AUTHORITIES AND OTHER PERSONS REQUIRED TO BE OBTAINED BY SUCH PARTY
IN CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
HAVE BEEN AND SHALL BE OBTAINED.
10.2
NO CONFLICT.
EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY
THAT THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF SUCH
PARTY'S OBLIGATIONS HEREUNDER (A) DO NOT CONFLICT WITH OR VIOLATE SUCH PARTY'S
CORPORATE CHARTER AND BYLAWS OR ANY REQUIREMENT OF APPLICABLE LAWS AND (B) DO
NOT AND SHALL NOT CONFLICT WITH, VIOLATE OR BREACH OR CONSTITUTE A DEFAULT OR
REQUIRE ANY CONSENT UNDER, ANY MATERIAL ORAL OR WRITTEN CONTRACTUAL OBLIGATION
OF SUCH PARTY.
EACH PARTY AGREES THAT IT SHALL NOT DURING THE TERM OF THIS
AGREEMENT GRANT ANY RIGHT, LICENSE, CONSENT OR PRIVILEGE TO ANY THIRD PARTY OR
OTHERWISE UNDERTAKE ANY ACTION, EITHER DIRECTLY OR INDIRECTLY, THAT WOULD
CONFLICT WITH THE RIGHTS GRANTED TO THE OTHER PARTY OR INTERFERE WITH ANY
OBLIGATIONS OF SUCH PARTY SET FORTH IN THIS AGREEMENT.
10.3
ADDITIONAL INCYTE REPRESENTATIONS AND WARRANTIES.
INCYTE
REPRESENTS AND WARRANTS THAT, AS OF THE EFFECTIVE DATE, EXCEPT AS PREVIOUSLY
DISCLOSED TO LILLY:
(A)
NEITHER IT NOR ANY OF ITS AFFILIATES HAS RECEIVED WRITTEN NOTICE
OF ANY CLAIM OR LITIGATION WHICH ALLEGES ANY INTELLECTUAL PROPERTY RIGHTS OF A
THIRD PARTY ARE INFRINGED BY A LICENSED COMPOUND OR THE DEVELOPMENT OR
COMMERCIALIZATION OF ANY LICENSED COMPOUND; TO THE KNOWLEDGE OF INCYTE AND ITS
AFFILIATES, NONE OF INCYTE OR ANY OF ITS AFFILIATES HAS IN THE PAST INFRINGED OR
IS CURRENTLY INFRINGING ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS THROUGH
ACTIVITIES RELATED TO THE LICENSED COMPOUNDS;
(B)
THERE ARE NO CLAIMS, JUDGMENTS OR SETTLEMENTS AGAINST OR OWED BY
INCYTE OR ANY OF ITS AFFILIATES, NOR, TO THE KNOWLEDGE OF INCYTE OR ANY OF ITS
AFFILIATES, ANY PENDING REISSUE, REEXAMINATION, INTERFERENCE, OPPOSITION OR
SIMILAR PROCEEDINGS, WITH RESPECT TO ANY LICENSED COMPOUNDS OR INCYTE IP, AND
INCYTE HAS NOT RECEIVED WRITTEN NOTICE OF ANY THREATENED CLAIMS OR LITIGATION OR
ANY REISSUE, REEXAMINATION, INTERFERENCE, OPPOSITION OR SIMILAR PROCEEDINGS
SEEKING TO INVALIDATE OR OTHERWISE CHALLENGE ANY INCYTE IP;
(C)
TO THE KNOWLEDGE OF INCYTE AND ITS AFFILIATES, NO THIRD PARTY IS
INFRINGING ANY INCYTE PATENT RIGHTS;
(D)
(I) INCYTE IS THE LEGAL AND BENEFICIAL OWNER OR HAS THE RIGHT TO
GRANT TO LILLY THE RIGHTS GRANTED HEREIN, TO ALL INCYTE IP; (II) NO THIRD PARTY
HAS ANY RIGHT, INTEREST OR CLAIM IN OR TO SUCH RIGHTS THAT WOULD LIMIT THE
RIGHTS GRANTED TO LILLY UNDER THIS AGREEMENT; AND (III) ALL ASSIGNMENTS TO
INCYTE OF INVENTORSHIP RIGHTS RELATING TO THE INCYTE PATENT RIGHTS CONTROLLED BY
INCYTE ARE VALID AND ENFORCEABLE;
(E)
ALL FEES DUE TO DATE THAT ARE REQUIRED TO MAINTAIN THE INCYTE IP
HAVE BEEN PAID IN FULL AND TO INCYTE'S KNOWLEDGE, THE INCYTE IP IS VALID AND
ENFORCEABLE;
47
*** Confidential material redacted and filed separately with the Commission.
(F)
INCYTE HAS NOT GRANTED AND SHALL NOT GRANT ANY THIRD PARTY RIGHTS
THAT ARE OR WOULD BE INCONSISTENT WITH LILLY'S RIGHTS HEREUNDER AND