Intellectual Property; Privacy. (a) Section 3.12(a) of the Parent Disclosure Schedule identifies each item of material Registered IP owned in whole or in part by the Parent or its Subsidiaries, including, with respect to each application and registration: (i) the name of the applicant or registrant and any other co-owners, (ii) the jurisdiction of application or registration, and (iii) the application or registration number. To the Knowledge of Parent, each of the U.S. patents and patent applications included in Section 3.12(a) of the Parent Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United States. As of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, to the Knowledge of Parent, threatened in writing, in which the scope, validity, enforceability or ownership of any Parent IP is being or has been contested or challenged. To the Knowledge of Parent, each item of Parent IP is valid and enforceable, and with respect to the Parent’s material Registered IP, subsisting. (b) Except as set forth in Section 3.12(b) of the Parent Disclosure Schedule, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the Registered IP owned in whole or in part by Parent or any of its Subsidiaries. (c) Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule, and as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or its Subsidiaries exclusively own, are the sole assignee of, or have exclusively licensed all of material Parent IP, free and clear of all Encumbrances other than Permitted Encumbrances. The Parent IP and the Intellectual Property Rights licensed to Parent pursuant to a valid, enforceable written agreement constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of Parent’s and any of its Subsidiaries’ business as currently conducted. Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule each Parent Associate involved in the creation or development of any material Parent IP, pursuant to such Parent Associate’s activities on behalf of Parent or any of its Subsidiaries, has signed a valid and enforceable written agreement containing an assignment of such Parent Associate’s rights in such Parent IP to Parent or its Subsidiaries. Each Parent Associate who has or has had access to Parent’s or any of its Subsidiaries’ trade secrets or confidential information has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent IP, trade secrets and confidential information. Parent has taken commercially reasonable steps to protect and preserve the confidentiality of its trade secrets and confidential information. (d) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used to create Parent IP, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights or a license to such Parent IP or the right to receive royalties for the practice of such Parent IP. (e) Section 3.12(e) of Parent Disclosure Schedule sets forth each license agreement pursuant to which Parent (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent or its Subsidiaries in its business as currently conducted (each a “Parent In-bound License”) or (ii) grants to any third party a license under any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License (each a “Parent Out-bound License”) (provided, that, Parent In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Associates, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent In-bound Licenses and Parent Out-bound Licenses are in full force and effect and are valid, enforceable and binding obligations of Parent and, to the Knowledge of Parent, each other party to such Parent In-bound Licenses or Parent Out-bound Licenses. Neither Parent, nor, to the Knowledge of Parent, any other party to such Parent In-bound Licenses or Parent Out-bound Licenses, is in material breach under any Parent In-bound Licenses or Parent Out-bound Licenses. Except as set forth in Section 3.12(e) of the Parent Disclosure Schedule, none of the terms or conditions of any Parent In-Bound License or any Parent Out-bound License requires Parent or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights. (f) To the Knowledge of Parent: (i) the operation of the business of Parent and its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IP. No Legal Proceeding is pending (or, to the Knowledge of Parent, is threatened in writing) (A) against Parent or its Subsidiaries alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent or its Subsidiaries alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IP. Since December 31, 2021, neither Parent nor its Subsidiaries have received any written notice or other written communication alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person. (g) None of the Parent IP or, to the Knowledge of Parent, any material Intellectual Property Rights exclusively licensed by Parent or its Subsidiaries, is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, that adversely and materially restricts the use, transfer, registration or licensing by Parent or its Subsidiaries of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its Subsidiaries. (h) To the Knowledge of Parent, Parent and the operation of Parent’s and its Subsidiaries’ business are, and have at all times been, in material compliance with all Privacy and Data Processing Requirements. To the knowledge of Parent, Parent and its Subsidiaries have at all applicable times provided all notices, and obtained and maintained all rights, consents, and authorizations, to Process Parent Data as Processed by or for Parent or its Subsidiaries. Since January 1, 2020, there have been (i) no loss or theft of, or security breach relating to Parent Data, (ii) no violation of any security policy of Parent or its Subsidiaries regarding any such Parent Data, and (iii) no unauthorized access to, or unauthorized, unintended, or improper use, disclosure, or other Processing of, any Parent Data. Parent and its Subsidiaries have taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures to protect the information technology systems used in, material to or necessary for operation of Parent’s or its Subsidiaries business as currently conducted and Parent Data from unauthorized use, access, or other Processing. To the Knowledge of Parent, there have been no (i) material malfunctions or unauthorized intrusions or breaches of the information technology systems used in, material to or necessary for the operation of Parent’s or its Subsidiaries’ business or (ii) material unauthorized access to, or other processing of, Parent Data.
Appears in 1 contract
Sources: Merger Agreement (BiomX Inc.)
Intellectual Property; Privacy. (a) Section 3.12(a4.12(a) of the Parent Purchaser Disclosure Schedule identifies each item of material Purchaser Registered IP owned in whole or in part by the Parent or its SubsidiariesIP, including, with respect to each application and registration: (i) the name of the applicant or registrant and any other co-owners, (ii) the jurisdiction of application or registration, and (iii) the application or registration number, (iv) the date of issue, filing, or registration, as applicable, and (v) to the extent applicable, the expiration date. To the Knowledge of ParentPurchaser, each of the U.S. patents Patents and patent Patent applications included in Section 3.12(a4.12(a) of the Parent Purchaser Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United StatesStates and the applicable foreign jurisdiction. For all Purchaser Registered IP owned or purported to be owned, in whole or in part, by the Purchaser (the “Owned Purchaser Registered IP”) and all other Purchaser Registered IP for which the Purchaser has responsibility for prosecution and maintenance activities, all necessary registration, maintenance, renewal and other material filing fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States or the applicable foreign jurisdiction, as the case may be, for the purpose of maintaining such Purchaser Registered IP in full force and effect and, except as set forth on Section 4.12(a) of the Purchaser Disclosure Schedule, there are no such filings, payments or other actions that must be made or taken on or before the three-month anniversary of the Closing Date. As of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, to the Knowledge of ParentPurchaser, threatened in writing, in which the scope, validity, enforceability or ownership of any Parent Purchaser IP is being or has been contested or challenged. To the Knowledge of ParentPurchaser, each item of Parent Purchaser IP is valid and enforceable, and with respect to the Parent’s material Purchaser Registered IP, subsisting. To the Knowledge of Purchaser, Purchaser has complied with all Laws regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Owned Purchaser Registered IP and all other Purchaser Registered IP for which the Purchaser has responsibility for prosecution and maintenance activities.
(b) Except as set forth in Section 3.12(bPurchaser (i) of the Parent Disclosure Scheduleexclusively owns, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the Registered IP owned in whole or in part by Parent or any of its Subsidiaries.
