HAVE IN THE FOVEA-ASSIGNED INTELLECTUAL PROPERTY,
INCLUDING WITHOUT LIMITATION, THE PATENT RIGHTS LISTED ON EXHIBIT C-2 (THE
"FOVEA-ASSIGNED PATENT RIGHTS"), TO DYAX, IN EACH CASE FREE AND CLEAR OF ALL
LIENS, CHARGES AND ENCUMBRANCES, AND IS NOT AWARE OF ANY CLAIM MADE AGAINST IT
ASSERTING THE INVALIDITY, MISUSE, UNREGISTERABILITY, UNENFORCEABILITY OR
NON-INFRINGEMENT OF ANY OF SUCH FOVEA-ASSIGNED INTELLECTUAL PROPERTY OR
CHALLENGING FOVEA'S SOLE CONTROL OF SUCH FOVEA-ASSIGNED INTELLECTUAL PROPERTY,
OR THE
* Confidential Treatment Requested.
Omitted portions filed with the Commission.
44
ASSIGNMENT TO DYAX OF SUCH FOVEA-ASSIGNED INTELLECTUAL PROPERTY, OR MAKING ANY
ADVERSE CLAIM OF OWNERSHIP OR MISAPPROPRIATION THEREOF.
(B)
NEITHER FOVEA NOR ANY OF ITS AFFILIATES IS
OR HAS BEEN A PARTY TO ANY AGREEMENT WITH THE U.S. FEDERAL GOVERNMENT OR AN
AGENCY THEREOF PURSUANT TO WHICH THE U.S. FEDERAL GOVERNMENT OR SUCH AGENCY
PROVIDED FUNDING FOR THE DEVELOPMENT OF THE COMPOUND OR THE PRODUCT.
(C)
TO THE BEST OF FOVEA'S KNOWLEDGE, THE
DEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION OF THE COMPOUND AS CONDUCTED BY
FOVEA ON OR PRIOR TO THE EFFECTIVE DATE DID NOT INFRINGE, INTERFERE WITH OR
RESULT IN THE MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY EXISTING AS OF THE EFFECTIVE DATE.
(D)
NO CLAIM OF INFRINGEMENT OF THE PATENT
RIGHTS OF ANY THIRD PARTY HAS BEEN MADE, NOR TO FOVEA'S KNOWLEDGE THREATENED,
AGAINST FOVEA OR ANY OF ITS AFFILIATES WITH RESPECT TO THE DEVELOPMENT,
MANUFACTURE OR COMMERCIALIZATION OF THE COMPOUND OR THE PRODUCT, AND THERE ARE
NO OTHER CLAIMS, JUDGMENTS OR SETTLEMENTS AGAINST OR OWED BY FOVEA OR ANY OF ITS
AFFILIATES OR TO WHICH FOVEA OR ANY OF ITS AFFILIATES IS A PARTY OR, TO THE BEST
OF FOVEA'S KNOWLEDGE, PENDING OR THREATENED CLAIMS OR LITIGATION, IN EITHER CASE
RELATING TO THE COMPOUND OR PRODUCT.
(E)
FOVEA HAS MADE AVAILABLE TO DYAX ALL
INFORMATION IN ITS CONTROL RELATING TO THE COMPOUND AND THE DEVELOPMENT,
MANUFACTURE AND COMMERCIALIZATION OF THE COMPOUND AS CONDUCTED BY FOVEA TO DATE.
(F)
ALL OF THE STUDIES, TESTS AND
PRE-CLINICAL AND CLINICAL TRIALS OF THE COMPOUND CONDUCTED PRIOR TO, OR BEING
CONDUCTED AS OF, THE EFFECTIVE DATE BY FOVEA HAVE BEEN AND ARE BEING CONDUCTED
IN ACCORDANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS.
(G)
THERE ARE NO AGREEMENTS BETWEEN FOVEA AND
ANY THIRD PARTY THAT IMPOSE AN OBLIGATION TO PAY ROYALTIES TO A THIRD PARTY
BASED ON SALES OF THE PRODUCT.
SECTION 10.9
NO WARRANTIES.
EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS
ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY, AND
EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE COMPOUND AND
THE PRODUCT.
EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT
THE DEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION OF THE PRODUCT PURSUANT TO
THIS AGREEMENT WILL BE SUCCESSFUL.
SECTION 10.10
INDEMNIFICATION.
(A)
BY FOVEA. FOVEA WILL DEFEND, INDEMNIFY AND
HOLD HARMLESS DYAX, ITS RELATED PARTIES, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS