Common use of Other Improvements Clause in Contracts

Other Improvements. Any Improvements that are neither XENCOR Intellectual Property nor BII Intellectual Property shall be defined as “Other Improvements” and shall be jointly owned by BII and XENCOR, with the Parties entitled to practice the same as joint owners, without duty of accounting to the other Party and with the right to license to others without consent of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR’s use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, (i) know-how pertaining to manufacturing of biopharmaceuticals generally and gained during the course of performing this Agreement may be freely used by BII in its biopharmaceutical business without any restrictions, provided, that, notwithstanding the foregoing, BII may not use any Other Improvement that relates specifically to the Product. a. Each Party shall ensure that all of such Party’s (or its Affiliated Company’s) employees or contractors acting on its behalf pursuant to this Agreement are and will be obligated under a binding written agreement or by law to assign to such Party all inventions and rights on the inventions made under this Agreement so that such Party can comply with the terms of this Agreement. b. Subject to the terms and conditions contained in this Agreement, BII shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by BR. XENCOR shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by XENCOR. c. BII shall keep XENCOR and XENCOR shall keep BII reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Agreement.

Other Improvements. Any Improvements that are neither XENCOR Intellectual Property nor BII Intellectual Property shall be defined as “Other Improvements” As more particularly set forth in Article 1, above, and shall be jointly owned by BII and XENCOR, with the Parties entitled subject to practice the same as joint owners, without duty of accounting to the other Party and with the right to license to others without consent all of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR’s use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, (i) know-how pertaining to manufacturing of biopharmaceuticals generally and gained during the course of performing this Agreement may be freely used by BII in its biopharmaceutical business without any restrictions, provided, that, notwithstanding the foregoing, BII may not use any Other Improvement that relates specifically to the Product. a. Each Party shall ensure that all of such Party’s (or its Affiliated Company’s) employees or contractors acting on its behalf pursuant to this Agreement are and will be obligated under a binding written agreement or by law to assign to such Party all inventions and rights on the inventions made under this Agreement so that such Party can comply with the terms of this Agreement. b. Subject to the terms and conditions of this Work Letter, Landlord shall, at Landlord's sole cost and expense, be responsible for the construction of the Improvements identified in the Approved Space Plan which shall be built to building standards unless otherwise detailed in the Approved Space Plan. Notwithstanding anything to the contrary contained in this Agreementherein, BII Tenant shall be responsible for filingthe cost of all items not expressly identified (with reasonable specificity) on the Approved Space Plan to the extent such items require other than Building-Standard materials, prosecution components, or finishes (collectively, the "Non-Conforming Improvements"), or otherwise exceed the Improvement Allowance (as more particularly set forth in Article 1 above), but only to the extent the same are requested by Tenant in writing. In the event Tenant desires such Non-Conforming Improvements, Tenant shall deliver written notice (the "Change Notice") of the same to Landlord, setting forth in detail the Non-Conforming Improvements Tenant wishes to have installed in the Premises (the "Improvements Change"). Landlord shall, within five (5) business days or as soon as reasonably possible (but in no event in excess of five (5) business days) following its receipt of a Change Notice related to an Improvements Change, either (i) reasonably approve the Improvements Change, or (ii) reasonably disapprove the Improvements Change, in which event Landlord's notice shall include, with reasonably specificity, the reason(s) for such disapproval. Prior to, or at the time of Landlord's approval of such Non-Conforming Improvements, Landlord shall provide Tenant with its good faith estimate of the actual cost of, and maintenance any additional time required for, the performance of patent applications the work contemplated by such Improvements Change. In the event that Improvements Change is approved, and patents granted or generated under this Agreement and owned by BR. XENCOR incorporated in the Final Working Drawings and/or the Improvements, any additional costs which arise in connection with such Improvements Change shall be responsible for filingpaid by Tenant to Landlord in cash, prosecution in advance (i.e., prior to the commencement of construction of the Improvements or, if construction of the Improvements has already generally commenced, then prior to the commencement of those Improvements subject to the Improvements Change), upon Landlord's request (including but not limited to all costs incurred by Landlord in connection with its review of the Change Notice and maintenance any related documents) (all such costs shall collectively be referred to as the "Change Amount"). In the event Tenant fails to pay the Change Amount within thirty (30) days following Tenant's receipt of patent applications an invoice therefor from Landlord, then Landlord may, at its option, cease work in the Premises until such time as Landlord receives payment of such portion of the Change Amount (and patents granted or generated under such failure to deliver shall be treated as a "Tenant Delay" (as that term is defined in Section 6.2 of this Agreement Work Letter). Tenant may reasonably dispute the amount set forth in such invoice only to the extent the difference between the amount set forth in the invoice and owned the good faith estimate of the actual cost of the work contemplated by XENCORthe Improvements Change is material. c. BII shall keep XENCOR and XENCOR shall keep BII reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Agreement.