(c) Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule, and as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or its Subsidiaries exclusively own, are is the sole assignee of, or have has exclusively licensed all Owned Purchaser Registered IP and all other Purchaser IP (other than as disclosed in Section 4.12(b) of the Purchaser Disclosure Schedule), and (ii) has valid and continuing rights, pursuant to the Purchaser In-bound Licenses, to use all other material Parent IPIntellectual Property Rights as the same are used in or necessary for the conduct of the business as presently conducted by the Purchaser, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. The Parent To the Knowledge of Purchaser, the Owned Purchaser Registered IP is currently in compliance in all material respects with all Laws necessary to record and perfect the Purchaser’s interest in, and the chain of title of, the Owned Purchaser Registered IP and to ensure the ability to claim priority in all jurisdictions, provided that this clause shall not be construed as a representation or warranty of non-infringement of any Intellectual Property Rights licensed to Parent pursuant to a valid, enforceable written agreement Rights. The Purchaser IP constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of ParentPurchaser’s and any of its Subsidiaries’ business as currently conducted, provided that this clause shall not be construed as a representation or warranty of non-infringement of any Intellectual Property Rights. Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule each Parent Each Purchaser Associate involved in the creation or development of any material Parent Purchaser IP, pursuant to such Parent Purchaser Associate’s activities on behalf of Parent or any of its SubsidiariesPurchaser, has signed a valid and enforceable written agreement containing an assignment of such Parent Purchaser Associate’s rights in such Parent Purchaser IP to Parent or its SubsidiariesPurchaser. Each Parent Purchaser Associate who has or has had access to ParentPurchaser’s or any of its Subsidiaries’ trade secrets or confidential information has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent Purchaser IP, trade secrets and confidential information. Parent Purchaser has maintained copies of each such executed written agreement and, to the Knowledge of Purchaser, no party thereto is in default or breach of any such agreements. Purchaser has taken commercially reasonable steps to protect and preserve the confidentiality of its their respective trade secrets and confidential information.
(dc) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used or is being used to create Parent IPcreate, in whole or in part, any material Purchaser IP that are owned or purported to be owned by Purchaser, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights rights, license rights, or a license any other right to such Parent Purchaser IP (except for use rights during the term of the applicable agreement between the Purchaser and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Parent IPPurchaser IP (other than pursuant to any Purchaser In-bound License disclosed on Section 4.12(d) of the Purchaser Disclosure Schedule).
(ed) Section 3.12(e4.12(d) of Parent the Purchaser Disclosure Schedule sets forth each license agreement pursuant to which Parent Purchaser (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent or its Subsidiaries Purchaser in its business as currently conducted (each a “Parent Purchaser In-bound License”) or (ii) grants to any third party a license under any material Parent Purchaser IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License (each a “Parent Purchaser Out-bound License”) (provided, that, Parent Purchaser In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Purchaser Associates, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Purchaser Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent Purchaser In-bound Licenses and Parent Purchaser Out-bound Licenses Licenses, to the Knowledge of Purchaser, are in full force and effect and are valid, enforceable and binding obligations of Parent Purchaser and, to the Knowledge of ParentPurchaser, each other party to such Parent Purchaser In-bound Licenses or Parent Purchaser Out-bound Licenses. Neither ParentPurchaser, nor, to the Knowledge of ParentPurchaser, any other party to such Parent Purchaser In-bound Licenses or Parent Purchaser Out-bound Licenses, is in material breach under any Parent Purchaser In-bound Licenses or Parent Purchaser Out-bound Licenses. Except as set forth in Section 3.12(e4.12(d) of the Parent Purchaser Disclosure Schedule, none of the terms or conditions of any Parent Purchaser In-Bound bound License or any Parent Purchaser Out-bound License requires Parent Purchaser or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights.
(fe) To the Knowledge of ParentPurchaser: (i) the operation of the business of Parent and its Subsidiaries Purchaser as currently conducted has not infringed, misappropriated or otherwise violated and does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IPPurchaser IP or any Intellectual Property Rights exclusively licensed to the Purchaser. No Legal Proceeding is pending (or, to the Knowledge of ParentPurchaser, is threatened in writing) (A) against Parent or its Subsidiaries Purchaser alleging that the operation of the business of Parent or its Subsidiaries Purchaser infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent or its Subsidiaries Purchaser alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IPPurchaser IP or any Intellectual Property Rights exclusively licensed to the Purchaser. Since December 31, 2021, neither Parent nor its Subsidiaries have Purchaser has not received any written notice or other written communication alleging that the operation of the business of Parent or its Subsidiaries Purchaser infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.
(gf) None of the Parent IP or, to To the Knowledge of ParentPurchaser, none of the Purchaser IP owned by the Purchaser or any material Intellectual Property Rights Purchaser IP exclusively licensed by Parent or its Subsidiaries, the Purchaser is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, dispute that adversely and materially restricts the use, transfer, registration or licensing by Parent or its Subsidiaries Purchaser of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its SubsidiariesPurchaser IP.
(hg) To the Knowledge of ParentPurchaser, Parent Purchaser and the operation of ParentPurchaser’s and its Subsidiaries’ business are, and have at all times been, in material compliance with all applicable Laws and Privacy and Data Processing Requirements. To the knowledge Knowledge of ParentPurchaser, Parent and its Subsidiaries have Purchaser has at all applicable times provided all notices, and obtained and maintained all rights, consents, and authorizations, to Process Parent Purchaser Data as Processed by or for Parent or its SubsidiariesPurchaser. Since January 1December 31, 20202021, there have been (i) no loss or theft of, or security breach relating to Parent to. Purchaser Data, (ii) no violation of any security policy of Parent or its Subsidiaries Purchaser regarding any such Parent Purchaser Data, and (iii) no unauthorized access to, or unauthorized, unintended, or improper use, disclosure, or other Processing of, any Parent Purchaser Data. Parent and its Subsidiaries have Purchaser has taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures to protect the information technology systems used in, material to or necessary for operation of ParentPurchaser’s or its Subsidiaries business as currently conducted and Parent Purchaser Data from unauthorized use, access, or other Processing, and Purchaser has taken commercially reasonable steps to require that any third party with access to Purchaser Data collected by or on behalf of Purchaser has taken commercially reasonable steps to protect the Purchaser Data provided to them by Purchaser. Purchaser has implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Purchaser Data where such steps are required by applicable Privacy and Data Processing Requirements.
(h) To the Knowledge of ParentPurchaser, there have been no (i) material malfunctions or unauthorized intrusions or breaches of the information technology systems used in, material to or necessary for the operation of ParentPurchaser’s or its Subsidiaries’ business or business, (ii) material unauthorized access to, or other processing of, Parent Purchaser Data, or (iii) material breaches, security incidents, misuse of or unauthorized access to or disclosure of any Purchaser Data in the possession or control of Purchaser and Purchaser has not provided or been legally required to provide any notices to any Person in connection with an unauthorized disclosure of Purchaser Data. To the Knowledge of Purchaser, Purchaser has not been the subject of or received written notice of any complaints, claims or investigations related to their collection, use, storage or processing of Purchaser Data or alleging any violation of applicable Privacy and Data Processing Requirements.
