Common use of Representations and Warranties of BMS Clause in Contracts

Representations and Warranties of BMS. 9.2.1 BMS represents and warrants to Elixir that to the best of its knowledge that as of the Effective Date (i) there is no pending litigation which alleges, or any written communication alleging, that BMS-* or any Licensed Compound or BMS’ activities with respect to the BMS Patent Rights or BMS-* Patent Rights or BMS-* or the Licensed Compounds have infringed or misappropriated any of the intellectual property rights of any Third Party, and BMS has notified Elixir of all Third Party patent rights of which BMS is aware that are related to the foregoing activities, (ii) all fees required to be paid by BMS in order to maintain the BMS Patent Rights have been paid to date, and none of such BMS Patent Rights have been abandoned or cancelled for failure to prosecute or maintain them, (iii) it has not nor has any of its Affiliates previously assigned, transferred, licensed, conveyed or otherwise encumbered any of its, or its Affiliates’, right, title and interest in the BMS Patent Rights or the BMS Know-How, (iv) BMS (and none of its Affiliates) owns all right, title and interest in and to the BMS Patent Rights, (v) there is no technical information or know-how Controlled by an Affiliate of BMS that would * Confidential Treatment Requested qualify as “BMS Know-How” if it were Controlled by BMS instead of an Affiliate of BMS, (vi) Appendix 1 and Appendix 5 set forth all patent rights that are necessary for the manufacture, Development and/or Commercialization of Licensed Compounds and/or Licensed Products, and BMS-*, respectively, that are owned or otherwise Controlled by BMS or its Affiliates as of the Effective Date.

Representations and Warranties of BMS. 9.2.1 BMS represents and warrants to Elixir that to the best of its knowledge that Company that, as of the Effective Date Date: (ia) there is no pending litigation, or litigation that has been threatened in writing, which alleges, or any written communication alleging, that BMS-* or any Licensed Compound or BMS’ activities activities, or its licensees’ activities, with respect to the BMS Patent Rights research, Development or BMS-* Patent Rights or BMS-* or manufacture of the Licensed Compounds Lead Adnectin prior to the Effective Date have infringed or misappropriated misappropriated, or would infringe or misappropriate, any of the intellectual property rights of any Third Party, and BMS has notified Elixir of all (b) no Third Party has challenged in writing the ownership, scope, duration, validity, enforceability, priority or right to use any Adnectin Platform Patent Rights or the BMS Patent Rights listed in Appendix 1b (including, by way of example, through the institution of or written threat of institution of interference, inter partes review, reexamination, protest, opposition, nullity or similar invalidity proceeding before the United States Patent and Trademark Office or any foreign patent rights of which BMS is aware that are related to the foregoing activitiesauthority or court), (iic) all fees required to be paid by BMS in any jurisdiction in order to maintain the BMS Patent Rights have licensed to Company hereunder and listed in Appendix 1b have, to BMS’ Knowledge, been timely paid as of the Effective Date and, to dateBMS’ Knowledge, and none of the claims included in any issued patents included in such BMS Patent Rights have been abandoned or cancelled for failure to prosecute or maintain themare in full force and effect as of the Effective Date, (iiid) it BMS has not nor has any of its Affiliates previously assigned, transferred, licensed, conveyed or otherwise encumbered any of itsconveyed, or granted any license or other rights to its Affiliates’, right, title and interest in the Adnectin Platform Patent Rights, BMS Patent Rights or the BMS Know-How, that in any way that would materially conflict with or materially limit the scope of any of the rights or licenses granted to Company hereunder, (ive) BMS (and none of its Affiliates) owns all BMS’ right, title and interest to all the Adnectin Platform Patent Rights and BMS Patent Rights listed in Appendix 1b are free of any lien or security interest, (f) except for the Adnectin Platform Patent Rights and to the BMS Patent Rights, (v) there is no technical information or know-how Controlled by an Affiliate of BMS that would * Confidential Treatment Requested qualify as “BMS Know-How” if it were Controlled by BMS instead of an Affiliate of BMS, (vi) Appendix 1 and Appendix 5 Rights set forth all patent rights in Appendix 1b, BMS and its Affiliates do not own or control any other Patent Rights that are necessary for the manufactureor, Development and/or Commercialization of Licensed Compounds and/or Licensed Products, and BMS-*, respectively, that are owned or otherwise Controlled by BMS or its Affiliates to BMS’ reasonable belief as of the Effective Date, reasonably useful to carry out the Development of the Lead Adnectin and/or Licensed Products containing the Lead Adnectin as contemplated by the Development Plan attached as Appendix 2 hereto, and (g) subject to Section 3.1.2, to BMS’ Knowledge, the documents, data and information that are included in the BMS Know-How transferred to Company pursuant to Section 3.1 constitute all of the Know-How owned or Controlled by BMS that is reasonably necessary or useful for the Development or manufacture of the Lead Adnectins in accordance with the terms of this Agreement.