Common use of Intellectual Property; Data Privacy Clause in Contracts

Intellectual Property; Data Privacy. (a) Section 3.10(a) of the Athena Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP which Athena or any of its Subsidiaries owns or purports to own (the “Athena Material Registered IP”). The Athena Material Registered IP is subsisting, and to the Knowledge of Athena, none of the Athena Material Registered IP is invalid or unenforceable. (b) The Athena Companies solely and exclusively own all right, title, and interest to and in the material Athena IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Athena Companies have valid rights to use, pursuant to an inbound Athena IP License (or Other IP Licenses), all other material Intellectual Property Rights used by or necessary for the conduct of the 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 3.10(f)). (c) To the Knowledge of Athena, the Athena Companies have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Athena IP. No such trade secret material to Athena as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by the any of the 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) The Athena Companies have executed valid written agreements with each of 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 Athena IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Athena Companies in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Athena (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Athena IP, in each case created or developed for the Athena Companies in the course of such Person’s employment or retention thereby. To the Knowledge of Athena, 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 Athena. No government funding and no facilities of a university, college, other educational institution or research center were used in the development of any material 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 Athena IP. (e) To the Knowledge of Athena, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Athena IP 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 Athena, is threatened in writing by any of the Athena Companies against any other Person. (f) To the Knowledge of Athena, the use and practice of the Athena IP and the conduct of the business of Athena and its Subsidiaries (including the 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 Athena, has since the Applicable Date been threatened in writing against any of the 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 Athena IP. (g) Neither Athena nor any of its Subsidiaries have used Open Source Code in connection with any Software included in the Athena IP developed, licensed, distributed, used or otherwise exploited by any of the Athena Companies in a manner that has resulted or will result in a requirement that any material proprietary source code included in the 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 Athena, (i) the 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 any of the Athena Companies alleging a material violation of, any public-facing privacy policy of any of the 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 any of the 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 Athena or its Subsidiaries (including the Athena Companies) or collected by or on their behalf. Athena (or its Subsidiaries) 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 Athena and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of Athena in all material respects in the event of a disaster or IT Systems outage. (i) This Section 3.10 contains the sole and exclusive representations and warranties of Athena and Merger Sub under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.

Intellectual Property; Data Privacy. (a) Section 3.10(a2.10(a) of the Athena Everest Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP which Athena or any of its Subsidiaries owns or purports to own included in the Newco Owned IP (the “Athena Newco Material Registered IP”). The Athena Newco Material Registered IP is subsisting, and to the Knowledge of AthenaEverest, none of the Athena Newco Material Registered IP is invalid or unenforceable. (b) The Athena Newco Companies solely and exclusively own all right, title, and interest to and in the material Athena Newco Owned IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Athena Newco Companies have valid rights to use, pursuant to an inbound Athena Newco IP License (or under the Intellectual Property Matters Agreement or Other IP Licenses), all other material Intellectual Property Rights used by in or necessary for the conduct of the Athena Companies’ business 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 3.10(f2.10(f)). (c) To the Knowledge of AthenaEverest, Everest and each of its Subsidiaries (including the Athena Companies Newco Companies) have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Athena Newco IP. No such trade secret material to Athena the Newco Business as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by the Everest or any of its Subsidiaries (including the Athena Companies 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) The Athena Companies have Everest (or its applicable Subsidiary) has executed valid written agreements with each of their 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 Athena Newco IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Athena Companies Newco Business in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Athena Everest (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Athena Newco IP, in each case created or developed for Everest (or its applicable Subsidiary, including the Athena Companies Newco Companies) in the course of such Person’s employment or retention thereby. To the Knowledge of AthenaEverest, 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 Athenathe 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 Athena 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 Athena Newco IP. (e) To the Knowledge of AthenaEverest, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Athena 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 AthenaEverest, is threatened in writing by any of Everest or its Subsidiaries (including the Athena Companies Newco Companies) against any other Person. (f) To the Knowledge of AthenaEverest, the use and practice of the Athena Newco IP and the conduct of the business of Athena Newco Business by Everest and its Subsidiaries with respect to the Newco Business (including the Athena 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 AthenaEverest, has since the Applicable Date been threatened in writing against any of Everest or its Subsidiaries (including the Athena Companies 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 Athena Newco IP. (g) Neither Athena 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 Athena Newco IP developed, licensed, distributed, used or otherwise exploited by Everest or any of its Subsidiaries (including the Athena Companies Newco Companies) in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Athena 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 AthenaEverest, (i) Everest and its Subsidiaries (including the Athena Companies 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 any of Everest or its Subsidiaries (including the Athena Companies 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 Athena Companies 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 Athena 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 Athena Everest or its Subsidiaries (including the Athena Newco Companies) or collected by or on their behalfbehalf in connection with the Newco Business. Athena 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 Athena the Newco Business and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of Athena the Newco Business in all material respects in the event of a disaster or IT Systems outage. (i) This Section 3.10 2.10 contains the sole and exclusive representations and warranties of Athena Everest and Merger Sub Newco under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.