(i) Purchaser has taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality and value of the Know-How and other confidential information included in the Purchaser IP. No trade secret, Know-How or proprietary information material to the business of Purchaser as presently conducted, as of the date of this Agreement has been authorized to be disclosed or, to the Knowledge of Purchaser, has been actually disclosed by Purchaser to any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of such Intellectual Property Rights or information, and excluding any Know-How or proprietary information disclosed by Purchaser in publications or public filings, including as required under applicable securities laws.
(j) To the Knowledge of Purchaser, the computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, leased or licensed by Purchaser an (collectively, the “Purchaser Systems”) perform in all material respects as is necessary for the conduct of its business as presently conducted by Purchaser. To the Knowledge of Purchaser, in the 12 months immediately prior to the date of this Agreement, (i) there have been no material failures, breakdowns or other adverse events materially affecting any such Purchaser Systems that have caused a material disruption or interruption to the conduct of the business of Purchaser as currently conducted, and (ii) there have not been any material incidents of unauthorized access or other security breaches of the Purchaser Systems.
Appears in 1 contract
Sources: Share Exchange Agreement (Protagenic Therapeutics, Inc.\new)
Intellectual Property; Privacy. (a) Section 3.12(a2.12(a) of the Parent Company Disclosure Schedule identifies each item of material Company Registered IP owned in whole or in part by the Parent or its SubsidiariesIP, including, with respect to each application and registration: (i) the name of the applicant or registrant and any other co-ownersowner, (ii) the jurisdiction of application or registration, and (iii) the application or registration number, (iv) the date of issue, filing, or registration, as applicable, and (v) to the extent applicable, the expiration date. To the Knowledge of Parentthe Company, each of the U.S. patents Patents and patent Patent applications included in Section 3.12(a2.12(a) of the Parent Company Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United StatesStates and the applicable foreign jurisdiction. For all Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Owned Company Registered IP”), and all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities, all necessary registration, maintenance, renewal and other relevant filing fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States or the applicable foreign jurisdiction, as the case may be, for the purpose of maintaining such Company Registered IP in full force and effect and, except as set forth on Section 2.12(a) of the Company Disclosure Schedule, there are no such filings, payments or other actions that must be made or taken on or before the three-month anniversary of the Closing Date. As of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, to the Knowledge of Parentthe Company, threatened in writing, in which the scope, validity, enforceability or ownership of any Parent Company IP is being or has been contested or challenged. To the Knowledge of Parentthe Company, each item of Parent Company IP is valid and enforceable, and with respect to the Parent’s material Company Registered IP, subsisting. The Company has complied with all Laws regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Owned Company Registered IP and all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities.
(b) Except as set forth in Section 3.12(bThe Company (i) of the Parent Disclosure Scheduleexclusively owns, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the Registered IP owned in whole or in part by Parent or any of its Subsidiaries.
(c) Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule, and as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or its Subsidiaries exclusively own, are is the sole assignee of, or have has exclusively licensed all Owned Company Registered IP and all other Company IP (other than as disclosed in Section 2.12(b) of the Company Disclosure Schedule), and (ii) has valid and continuing rights, pursuant to the Company In-bound Licenses, to use all other material Parent IPIntellectual Property Rights as the same are used in or necessary for the conduct of the business as presently conducted by the Company, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. The Parent Owned Company Registered IP is currently in compliance in all material respects with all Laws necessary to record and perfect the Company’s interest in, and the chain of title of, the Owned Company Registered IP and to ensure the ability to claim priority in all jurisdictions. The Company IP and the Intellectual Property Rights licensed to Parent the Company pursuant to a valid, enforceable written agreement constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of Parentthe Company’s and any of its Subsidiaries’ business as currently conducted. Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule each Parent Each Company Associate involved in the creation or development of any material Parent Company IP, pursuant to such Parent Company Associate’s activities on behalf of Parent or any of its Subsidiariesthe Company, has signed a valid and enforceable written agreement containing an assignment of such Parent Company Associate’s rights in such Parent Company IP to Parent or its Subsidiariesthe Company. Each Parent Company Associate who has or has had access to Parentthe Company’s or any of its Subsidiaries’ trade secrets or confidential information has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent Company IP, trade secrets and confidential information. Parent The Company has maintained copies of each such executed written agreement and, to the Knowledge of the Company, no party thereto is in default or breach of any such agreements. The Company has taken commercially reasonable steps to protect and preserve the confidentiality of its trade secrets and confidential information.
(dc) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used or is being used to create Parent IPcreate, in whole or in part, any Company IP that are owned or purported to be owned by Company, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights rights, license rights, or a license any other right to such Parent Company IP (except for use rights during the term of the applicable agreement between the Company and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Parent IPCompany IP (other than pursuant to any Company In-bound License disclosed on Section 2.12(d) of the Company Disclosure Schedule).
(ed) Section 3.12(e2.12(d) of Parent the Company Disclosure Schedule sets forth each license agreement pursuant to which Parent the Company (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent or its Subsidiaries the Company in its business as currently conducted (each a “Parent Company In-bound License”) or (ii) grants to any third party a license under any material Parent Company IP or material Intellectual Property Right licensed to Parent the Company under a Parent Company In-bound License (each a “Parent Company Out-bound License”) (provided, that, Parent Company In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Company Associates, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Company Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent Company In-bound Licenses and Parent Company Out-bound Licenses Licenses, to the Knowledge of the Company, are in full force and effect and are valid, enforceable and binding obligations of Parent the Company and, to the Knowledge of ParentCompany, each other party to such Parent Company In-bound Licenses or Parent Company Out-bound Licenses. Neither Parentthe Company, nor, nor to the Knowledge of Parentthe Company, any other party to such Parent Company In-bound Licenses or Parent Company Out-bound Licenses, is in material breach under any Parent Company In-bound Licenses or Parent Company Out-bound Licenses. Except as set forth in Section 3.12(e2.12(d) of the Parent Company Disclosure Schedule, none of the terms or conditions of any Parent Company In-Bound bound License or any Parent Company Out-bound License requires Parent the Company or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights.
