Common use of Maxygen’s Covenants Clause in Contracts

Maxygen’s Covenants. Maxygen hereby covenants that: 3.2.1 During the Exclusivity Period, Maxygen shall, and shall cause each of its Affiliates to, make timely payment of all maintenance fees and annuity payments associated with the issued Patent Rights listed on Schedule 3.2.1, and shall notify Bayer if any such Patent Rights become subject to an interference, reissue, re-examination and/or lawsuit and, in such event, shall undertake commercially reasonable efforts to respond to such interference, reissue, re-examination and/or lawsuit taking into account the protection afforded to the Enabling Technology by the then-current patent estate owned and/or controlled by Maxygen and/or its Affiliates as a whole and Maxygen’s obligations to Third Party’s as described in Section 7.1.2(ii). 3.2.2 Maxygen will, and will cause each of its Affiliates to, comply with all of its obligations under the Third Party Agreements and will not terminate or amend any Third Party Agreement in any manner which diminishes the licenses to Bayer or requires any increase in obligations by Bayer hereunder with respect to the Licensed Technology that is subject to such Third Party Agreement without the consent of Bayer. In addition, Maxygen will, and will cause each of its Affiliates to, notify Bayer promptly, if Maxygen and/or any of its Affiliates receives notice, whether or not there is a cure period, from a Third Party that Maxygen and/or any of its Affiliates and/or other licensees is in material breach of any Third Party Agreement, and/or notice from any Third Party which purports to modify and/or terminate any Third Party Agreement in any manner which diminishes the licenses to Bayer hereunder with respect to the Licensed Technology that is subject to such Third Party Agreement. Maxygen will, and will cause each of its Affiliates to, take prompt and commercially reasonable steps to cure any such breach. Maxygen acknowledges that any breach of such Third Party Agreements by Maxygen and/or its Affiliates may result in damage to Bayer with respect to the subject Licensed Technology, which may include loss of license rights to such Licensed Technology and/or monetary damages. Maxygen agrees that Bayer may approach Maxygen’s licensors under the Third Party Agreements listed on Schedule 3.2.2 for the limited purpose of obtaining an agreement from such a licensor that Bayer can continue with its sublicense if the license to Maxygen under the applicable Third Party Agreement is terminated, and Maxygen agrees that it shall facilitate such contact, on Bayer’s request after the Closing Date, and Maxygen will not object to such an agreement provided that such agreement does not diminish and/or adversely affect any license and/or other right of Maxygen and/or any of its Affiliates under such Third Party Agreement and does not impose any cost and/or expense on, or require any increase in the obligations of, Maxygen and/or its Affiliates. 3.2.3 Maxygen shall, and cause each of its Affiliates to, use reasonable efforts to comply with their obligations under Article 6. 3.2.4 During the applicable Exclusivity Period for each Bayer Exclusive Protein, Maxygen and its Affiliates shall not, and shall not license any Third Party to: (i) use the Enabling Technology and/or the Software to conduct Shuffling using genetic materials encoding such Bayer Exclusive Protein (and/or any distinct portion and/or homolog and/or variant thereof) as starting materials, and/or develop, commercialize and/or otherwise exploit any Resulting Product from such Shuffling of a Bayer Exclusive Protein, and/or (ii) use the Enabling Technology and/or the Software to Shuffle any other protein with the purpose of generating and/or creating a protein and/or polypeptide that a reasonable, independent expert knowledgeable and experienced in working with protein pharmaceuticals would primarily consider to be a variant of the Bayer Exclusive Protein or a material portion thereof (rather than as a variant of some other protein or material portion thereof), and/or develop, commercialize and/or otherwise exploit any Resulting Product from Shuffling conducted for such purpose. 3.2.5 During the term of this Agreement, Maxygen will not, and shall cause each of its Affiliates not to, xxx Xxxxx and/or its Affiliate for use (within the scope of the licenses granted to Bayer in Article 2) of the Enabling Technology (substantially as such Enabling Technology was practiced by Maxygen and its Affiliates prior to the Closing Date) under any patents that issue to Maxygen and/or its Affiliates after the Closing Date claiming any Maxygen Improvement directed to the practice of the Enabling Technology per se (but excluding without limitation any patents directed to Program-Specific Technology and/or any specific Resulting Products). 3.2.6 Maxygen shall promptly inform Bayer if Maxygen and/or any of its Affiliates becomes aware of any action, suit, investigation and/or proceeding pending and/or threatened before any arbitrator and/or any Governmental Authority which (1) could reasonably be expected to have a material adverse effect on the ability of Maxygen and/or any of its Affiliates to perform its obligations hereunder and/or (2) in any manner challenges and/or seeks to prevent and/or enjoin the transactions contemplated by this Agreement.