Intellectual Property; Data Privacy. (a) Section 3.10(aPart 3.8(a) of the Athena 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 Athena are owned or any purported to be owned by the Company or one of its Subsidiaries owns and included in the 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 purports purported to own be owned, in whole or in part, by the Company (the “Athena Material Owned Company Registered IP”). The Athena Material Registered IP is subsisting, and to the Knowledge of Athena, none knowledge of the Athena 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 Athena 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 Athena IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Athena Companies have valid rights to usepossesses legally enforceable rights, pursuant to an inbound Athena IP License (or Other IP Licenses)valid written agreements, to use all other Table of Contents material Intellectual Property Rights used by or necessary for the conduct of the 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 3.10(f)). (c) To the Knowledge of Athena, the Athena Companies have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Athena IP. No such trade secret material to Athena as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by the any Company and its Subsidiaries, in each case, free and clear of the Athena Companies to any other Person, all Encumbrances other than pursuant to a written non-disclosure agreement (Permitted Encumbrances. The Company or obligations by operation one of law) restricting its Subsidiaries, as the disclosure and use thereof. (d) The Athena Companies have case may be, has executed valid and enforceable written agreements with each of their 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 Athena Company IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets Know-How and confidential information of the Athena Companies Company and its Subsidiaries in confidence both during and after such Person’s employment or retention, as applicable; and (ii) presently assigned to Athena (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 Athena IP, in each case material Intellectual Property Rights created or developed for the Athena Companies Company or its Subsidiaries in the course of such Person’s employment or retention thereby. To the Knowledge knowledge of Athenathe 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 Athena. 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 Athena 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 Athena IPan “Out-bound License”). (e) To the Knowledge of Athena, 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 Athena Company IP in or any material respect since Intellectual Property Rights exclusively licensed to 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 Athenathe Company, is threatened in writing 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 (B) by the 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 Athena Companies against operation of the business of the Company and its Subsidiaries has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any other Intellectual Property Right of another Person. (f) To The Company and its Subsidiaries have taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the Knowledge of Athenasecrecy, the use confidentiality, and practice value of the Athena IP Know-How and other confidential information included in the conduct of Company IP. No trade secret, Know-How, or proprietary information material to the business of Athena the Company and its Subsidiaries (including the Athena Companies, and including prior as presently conducted has been authorized 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 be disclosed or, to the Knowledge knowledge of Athenathe Company, has since been actually disclosed by the Applicable Date been threatened in writing against Company to any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of the Athena Companies by any other Person either (i) involving such Intellectual Property Rights or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Athena IP. (g) Neither Athena nor any of its Subsidiaries have used Open Source Code in connection with any Software included in the Athena IP developed, licensed, distributed, used or otherwise exploited by any of the Athena Companies in a manner that has resulted or will result in a requirement that any material proprietary source code included in the 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 Athena, (i) the 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 any of the Athena Companies alleging a material violation of, any public-facing privacy policy of any of the Athena 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 any of the 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 required under the possession or control of Athena or its Subsidiaries (including the Athena Companies) or collected by or on their behalf. Athena (or its Subsidiaries) 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 Athena and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of Athena in all material respects in the event of a disaster or IT Systems outageapplicable securities laws. (i) This Section 3.10 contains the sole and exclusive representations and warranties of Athena and Merger Sub under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.