(fe) To the Knowledge of Parentthe Company: (i) the operation of the business of Parent and its Subsidiaries the Company as currently conducted has not infringed, misappropriated or otherwise violated and does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IPCompany IP or any Intellectual Property Rights exclusively licensed to the Company. No Legal Proceeding is pending (or, to the Knowledge of Parentthe Company, is threatened in writing) (A) against Parent or its Subsidiaries the Company alleging that the operation of the business of Parent or its Subsidiaries the Company infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent or its Subsidiaries the Company alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IPCompany IP or any Intellectual Property Rights exclusively licensed to the Company. Since ‘December 31, 2021, neither Parent nor its Subsidiaries have the Company has not received any written notice or other written communication alleging that the operation of the business of Parent or its Subsidiaries the Company infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.
(gf) None of the Parent Company IP owned by the Company or, to the Knowledge of Parentthe Company, any material Intellectual Property Rights Company IP exclusively licensed by Parent or its Subsidiaries, to the Company is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, dispute that adversely and materially restricts the use, transfer, registration or licensing by Parent or its Subsidiaries the Company of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its SubsidiariesCompany IP.
(hg) To the Knowledge of Parentthe Company, Parent the Company and the operation of Parentthe Company’s and its Subsidiaries’ business are, are and have at all times been, in material compliance with all applicable Laws and Privacy and Data Processing Requirements. To the knowledge Knowledge of Parentthe Company, Parent and its Subsidiaries have the Company has at all applicable times provided all notices, and obtained and maintained all rights, consents, and authorizations, to Process Parent Company Data as Processed by or for Parent or its Subsidiariesthe Company. Since January 1‘December 31, 20202021, there have been (i) no loss or theft of, or security breach relating to Parent Company Data, (ii) no violation of any security policy of Parent or its Subsidiaries the Company regarding any such Parent Company Data, and (iii) no unauthorized access to, or unauthorized, unintended, or improper use, use disclosure, or other Processing of, of any Parent Company Data. Parent and its Subsidiaries have The Company has taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures to protect the information technology systems used in, material to or necessary for operation of Parentthe Company’s or its Subsidiaries business as currently conducted and Parent Company Data from unauthorized use, use access, or other Processing, and the Company has taken commercially reasonable steps to require that any third party with access to Company Data collected by or on behalf of the Company has taken commercially reasonable steps to protect the Company Data provided to them by the Company. The Company has implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Company Data where such steps are required by applicable Privacy and Data Processing Requirements.
(h) To the Knowledge of Parentthe Company, there have been no (i) material malfunctions or unauthorized intrusions or breaches of the information technology systems used in, material to or necessary for the operation of Parentthe Company’s or its Subsidiaries’ business or business, (ii) material unauthorized access to, or other processing of, Parent Company Data, or (iii) material breaches, security incidents, misuse of or unauthorized access to or disclosure of any Company Data in the possession or control of the Company, and the Company has not provided or been legally required to provide any notices to any Person in connection with an unauthorized disclosure of Company Data. To the Knowledge of the Company, the Company has not been the subject of or received written notice of any complaints, claims or investigations related to their collection, use, storage or processing of Company Data or alleging any violation of applicable Privacy and Data Processing Requirements.
(i) The Company has taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality and value of the Know-How and other confidential information included in the Company IP. No trade secret, Know-How or proprietary information material to the business of the Company as presently conducted, as of the date of this Agreement has been authorized to be disclosed or, to the knowledge of the Company, has been actually disclosed by the Company to any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of such Intellectual Property Rights or information, and excluding any Know-How or proprietary information disclosed by the Company in publications or public filings, including as required under applicable securities laws.
(j) To the Knowledge of the Company, the computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, leased or licensed by the Company an (collectively, the “Company Systems”) perform in all material respects as is necessary for the conduct of its business as presently conducted by Company. To the Knowledge of the Company, in the 12 months immediately prior to the date of this Agreement, (i) there have been no material failures, breakdowns or other adverse events materially affecting any such Company Systems that have caused a material disruption or interruption to the conduct of the business of the Company as currently conducted, and (ii) there have not been any material incidents of unauthorized access or other security breaches of the Company Systems.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a5.19(a) of the Parent Disclosure Schedule identifies each item Letter sets forth a true and complete list of material Registered IP owned in whole or in part by the Parent or its Subsidiaries, including, with respect to each application and registration: (i) the name all of the applicant following that are owned by or registrant and any other co-owners, (ii) the jurisdiction of application or registration, and (iii) the application or registration number. To the Knowledge of Parent, each of the U.S. patents and patent applications included in Section 3.12(a) of the Parent Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United States. As of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, exclusively licensed to the Knowledge of Parent, threatened in writing, in which the scope, validity, enforceability or ownership of any Parent IP is being or has been contested or challenged. To the Knowledge of Parent, each item of Parent IP is valid and enforceable, and with respect to the Parent’s material Registered IP, subsisting.
(b) Except as set forth in Section 3.12(b) of the Parent Disclosure Schedule, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the Registered IP owned in whole or in part by Parent or any of its Subsidiaries.
: (ci) material patents and patent applications; (ii) material trademark registrations and applications; (iii) material copyright registrations and applications, material registered trademarks, design registrations and applications for design registration; ((i)-(iii), collectively, “Material Parent Registered IP”) and (iv) a true and complete list of all domain names. Except as set forth as, individually or in Section 3.12(c) of the Parent Disclosure Scheduleaggregate, and as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Parent Material Adverse EffectEffect (A) all of the Material Parent Registered IP owned by Parent, and with respect to Material Parent Registered IP not owned by Parent, to the knowledge of Parent, is subsisting, (B) any Material Parent Registered IP that comprises trademark or copyrights that are registered or patents that have issued is, to the knowledge of Parent, valid and enforceable, (C) as of the date of this Agreement, Parent has not received written notice that (x) any Material Parent Registered IP is involved in any interference, reissue, derivation, reexamination, opposition, cancellation or its Subsidiaries exclusively ownsimilar proceeding contesting the validity, are the sole assignee ofenforceability, claim construction, ownership or right to use, sell, offer for sale, license or dispose of any Material Parent Registered IP, or have (y) any action is threatened with respect to any of the Material Parent Registered IP, and (D) all Material Parent Registered IP owned by Parent is owned exclusively licensed all of material Parent IPby Parent, free and clear of any and all Encumbrances Liens (other than Permitted Encumbrances. The Liens and any licenses granted by Parent IP and the Intellectual Property Rights licensed to Parent pursuant to a valid, enforceable written agreement constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of Parent’s and any of its Subsidiaries’ business as currently conducted. Except Subsidiaries as set forth in on Section 3.12(c5.16(b)(vii) of the Parent Disclosure Schedule each Letter or the disclosure of which are not required under Section 5.16(b)(vii)), and any Material Parent Associate involved Registered IP not owned by Parent or any of its Subsidiaries is, to the knowledge of Parent, free and clear of any and all Liens (other than Permitted Liens or any Liens set forth in the creation Contract pursuant to which Parent or development any of its Subsidiaries obtained rights to such Material Parent Registered IP).
