applicable, engaged in the creation creating or development of developing any material Newco Company IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets Know-How and confidential information of the Newco Business Company and its Subsidiaries in confidence both during and after such Person’s employment or retention, as applicable; and (ii) presently assigned to Everest (the Company or one of its applicable Subsidiary) Subsidiaries, as applicable, all of such Person’s rights, titles title and interests interest in and to all such Newco IP, in each case material Intellectual Property Rights created or developed for Everest (the Company or its applicable Subsidiary, including the Newco Companies) Subsidiaries in the course of such Person’s employment or retention thereby. To the Knowledge knowledge of Everestthe Company, no party thereto is in default, violation default or breach of any such agreements. (c) No funding, except where such default, violation facilities or breach would not be material to the Newco Business. No government funding and no facilities personnel of a any Governmental Body or any university, college, research institute or other educational institution has been or research center were is being used to create, in whole or in part, any material Company IP (other than as disclosed on Part 3.8(a) of the Company Disclosure Schedule), except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights to such Company IP and does not require or otherwise obligate the Company or its Subsidiaries to grant or offer to any such Governmental Body or educational institution any license or other right to such Company IP (except for use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Company IP (other than pursuant to any In-bound License disclosed on Part 3.8(d) of the Company Disclosure Schedule). No current or former employee, consultant or independent contractor of the Company who contributed to the creation or development of any material Newco Company IP wherehas, to the knowledge of the Company, performed services for a Governmental Body or any university, college, research institute or other educational institution related to the Company’s or its Subsidiaries’ business as presently conducted during a result period of time during which such employee, consultant or independent contractor was also performing services for the Company or its Subsidiaries. (d) Part 3.8(d) of the Company Disclosure Schedule sets forth each agreement pursuant to which the Company or one of its Subsidiaries (i) is granted a license or is assigned, granted, or provided or otherwise receives or is conveyed any right (including a right to receive a license or be free from suit), under any Intellectual Property Right owned by any third party that is used by and material to the Company or its Subsidiaries in its or their business as currently conducted, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings or off-the-shelf software licenses, in each case, with an annual cost of no more than $250,000 and which do not impose restrictions or non-asserts with respect to any Intellectual Property Rights material to and either owned by or exclusively licensed to the Company or any of its Subsidiaries, and (B) any such agreements where the only Intellectual Property Rights granted to the Company or any of its Subsidiaries are non-exclusive rights granted solely for the purpose of enabling Company’s use or exploitation of the services or deliverables provided to Company pursuant to such agreements, (each such agreement covered Table of Contents by subclause (i), an “In-bound License”), or (ii) grants to any third party a license or assigns, grants, or otherwise provides or conveys any right (including a right to receive a license or be free from a suit) under any material Company IP or material Intellectual Property Right licensed to the Company under an In-bound License, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements or services agreements or non-exclusive outbound licenses entered into in the ordinary course of business, in each case, which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the Company or any of Subsidiaries (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such funding agreements), in each case, with an annual cost of no more than $250,000 and which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the use Company or any of its Subsidiaries, or (B) any such agreement granting non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such facilitiesagreements (each such agreement covered by subclause (ii), such government or university entity or organization has any material rights, title or interest in such Newco IPan “Out-bound License”). (e) To the Knowledge of Everest, as knowledge of the date Company: (i) the operation of this Agreementthe business of the Company and its Subsidiaries as currently conducted has not infringed any valid and enforceable Intellectual Property Rights of any Person, or misappropriated or otherwise violated any Intellectual Property Rights owned by any Person, and is not infringing any valid and enforceable Intellectual Property Rights of any Person, or misappropriating or otherwise violating any Intellectual Property Rights owned by any other Person; and (ii) no Person has infringed, misappropriated, or otherwise violated violated, or is infringing, misappropriating or otherwise violating any Newco Company IP in connection with or any Intellectual Property Rights exclusively licensed to the Newco Business in any material respect since the Applicable Date, and, as Company or its Subsidiaries. As of the date of this Agreement, no claim or Legal Proceeding involving or alleging any of the foregoing is pending (or, to the Knowledge knowledge of Everestthe Company, is threatened in writing by Everest threatened) (A) against the Company or its Subsidiaries alleging that the operation of the businesses of the Company and its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (including B) by the Newco Companies) against Company or its Subsidiaries that another Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. Since January 1, 2014 and, to the knowledge of the Company, prior to such date, neither the Company nor any of its Subsidiaries has received any written notice or other written communication alleging that the operation of the business of the Company and its Subsidiaries has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Intellectual Property Right of another Person. (f) To the Knowledge of Everest, the use and practice of the Newco IP and the conduct of the Newco Business by Everest The Company and its Subsidiaries with respect have taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality, and value of the Know-How and other confidential information included in the Company IP. No trade secret, Know-How, or proprietary information material to the Newco Business (including the Newco Companies, and including prior to giving effect to the Contemplated Transactions contemplated by the Distribution Agreement) as conducted since the Applicable Date, have not infringed, misappropriated, or otherwise violated any Intellectual Property Right of any other Person in any material respect, and, as business of the date of this Agreement, no claim or Legal Proceeding is pending Company and its Subsidiaries as presently conducted has been authorized to be disclosed or, to the Knowledge knowledge of Everestthe Company, has since been actually disclosed by the Applicable Date been threatened in writing against Everest Company to any Person other than pursuant to a non-disclosure agreement or its Subsidiaries (including other agreement adequately restricting the Newco Companies) by any other Person either (i) involving disclosure and use of such Intellectual Property Rights or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Newco IP. (g) Neither Everest nor any of its Subsidiaries (with respect to the Newco Business) nor the Newco Companies have used Open Source Code in connection with any Software included in the Newco IP developed, licensed, distributed, used or otherwise exploited by Everest or any of its Subsidiaries (including the Newco Companies) in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Newco IP (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge. (h) To the Knowledge of Everest, (i) Everest and its Subsidiaries (including the Newco Companies) have, at all times since the Applicable Date, materially complied with, and, as of the date of this Agreement, no Person has asserted a written claim against Everest or its Subsidiaries (including the Newco Companies) in connection with the Newco Business alleging a material violation of, any public-facing privacy policy of Everest or any of its Subsidiaries (including the Newco Companies) or applicable Privacy Lawsinformation, and (ii) excluding any know-how or proprietary information disclosed by the Company in publications or public filings, including as of the date of this Agreement, there have been no unauthorized intrusions or breaches of the security of Everest’s or any of its Subsidiaries’ (with respect to the Newco Business) or the Newco Companies’ IT Systems resulting in any material data breach, unauthorized access to or disclosure of, or other material misuse or breach of any Personal Data required under the possession or control of Everest or its Subsidiaries (including the Newco Companies) or collected by or on their behalf in connection with the Newco Business. Everest (or its Subsidiaries, as applicable to the Newco Business) has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans in all material respects, intended to safeguard the IT Systems of the Newco Business and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of the Newco Business in all material respects in the event of a disaster or IT Systems outagesecurities laws. (i) This Section 2.10 contains the sole and exclusive representations and warranties of Everest and Newco under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.