Maxygen’s Covenants. In addition to any Maxygen covenants under the Technology Transfer Agreement, Maxygen hereby covenants that: 3.2.1 During the Exclusivity Period, Maxygen shall, and shall cause each of its Affiliates to, make timely payment of all maintenance fees and annuity payments associated with the issued Patent Rights listed on Schedule 3.2.1, and shall notify Bayer if any such Patent Rights become subject to an interference, reissue, re-examination and/or lawsuit and, in such event, shall undertake commercially reasonable efforts to respond to such interference, reissue, re-examination and/or lawsuit taking into account the protection afforded to the Enabling Technology by the then-current patent estate owned and/or controlled by Maxygen and/or its Affiliates as a whole and Maxygen’s obligations to Third Party’s as described in Section 7.1.2(ii). 3.2.2 that Maxygen will, and will cause each of its Affiliates to, comply with all of its obligations under the Sublicensed Third Party Agreements and will not terminate or amend any Sublicensed Third Party Agreement in any manner which diminishes the licenses rights licensed to Bayer or requires any increase in the obligations by on Bayer hereunder with respect to the Licensed UCOE Technology that is subject to such Sublicensed Third Party Agreement without the consent of Bayer. In addition, Maxygen will, and will cause each of its Affiliates to, notify Bayer promptly, if Maxygen and/or or any of its Affiliates receives notice, whether or not there is a cure period, from a Third Party that Maxygen and/or or any of its Affiliates and/or other licensees is in material breach of any Sublicensed Third Party Agreement, and/or or notice from any Third Party which purports to modify and/or or terminate any Sublicensed Third Party Agreement in any manner which diminishes the licenses rights licensed to Bayer or increases the obligations on Bayer hereunder with respect to the Licensed UCOE Technology that is subject to such Sublicensed Third Party Agreement. Maxygen will, and will cause each of its Affiliates to, take prompt and commercially reasonable steps to cure any such breach. Maxygen acknowledges that any breach of such Third Party Agreements by Maxygen and/or its Affiliates may result in damage to Bayer with respect to the subject Licensed Technology, which may include loss of license rights to such Licensed Technology and/or monetary damages. Maxygen agrees that Bayer may approach Maxygen’s licensors under the Third Party Agreements listed on Schedule 3.2.2 for the limited purpose of obtaining an agreement from such a licensor that Bayer can continue with its sublicense if the license to Maxygen under the applicable Third Party Agreement is terminated, and Maxygen agrees that it shall facilitate such contact, on Bayer’s request after the Closing Date, and Maxygen will not object to such an agreement provided that such agreement does not diminish and/or adversely affect any license and/or other right of Maxygen and/or any of its Affiliates under such Third Party Agreement and does not impose any cost and/or expense on, or require any increase in the obligations of, Maxygen and/or its Affiliates. 3.2.3 Maxygen shall, and cause each of its Affiliates to, use reasonable efforts to comply with their obligations under Article 6. 3.2.4 During the applicable Exclusivity Period for each Bayer Exclusive Protein, Maxygen and its Affiliates shall not, and shall not license any Third Party to: (i) use the Enabling Technology and/or the Software to conduct Shuffling using genetic materials encoding such Bayer Exclusive Protein (and/or any distinct portion and/or homolog and/or variant thereof) as starting materials, and/or develop, commercialize and/or otherwise exploit any Resulting Product from such Shuffling of a Bayer Exclusive Protein, and/or (ii) use the Enabling Technology and/or the Software to Shuffle any other protein with the purpose of generating and/or creating a protein and/or polypeptide that a reasonable, independent expert knowledgeable and experienced in working with protein pharmaceuticals would primarily consider to be a variant of the Bayer Exclusive Protein or a material portion thereof (rather than as a variant of some other protein or material portion thereof), and/or develop, commercialize and/or otherwise exploit any Resulting Product from Shuffling conducted for such purpose. 3.2.5 During the term of this Agreement, Maxygen will not, and shall cause each of its Affiliates not to, xxx Xxxxx and/or its Affiliate for use (within the scope of the licenses granted to Bayer in Article 2) of the Enabling Technology (substantially as such Enabling Technology was practiced by Maxygen and its Affiliates prior to the Closing Date) under any patents that issue to Maxygen and/or its Affiliates after the Closing Date claiming any Maxygen Improvement directed to the practice of the Enabling Technology per se (but excluding without limitation any patents directed to Program-Specific Technology and/or any specific Resulting Products). 3.2.6 Maxygen shall promptly inform Bayer if Maxygen and/or any of its Affiliates becomes aware of any action, suit, investigation and/or proceeding pending and/or threatened before any arbitrator and/or any Governmental Authority which (1) could reasonably be expected to have a material adverse effect on the ability of Maxygen and/or any of its Affiliates to perform its obligations hereunder and/or (2) in any manner challenges and/or seeks to prevent and/or enjoin the transactions contemplated by this Agreement.