(b) ▇▇▇▇▇▇ has not received any written notice that there is any, and, to the knowledge of Parent, there is no, Person who is or claims to be an inventor of any material invention claimed by a patent within the Material Parent Registered IP or Parent Owned IP who is not a named inventor thereof.
(c) The Material Parent Registered IP, pursuant Parent Owned IP and other Intellectual Property Rights possessed, held or obtained under valid and enforceable licenses include, to the knowledge of Parent, all Intellectual Property Rights necessary for Parent and its Subsidiaries to conduct its business as currently conducted and contemplated to be conducted; provided, however, that the foregoing representation is not a representation with respect to non- infringement of Intellectual Property Rights.
(d) Parent and its Subsidiaries have taken commercially reasonable measures to maintain the confidentiality of all information that constitutes a Trade Secret of Parent and its Subsidiaries, including requiring all Persons having access thereto to execute written non-disclosure agreements or other binding obligations to maintain confidentiality of such information.
(e) (i) to the knowledge of Parent, the conduct of the businesses of Parent, as currently conducted by Parent, including the manufacture, marketing, offering for sale, sale, importation, use or intended use or other disposal of any Parent Associate’s activities on behalf Product, has not infringed, misappropriated or diluted, does not infringe, misappropriate or dilute, and will not infringe, misappropriate or dilute, any Intellectual Property Rights of any Person, (ii) Parent has not received any written notice or claim asserting or suggesting that such infringement, misappropriation or dilution is or may be occurring or has or may have occurred, (iii) to the knowledge of Parent, no Person is infringing or misappropriating any Material Parent Registered IP.
(f) Since April 1, 2021, (i) Parent and its Subsidiaries have taken commercially reasonable steps designed to protect the confidentiality and security of the computer and information technology systems used by Parent or any of its Subsidiaries and the information stored or contained therein or transmitted thereby, and (ii) to the knowledge of Parent, there has been no material unauthorized or improper use, loss, access or transmittal of any such information in the possession or control of Parent or any of its Subsidiaries, has signed a valid and enforceable written agreement containing an assignment of such Parent Associate’s rights in such Parent IP to Parent or its Subsidiaries. Each Parent Associate who has or has had access to Parent’s or any of its Subsidiaries’ trade secrets or confidential information has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent IP, trade secrets and confidential information. Parent has taken commercially reasonable steps to protect and preserve the confidentiality of its trade secrets and confidential information.
(d) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used to create Parent IP, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights or a license to such Parent IP or the right to receive royalties for the practice of such Parent IP.
(e) Section 3.12(e) of Parent Disclosure Schedule sets forth each license agreement pursuant to which Parent (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent or its Subsidiaries in its business as currently conducted (each a “Parent In-bound License”) or (ii) grants to any third party a license under any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License (each a “Parent Out-bound License”) (provided, that, Parent In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Associates, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent In-bound Licenses and Parent Out-bound Licenses are in full force and effect and are valid, enforceable and binding obligations of Parent and, to the Knowledge of Parent, each other party to such Parent In-bound Licenses or Parent Out-bound Licenses. Neither Parent, nor, to the Knowledge of Parent, any other party to such Parent In-bound Licenses or Parent Out-bound Licenses, is in material breach under any Parent In-bound Licenses or Parent Out-bound Licenses. Except as set forth in Section 3.12(e) of the Parent Disclosure Schedule, none of the terms or conditions of any Parent In-Bound License or any Parent Out-bound License requires Parent or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights.
(f) To the Knowledge of Parent: (i) the operation of the business of Parent and its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IP. No Legal Proceeding is pending (or, to the Knowledge of Parent, is threatened in writing) (A) against Parent or its Subsidiaries alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent or its Subsidiaries alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IP. Since December 31, 2021, neither Parent nor its Subsidiaries have received any written notice or other written communication alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.
(g) None of the Parent IP orSince April 1, 2021, (i) to the Knowledge of Parent, any material Intellectual Property Rights exclusively licensed by Parent or its Subsidiaries, is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, that adversely and materially restricts the use, transfer, registration or licensing by Parent or its Subsidiaries of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its Subsidiaries.
(h) To the Knowledge of Parent, Parent and the operation of Parent’s and its Subsidiaries’ business are, and have at all times been, in material compliance with all Privacy and Data Processing Requirements. To the knowledge of Parent, Parent and its Subsidiaries have at materially complied with all Laws governing privacy and data protection applicable times provided all noticesto the collection, retention and obtained and maintained all rights, consents, and authorizations, to Process Parent Data as Processed use of Personal Information by or for Parent or its Subsidiaries. Since January 1, 2020, there have been Subsidiaries (i) no loss or theft of, or security breach relating to “Parent DataPrivacy Laws”), (ii) no material claims by or before any Governmental Entity have been asserted or, to the knowledge of Parent, have been threatened, in writing against Parent or any of its Subsidiaries alleging a violation of any security policy of by Parent or its Subsidiaries regarding of any such applicable Parent DataPrivacy Laws, (iii) neither the execution of this Agreement by Parent nor the consummation of the Transactions will result in any breach or other violation by Parent or its Subsidiaries of any Parent Privacy Laws, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, and (iiiiv) no unauthorized access to, or unauthorized, unintended, or improper use, disclosure, or other Processing of, any Parent Data. Parent and its Subsidiaries have taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures designed to protect any Personal Information collected, retained or used by Parent or any of its Subsidiaries against unauthorized or improper use, loss, access or transmittal.
(h) No government funding, facilities or resources of a university, college, other educational institution or research center or funding from third parties was used in the information technology systems used indevelopment of the Material Parent Registered IP or Parent Owned IP, material and no Governmental Entity, university, college, other educational institution or research center has, to the knowledge of Parent, any claim or necessary for operation right in or to such Material Parent Registered IP or Parent Owned IP.
