BY BANKRUPTCY, FRAUDULENT CONVEYANCE, INSOLVENCY, REORGANIZATION,
MORATORIUM AND OTHER LAWS RELATING TO OR AFFECTING CREDITORS' RIGHTS GENERALLY
AND BY GENERAL EQUITABLE PRINCIPLES. THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF
VERTEX, ITS OFFICERS AND DIRECTORS.
12.1.2
INTELLECTUAL PROPERTY. THE VERTEX PATENT RIGHTS ARE EXISTING AND, TO
VERTEX'S KNOWLEDGE, THE PATENTS IN VERTEX PATENT RIGHTS ARE NOT INVALID OR
UNENFORCEABLE. VERTEX HAS DISCLOSED TO JANSSEN ALL PATENT APPLICATIONS AND
ISSUED PATENTS COMPRISING THE VERTEX PATENT RIGHTS, AND ALL PROSECUTION HISTORY
RELATING THERETO, WHICH PATENT APPLICATIONS AND ISSUED PATENTS ARE LISTED IN
SCHEDULE 1.116. EXCEPT FOR [***], VERTEX HAS FULL RIGHT AND
Information redacted pursuant to a confidential treatment request.
An
unredacted version of this exhibit has been filed separately with the
Commission.
41
INTEREST IN ALL VERTEX KNOW-HOW AND VERTEX PATENT RIGHTS. VERTEX HAS NOT GRANTED
ANY RIGHT, TITLE OR INTEREST IN OR TO ANY VERTEX KNOW-HOW OR VERTEX PATENT
RIGHTS THAT ARE INCONSISTENT WITH THE RIGHTS, LICENSES AND INTERESTS GRANTED
UNDER THE TERMS OF THIS AGREEMENT.
12.1.3
ENCUMBRANCES. TO VERTEX'S KNOWLEDGE,VERTEX PATENT RIGHTS ARE FREE OF
ANY LIENS, CHARGES AND ENCUMBRANCES.
12.1.4
MITSUBISHI. VERTEX HAS THE RIGHT TO SUBLICENSE TO JANSSEN HEREUNDER
ANY RIGHTS TO KNOW-HOW OR PATENTS THAT IT OBTAINS FROM MITSUBISHI PHARMA
CORPORATION UNDER ITS EXISTING AGREEMENT WITH MITSUBISHI IN CONNECTION WITH
PRODUCTS INCORPORATING VX-950.
12.1.5
GOVERNMENT FUNDING. VERTEX IS NOT 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 PRODUCT.
12.1.6
NO THIRD PARTY PATENTS. TO VERTEX'S KNOWLEDGE, NO THIRD PARTY RIGHT
OR PATENT WOULD NECESSARILY BE INFRINGED BY THE DEVELOPMENT, MANUFACTURE, USE OR
COMMERCIALIZATION OF VX-950 PURSUANT TO THIS AGREEMENT, AND VERTEX IS NOT AWARE
OF ANY PENDING PATENT APPLICATION THAT, IF ISSUED, WOULD NECESSARILY BE
INFRINGED BY THE DEVELOPMENT, MANUFACTURE, USE OR COMMERCIALIZATION OF VX-950
PURSUANT TO THIS AGREEMENT.
12.1.7
NO INTERFERENCE. THE VERTEX PATENT RIGHTS ARE NOT THE SUBJECT OF ANY
INTERFERENCE PROCEEDING KNOWN TO VERTEX, AND VERTEX IS NOT AWARE OF ANY PENDING
OR THREATENED ACTION, SUIT, PROCEEDING OR CLAIM BY A THIRD PARTY CHALLENGING
VERTEX'S OWNERSHIP RIGHTS IN, OR THE VALIDITY OR SCOPE OF, THE VERTEX PATENT
RIGHTS.
12.1.8
[***]
12.1.9
VX-950 PATENTS. SCHEDULE 1.116 CONTAINS A COMPLETE LIST OF ALL
PATENTS AND PATENT APPLICATIONS CONTROLLED BY VERTEX, AS OF THE EFFECTIVE DATE,
THAT [***]
12.1.10
NO DEBARMENT. NEITHER VERTEX NOR ANY OF ITS AFFILIATES HAS BEEN
DEBARRED OR IS SUBJECT TO DEBARMENT. DURING THE TERM OF THE DEVELOPMENT PROGRAM
AND ANY SUPPLY AGREEMENT ADOPTED HEREUNDER, VERTEX AND ITS AFFILIATES WILL USE
COMMERCIALLY REASONABLE EFFORTS TO AVOID USING IN ANY CAPACITY, IN CONNECTION
WITH THE DEVELOPMENT, MANUFACTURE OR COMMERCIALIZATION OF THE PRODUCT CANDIDATE
OR PRODUCT, ANY PERSON WHO TO VERTEX'S KNOWLEDGE HAS BEEN DEBARRED PURSUANT TO
SECTION 306 (OR COMPARABLE LAW OR REGULATION) OF THE UNITED STATES FEDERAL FOOD,
DRUG, AND COSMETIC ACT, OR WHO