WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, BIOGEN IDEC SHALL HAVE NO OBLIGATION TO MAKE ANY
MILESTONE OR ROYALTY PAYMENT TO IMMUNOGEN THAT HAS NOT ACCRUED PRIOR TO THE
EFFECTIVE DATE OF ANY TERMINATION OF THIS AGREEMENT, BUT SHALL REMAIN LIABLE FOR
ALL SUCH PAYMENT OBLIGATIONS ACCRUING PRIOR TO THE EFFECTIVE DATE OF SUCH
TERMINATION.
9.
REPRESENTATIONS AND WARRANTIES
9.1
IMMUNOGEN REPRESENTATIONS.
IMMUNOGEN
REPRESENTS AND WARRANTS TO BIOGEN IDEC THAT:
(A) THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE
BEEN DULY AUTHORIZED BY ALL APPROPRIATE IMMUNOGEN CORPORATE ACTION; (B) THIS
AGREEMENT IS A LEGAL AND VALID OBLIGATION BINDING UPON IMMUNOGEN AND ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS, AND THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT BY THE PARTIES DOES NOT CONFLICT WITH ANY AGREEMENT, INSTRUMENT
OR UNDERSTANDING TO WHICH IMMUNOGEN IS A PARTY OR BY WHICH IT IS BOUND; (C)
IMMUNOGEN HAS THE FULL RIGHT AND LEGAL CAPACITY TO GRANT THE LICENSES AND RIGHTS
TO BIOGEN IDEC PURSUANT TO SECTION 2 ABOVE WITHOUT VIOLATING THE RIGHTS OF ANY
THIRD PARTY OR ANY AGREEMENTS BETWEEN IMMUNOGEN OR ITS AFFILIATES AND ANY THIRD
PARTY; (D) TO IMMUNOGEN'S KNOWLEDGE, NO PATENT RIGHTS WITHIN THE LICENSED PATENT
RIGHTS ARE INVALID OR UNENFORCEABLE AND AS OF THE EFFECTIVE DATE NO PATENTS
WITHIN THE LICENSED PATENT RIGHTS HAVE EXPIRED; (E) TO IMMUNOGEN'S KNOWLEDGE, IT
HAS DISCLOSED TO BIOGEN IDEC ALL FACTS KNOWN TO IMMUNOGEN AS OF THE EFFECTIVE
DATE THAT IMMUNOGEN BELIEVES TO BE MATERIALLY RELEVANT TO THE PATENTABILITY,
VALIDITY AND ENFORCEABILITY OF THE LICENSED PATENT RIGHTS; (F) DURING THE TERM
OF THE AGREEMENT, IMMUNOGEN WILL NOT TAKE ANY ACTION THAT IT REASONABLY BELIEVES
WOULD IN ANY MATERIAL WAY PREVENT IT FROM GRANTING THE RIGHTS GRANTED TO BIOGEN
IDEC UNDER THIS AGREEMENT WITH RESPECT TO LICENSED PATENT RIGHTS OR LICENSED
TECHNOLOGY CONTROLLED BY IMMUNOGEN AFTER THE EFFECTIVE DATE; (G) TO IMMUNOGEN'S
KNOWLEDGE, BUT WITHOUT CONDUCTING ANY INDEPENDENT PATENT SEARCH OF ANY KIND, IT
IS NOT AWARE OF ANY ISSUED PATENTS CLAIMING INVENTIONS RELATING TO LICENSED
TECHNOLOGY OR LICENSED PATENT RIGHTS OWNED OR CONTROLLED BY AN IMMUNOGEN
AFFILIATE OR A THIRD PARTY WHICH WOULD BE INFRINGED BY THE USE OF LICENSED
PATENTS TO MANUFACTURE, SELL, USE OR IMPORT LICENSED PRODUCTS AS CONTEMPLATED BY
THIS
CONFIDENTIAL
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Act of
1934.
49
AGREEMENT, AND AS OF THE EFFECTIVE DATE, IMMUNOGEN IS NOT AWARE OF ANY
INFRINGEMENT BY A THIRD PARTY OF THE LICENSED PATENT RIGHTS; (H) IMMUNOGEN HAS
NOT RECEIVED ANY NOTICE FROM ANY THIRD PARTY CLAIMING THAT PATENTS OWNED OR
CONTROLLED BY SUCH THIRD PARTY ARE BEING INFRINGED BY IT IN THE COURSE OF ITS
CONDUCT IN SUBSTANTIALLY THE SAME ACTIVITIES UNDER LICENSED PATENT RIGHTS AS ARE
CONTEMPLATED IN THE RESEARCH, DEVELOPMENT AND COMMERCIALIZATION OF LICENSED
PRODUCTS UNDER THIS AGREEMENT; AND, (I) EXCEPT AS OTHERWISE DISCLOSED BY