(i) The execution, delivery and performance by Parent of this Agreement, and the consummation of the Transactions, will not result in the loss of, or give rise to any right of any third party to terminate or modify any of Parent’s rights or its Subsidiaries obligations under any existing agreement under which any Person grants to Parent, a license or right under or with respect to any Intellectual Property Rights are necessary or used in the conduct of the business as currently conducted and contemplated to be conducted by Parent Data from unauthorized useand its Subsidiaries, accesstaken as a whole, or other Processing. To the Knowledge of Parent, there have been no (i) material malfunctions or unauthorized intrusions or breaches including any of the information technology systems used in, material to agreements listed in or necessary for Section 5.19(a) of the operation of Parent’s or its Subsidiaries’ business or (ii) material unauthorized access to, or other processing of, Parent DataDisclosure Letter.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.12(a3.11(a) of the Parent Company Disclosure Schedule identifies each item of material Company Registered IP owned in whole or in part by the Parent or its SubsidiariesIP, including, with respect to each application and registration: (i) the name of the applicant or registrant and any other co-ownersowner, (ii) the jurisdiction of application or registration, and (iii) the application or registration number, (iv) the date of issue, filing, or registration, as applicable, and (v) to the extent applicable, the expiration date. To the Knowledge of ParentSellers, each of the U.S. patents Patents and patent Patent applications included in Section 3.12(a3.11(a) of the Parent Company Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United StatesStates and the applicable foreign jurisdiction. As For all Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Owned Company Registered IP”) and all other Company Registered IP for which the Company or one of its Subsidiaries has responsibility for prosecution and maintenance activities, all necessary registration, maintenance, renewal, and other material filing fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States or the applicable foreign jurisdiction, as the case may be, for the purpose of maintaining such Company Registered IP in full force and effect and, except as set forth on Section 3.11(a) of the Company Disclosure Schedule, there are no such filings, payments or other actions that must be made or taken on or before the three-month anniversary of the Closing Date. To the Knowledge of Sellers, as of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, to the Knowledge of Parent, or threatened in writing, in which the scope, validity, enforceability or ownership of any Parent Company IP is being or has been contested or challenged. To the Knowledge of ParentSellers, each item of Parent Company IP is valid and enforceable, and with respect to the Parent’s material Company Registered IP, subsisting. To the Knowledge of Sellers, the Company and each of its Subsidiaries has complied with the duty of disclosure, candor and good faith as required by the United States Patent and Trademark Office during the prosecution of each Patent included in the Owned Company Registered IP and all other Company Registered IP for which the Company or its Subsidiaries has responsibility for prosecution and maintenance activities have been complied with; and in all foreign offices having similar requirements, all such requirements have been complied with.
(b) Except as set forth in Section 3.12(bThe Company or one of its Subsidiaries (i) of the Parent Disclosure Schedule, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the exclusively owns all Owned Company Registered IP owned in whole or in part by Parent or any of its Subsidiaries.
(c) Except as set forth in Section 3.12(c) of the Parent Disclosure Scheduleand either owns, and as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or its Subsidiaries exclusively own, are is the sole assignee of, or have has exclusively licensed all other material Company IP, and (ii) has valid and continuing rights to use all other material Intellectual Property Rights as the same are used in or necessary for the conduct of material Parent IPthe business as presently conducted by the Company, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. To the Knowledge of Sellers, the Owned Company Registered IP is currently in compliance in all material respects with all Laws necessary to record and perfect the Company’s interest in, and the chain of title of, the Owned Company Registered IP and to ensure the ability to claim priority in all jurisdictions, provided that this clause shall not be construed as a representation or warranty of non-infringement of any Intellectual Property Rights. The Parent Company IP and the Intellectual Property Rights licensed to Parent the Company pursuant to a valid, enforceable written agreement constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of Parentthe Company’s and any of its Subsidiaries’ business as currently conducted, provided that this clause shall not be construed as a representation or warranty of non-infringement of any Intellectual Property Rights. Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule each Parent Each Company Associate involved in the creation or development of any material Parent Company IP, pursuant to such Parent Company Associate’s activities on behalf of Parent the Company or any of its Subsidiaries, has signed a valid and enforceable written agreement containing an assignment of such Parent Company Associate’s rights in such Parent Company IP to Parent the Company or one of its Subsidiaries. Each Parent Company Associate who has or has had access to Parent’s or any of its Subsidiaries’ trade secrets or confidential information of the Company or its Subsidiaries has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent IP, Company IP trade secrets and confidential informationinformation of the Company. Parent The Company has maintained copies of each such executed written agreement and, to the Knowledge of Sellers, no party thereto is in default or breach of any such agreements. The Company has taken commercially reasonable steps to protect and preserve the confidentiality of its and its Subsidiaries’ trade secrets and confidential information.
(dc) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used or is being used to create Parent IPcreate, in whole or in part, any material Company IP that are owned or purported to be owned by the Company or any of its Subsidiaries, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights rights, license rights, or a license any other right to such Parent Company IP (except for use rights during the term of the applicable agreement between the Company and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Parent Company IP. No Governmental Body has initiated proceedings and, to the Knowledge of Sellers, no basis exists for any Governmental Body, to (i) seek payment or repayment from the Company of any amount or benefit received under any government programs or (ii) seek performance of any obligation of the Company under any government programs.
(ed) Section 3.12(e) of Parent Disclosure Schedule sets forth each The Company does not have any license agreement pursuant to which Parent it or any of its Subsidiaries (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent and material to the Company or any of its Subsidiaries in its their business as currently conducted (each a “Parent Company In-bound License”) or (ii) grants to any third party a license under any material Parent Company IP or material Intellectual Property Right licensed to Parent the Company or any of its Subsidiaries under a Parent Company In-bound License (each a “Parent Company Out-bound License”) (provided, that, Parent Company In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Company Associates, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Company Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent In-bound Licenses and Parent Out-bound Licenses are in full force and effect and are valid, enforceable and binding obligations of Parent and, to the Knowledge of Parent, each other party to such Parent In-bound Licenses or Parent Out-bound Licenses. Neither Parent, nor, to the Knowledge of Parent, any other party to such Parent In-bound Licenses or Parent Out-bound Licenses, is in material breach under any Parent In-bound Licenses or Parent Out-bound Licenses. Except as set forth in Section 3.12(e) of the Parent Disclosure Schedule, none of the terms or conditions of any Parent In-Bound License or any Parent Out-bound License requires Parent or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights.
(fe) To the Knowledge of ParentSellers: (i) the operation of the business of Parent the Company and its Subsidiaries as currently conducted has not infringed, misappropriated or otherwise violated and does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IPCompany IP or any Intellectual Property Rights exclusively licensed to the Company or any of its Subsidiaries. No Legal Proceeding is pending (or, to the Knowledge of ParentSellers, is threatened in writing) (A) against Parent the Company or any of its Subsidiaries alleging that the operation of the business of Parent the Company or any of its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent the Company or any of its Subsidiaries alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IPCompany IP or any Intellectual Property Rights exclusively licensed to the Company or any of its Subsidiaries. Since December 31, 2021, neither Parent the Company nor any of its Subsidiaries have has received any written notice or other written communication alleging that the operation of the business of Parent the Company or any of its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.
(gf) None of the Parent IP or, to To the Knowledge of ParentSellers, none of the Company IP owned by the Company or any material Intellectual Property Rights exclusively licensed by Parent or of its Subsidiaries, or any Company IP exclusively licensed to the Company or any of its Subsidiaries is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, dispute that adversely and materially restricts the use, transfer, registration or licensing by Parent the Company or any of its Subsidiaries of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its SubsidiariesCompany IP.
(hg) To the Knowledge of ParentSellers, Parent the Company and its Subsidiaries and the operation of Parentthe Company’s and its Subsidiaries’ business are, and have at all times been, in material compliance with all applicable Laws and Privacy and Data Processing Requirements. To the knowledge Knowledge of ParentSellers, Parent the Company and its Subsidiaries have at all applicable times provided all notices, and obtained and maintained all rights, consents, and authorizations, to Process Parent Company Data as Processed by or for Parent the Company or any of its Subsidiaries. Since January 1December 31, 20202021, there have been (i) no loss or theft of, or security breach relating to Parent to, Company Data, (ii) no violation of any security policy of Parent the Company or any of its Subsidiaries regarding any such Parent Company Data, and (iii) no unauthorized access to, or unauthorized, unintended, or improper use, disclosure, or other Processing of, any Parent Company Data. Parent The Company and its Subsidiaries have taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures to protect the information technology systems used in, material to or necessary for operation of Parentthe Company’s or its Subsidiaries and it Subsidiaries’ business as currently conducted and Parent Company Data from unauthorized use, access, or other Processing, and the Company and its Subsidiaries have taken commercially reasonable steps to require that any third party with access to Company Data collected by or on behalf of the Company or any of its Subsidiaries has taken commercially reasonable steps to protect the Company Data provided to them by the Company or any of its Subsidiaries. The Company and its Subsidiaries have implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Company Data where such steps are required by applicable Privacy and Data Processing Requirements.
(h) To the Knowledge of ParentSellers, there have been no (i) material malfunctions or unauthorized intrusions or breaches of the information technology systems used in, material to or necessary for the operation of Parentthe Company’s or and its Subsidiaries’ business or business, (ii) material unauthorized access to, or other processing of, Parent Company Data, or (iii) material breaches, security incidents, misuse of or unauthorized access to or disclosure of any Company Data in the possession or control of the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has provided or been legally required to provide any notices to any Person in connection with an unauthorized disclosure of Company Data. To the Knowledge of Sellers, the Company and its Subsidiaries have not been the subject of or received written notice of any complaints, claims or investigations related to their collection, use, storage or processing of Company Data or alleging any violation of applicable Privacy and Data Processing Requirements.
(i) The Company and its Subsidiaries have taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality and value of the Know-How and other confidential information included in the Company IP. No trade secret, Know-How or proprietary information material to the business of the Company and its Subsidiaries as presently conducted, as of the date of this Agreement has been authorized to be disclosed or, to the Knowledge of Sellers, has been actually disclosed by the Company or any of its Subsidiaries to any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of such Intellectual Property Rights or information, and excluding any Know-How or proprietary information disclosed by the Company or any of its Subsidiaries in publications or public filings, including as required under applicable securities laws.
(j) To the Knowledge of Sellers, the computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, leased or licensed by the Company and its Subsidiaries (collectively, the “Company Systems”) perform in all material respects as is necessary for the conduct of its business as presently conducted by Company and its Subsidiaries. To the Knowledge of Sellers, in the 12 months immediately prior to the date of this Agreement, (i) there have been no material failures, breakdowns or other adverse events materially affecting any such Company Systems that have caused a material disruption or interruption to the conduct of the business of the Company and its Subsidiaries as currently conducted, and (ii) there have not been any material incidents of unauthorized access or other security breaches of the Company Systems.
Appears in 1 contract
Sources: Share Exchange Agreement (Protagenic Therapeutics, Inc.\new)
Intellectual Property; Privacy. (a) Section 3.12(a) of the Parent Disclosure Schedule identifies each item of material Parent Registered IP owned in whole or in part by the Parent or its SubsidiariesIP, including, with respect to each application and registration: (i) the name of the applicant or registrant and any other co-owners, (ii) the jurisdiction of application or registration, and (iii) the application or registration number, (iv) the date of issue, filing, or registration, as applicable, and (v) to the extent applicable, the expiration date. To the Knowledge of Parent, each of the U.S. patents Patents and patent Patent applications included in Section 3.12(a) of the Parent Disclosure Schedule properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Laws of the United StatesStates and the applicable foreign jurisdiction. For all Parent Registered IP owned or purported to be owned, in whole or in part, by the Parent (the “Owned Parent Registered IP”), and all other Parent Registered IP for which the Parent has responsibility for prosecution and maintenance activities, all necessary registration, maintenance, renewal and other relevant filing fees due through the Closing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States or the applicable foreign jurisdiction, as the case may be, for the purpose of maintaining such Parent Registered IP in full force and effect and, except as set forth on Section 3.12(a) of the Parent Disclosure Schedule, there are no such filings, payments or other actions that must be made or taken on or before the three-month anniversary of the Closing Date. As of the date of this Agreement, no cancellation, interference, opposition, reissue, reexamination or other proceeding of any nature (other than office actions or similar communications issued by any Governmental Body in the ordinary course of prosecution of any pending applications for registration) is pending or, to the Knowledge of Parent, threatened in writing, in which the scope, validity, enforceability or ownership of any Parent IP is being or has been contested or challenged. To the Knowledge of Parent, each item of Parent IP is valid and enforceable, and with respect to the Parent’s material Parent Registered IP, subsisting. The Parent and its Subsidiaries have complied with all Laws regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Owned Parent Registered IP and all other Parent Registered IP for which the Parent or its Subsidiaries has responsibility for prosecution and maintenance activities.
(b) Except as set forth in Section 3.12(b) of the Parent Disclosure Schedule, there are no actions that must be taken within ninety (90) days of the Closing, the failure of which will result in the abandonment, lapse or cancellation of any of the Registered IP owned in whole or in part by Parent or any of its Subsidiaries.
(c) Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule, and as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or its Subsidiaries (i) exclusively own, are the sole assignee of, or have exclusively licensed all Owned Parent Registered IP and all other Parent IP (other than as disclosed in Section 3.12(b) of the Parent Disclosure Schedule), and (ii) has valid and continuing rights, pursuant to the Parent In-bound Licenses, to use all other material Intellectual Property Rights as the same are used in or necessary for the conduct of the business as presently conducted by the Parent IPand its Subsidiaries, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. The Owned Parent Registered IP is currently in compliance in all material respects with all Laws necessary to record and perfect Parent’s or its Subsidiaries’, as applicable, interest in, and the chain of title of, the Owned Parent Registered IP and to ensure the ability to claim priority in all jurisdictions. The Parent IP and the Intellectual Property Rights licensed to Parent pursuant to a valid, enforceable written agreement constitute all Intellectual Property Rights used in, material to or otherwise necessary for the operation of Parent’s and any of its Subsidiaries’ business as currently conducted. Except as set forth in Section 3.12(c) of the Parent Disclosure Schedule each Each Parent Associate involved in the creation or development of any material Parent IP, pursuant to such Parent Associate’s activities on behalf of Parent or any of its Subsidiaries, has signed a valid and enforceable written agreement containing an assignment of such Parent Associate’s rights in such Parent IP to Parent or its Subsidiaries. Each Parent Associate who has or has had access to Parent’s or any of its Subsidiaries’ trade secrets or confidential information has signed a valid and enforceable written agreement containing confidentiality provisions protecting the Parent IP, trade secrets and confidential information. Parent has maintained copies of each such executed written agreement and, to the Knowledge of the Parent, no party thereto is in default or breach of any such agreements. Parent and its Subsidiaries have taken commercially reasonable steps to protect and preserve the confidentiality of its their respective trade secrets and confidential information.
(dc) Except as set forth on Section 3.12(d) of the Parent Disclosure Schedule, to the Knowledge of Parent, no No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been used or is being used to create create, in whole or in part, any Parent IPIP that are owned or purported to be owned by Parents or any of its Subsidiaries, except for any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights rights, license rights, or a license any other right to such Parent IP (except for use rights during the term of the applicable agreement between the Parent or its Subsidiary and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Parent IPIP (other than pursuant to any Parent In-bound License disclosed on Section 3.12(d) of the Parent Disclosure Schedule).
(ed) Section 3.12(e3.12(d) of Parent Disclosure Schedule sets forth each license agreement pursuant to which Parent (i) is granted a license under any material Intellectual Property Right owned by any third party that is used by Parent or its Subsidiaries in its business as currently conducted (each a “Parent In-bound License”) or (ii) grants to any third party a license under any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License (each a “Parent Out-bound License”) (provided, that, Parent In-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, services agreements, clinical trial agreements, agreements with Parent Associates, non-disclosure agreements, commercially available Software-as-a-Service offerings, or off-the-shelf software licenses; and Parent Out-bound Licenses shall not include, when entered into in the Ordinary Course of Business, material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive outbound licenses). All Parent In-bound Licenses and Parent Out-bound Licenses Licenses, to the Knowledge of Parent, are in full force and effect and are valid, enforceable and binding obligations of Parent or its Subsidiaries and, to the Knowledge of Parent, each other party to such Parent In-bound Licenses or Parent Out-bound Licenses. Neither Parent, nor, to the Knowledge of Parent, any other party to such Parent In-bound Licenses or Parent Out-bound Licenses, is in material breach under any Parent In-bound Licenses or Parent Out-bound Licenses. Except as set forth in Section 3.12(e3.12(c) of the Parent Disclosure Schedule, none of the terms or conditions of any Parent In-Bound bound License or any Parent Out-bound License requires Parent or any of its Subsidiaries or any of their Affiliates to maintain, develop or prosecute any Intellectual Property Rights.
(fe) To the Knowledge of Parent: (i) the operation of the business of Parent and its Subsidiaries as currently conducted has not infringed, misappropriated or otherwise violated and does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other Person and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IPIP or any Intellectual Property Rights exclusively licensed to the Parent. No Legal Proceeding is pending (or, to the Knowledge of Parent, is threatened in writing) (A) against Parent or its Subsidiaries alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person or (B) by Parent or its Subsidiaries alleging that another Person has infringed, misappropriated or otherwise violated any of the Parent IPIP or any Intellectual Property Rights exclusively licensed to the Parent. Since December 31, 2021, neither Parent nor its Subsidiaries have received any written notice or other written communication alleging that the operation of the business of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another Person.
(gf) None of the Parent IP owned by the Parent or, to the Knowledge of Parent, any material Intellectual Property Rights Parent IP exclusively licensed by Parent or its Subsidiaries, is subject to any pending or outstanding injunction, directive, order, judgment or other disposition of dispute, that adversely and materially restricts the use, transfer, registration or licensing by Parent or its Subsidiaries of any such Parent IP or material Intellectual Property Rights exclusively licensed to Parent or its SubsidiariesIP.
(hg) To the Knowledge of Parent, Parent and the operation of Parent’s and its Subsidiaries’ business are, and have at all times been, in material compliance with all applicable Laws and Privacy and Data Processing Requirements. To the knowledge of Parent, Parent and its Subsidiaries have at all applicable times provided all notices, and obtained and maintained all rights, consents, and authorizations, to Process Parent Data as Processed by or for Parent or its Subsidiaries. Since January 1December 31, 20202021, there have been (i) no loss or theft of, or security breach relating to to. Parent Data, (ii) no violation of any security policy of Parent or its Subsidiaries regarding any such Parent Data, and (iii) no unauthorized access to, or unauthorized, unintended, or improper use, disclosure, or other Processing of, any Parent Data. Parent and its Subsidiaries have taken commercially reasonable steps and implemented reasonable disaster recovery and security plans and procedures to protect the information technology systems used in, material to or necessary for operation of Parent’s or its Subsidiaries business as currently conducted and Parent Data from unauthorized use, access, or other Processing, and the Parent has taken commercially reasonable steps to require that any third party with access to Parent Data collected by or on behalf of the Parent has taken commercially reasonable steps to protect the Parent Data provided to them by the Parent. The Parent has implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Parent Data where such steps are required by applicable Privacy and Data Processing Requirements.
(h) To the Knowledge of Parent, there have been no (i) material malfunctions or unauthorized intrusions or breaches of the information technology systems used in, material to or necessary for the operation of Parent’s or its Subsidiaries’ business or business, (ii) material unauthorized access to, or other processing of, Parent Data, or (iii) material breaches, security incidents, misuse of or unauthorized access to or disclosure of any Parent Data in the possession or control of the Parent and the Parent has not provided or been legally required to provide any notices to any Person in connection with an unauthorized disclosure of Parent Data. To the Knowledge of the Parent, the Parent has not been the subject of or received written notice of any complaints, claims or investigations related to their collection, use, storage or processing of Parent Data or alleging any violation of applicable Privacy and Data Processing Requirements.
(i) The Parent has taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality and value of the Know-How and other confidential information included in the Parent IP. No trade secret, Know-How or proprietary information material to the business of the Parent as presently conducted, as of the date of this Agreement has been authorized to be disclosed or, to the Knowledge of the Parent, has been actually disclosed by the Parent or any Subsidiary to any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of such Intellectual Property Rights or information, and excluding any Know-How or proprietary information disclosed by the Parent in publications or public filings, including as required under applicable securities laws.
(j) To the Knowledge of Parent, the computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, leased or licensed by the Parent an (collectively, the “Parent Systems”) perform in all material respects as is necessary for the conduct of its business as presently conducted by Parent. To the Knowledge of the Parent, in the 12 months immediately prior to the date of this Agreement, (i) there have been no material failures, breakdowns or other adverse events materially affecting any such Parent Systems that have caused a material disruption or interruption to the conduct of the business of the Parent as currently conducted, and (ii) there have not been any material incidents of unauthorized access or other security breaches of the Parent Systems.
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