Other Improvements. Any Improvements that are neither XENCOR Intellectual Property nor BII Intellectual Property Sublessee acknowledges and agrees that, apart from Sublessor’s Work described above in Section 2.2, Sublessee shall be defined as solely responsible for the design and construction (and the payment therefor) of any and all improvements and alterations desired by or required of Sublessee (“Other Leasehold Improvements” ”). In connection with any Leasehold Improvements not a part of Sublessor’s Work, Sublessee agrees that it shall construct all such Leasehold Improvements in accordance with the further terms of this Sublease and with adherence in all material respects to the plans and specifications therefor, which plans and specifications shall be prepared by Sublessee at its sole cost and expense and shall be jointly owned by BII and XENCOR, with the Parties entitled to practice the same as joint owners, without duty of accounting to the other Party and with the right to license to others without consent of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR’s use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, (i) know-how pertaining Master Lessor’s prior written approval, if and to manufacturing the extent so required under the Master Lease, and (ii) Sublessor’s prior written approval, which approval of biopharmaceuticals generally Sublessor shall not be unreasonably withheld, conditioned or delayed (it being understood and gained during agreed, however, that whether or not Sublessor’s approval is required, Sublessee shall nevertheless submit its plans and specifications (and evidence of Master Lessor’s consent thereto) to Sublessor prior to commencing any work of improvement to the course of performing this Agreement may be freely used by BII in its biopharmaceutical business without any restrictionsPremises, providedand that: (i) Sublessor may, that, notwithstanding promptly after it receives the foregoing, BII may not use any Other Improvement impose the requirement that relates specifically to Sublessee remove all or specifically-identified portions of Leasehold Improvements upon the Product. a. Each Party shall ensure that all of such Party’s (expiration or its Affiliated Company’s) employees or contractors acting on its behalf pursuant to this Agreement are and will be obligated under a binding written agreement or by law to assign to such Party all inventions and rights on the inventions made under this Agreement so that such Party can comply with the terms earlier termination of this AgreementSublease; and (ii) even where Sublessor’s consent is not required, Sublessor may nevertheless disapprove any specific work contemplated by Sublessee’s plans that would interfere with or damage Sublessor’s existing cabling and related equipment located in the Premises). b. Subject to the terms and conditions contained in this Agreement, BII shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by BR. XENCOR shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by XENCOR. c. BII shall keep XENCOR and XENCOR shall keep BII reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Agreement.

Other Improvements. a. Any Improvements that are neither XENCOR not FibroGen Intellectual Property nor BII or BI Pharma Intellectual Property shall be defined as “Other Improvements” and shall be jointly owned by BII BI Pharma and XENCORFibroGen, with the Parties parties entitled to practice the same as joint owners. Any Other Improvements shall be listed on Appendix 10, without duty hereto, which shall be amended from time to time upon the creation of accounting to the other Party and with the right to license to others without consent of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such any additional Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR’s use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, (i) know-how pertaining to manufacturing [ * ] and [ * ] this Definitive Agreement, but [ * ] in the exercise of biopharmaceuticals generally and gained during the course of performing its rights under this Definitive Agreement may be freely used by BII in its biopharmaceutical business without any restrictions[ * ], provided, that, notwithstanding the foregoing, BII BI Pharma may not use any Other Improvement that relates to FibroGen Technology in the production of antibodies to CTGF, including the Product, modifications and derivatives thereof, without FibroGen’s prior written consent, [ * ], provided, however, that it [ * ] for [ * ]. For avoidance of doubt, the Parties agree that the Product [ * ] and those portions of the Process that relate specifically to the ProductProduct or the Product [ * ] are Other Improvements, and FibroGen shall own the Product [ * ], however FibroGen hereby agrees [ * ]. In the event that either BI Pharma or FibroGen desires to file a patent application that contains the other Party’s Technology or Confidential Information and Know How, then the Party filing the application will provide the other Party with a copy of the application for review not less than [ * ] prior to the intended filing date, in order that the other Party may review the application such that it may amend the disclosure of its Technology or Confidential Information and Know-How, and the Party filing the application shall comply with all such requests for amendment. a. Each Party b. BI Pharma hereby grants and agrees to grant to FibroGen a non-exclusive, [ * ] fully sublicensable license to BI Pharma’s interest under all Other Improvements developed, conceived or reduced to practice in the performance of the Authorization to Proceed or this Definitive Agreement to make, have made, use, import, sell, offer for sale and have sold the Product. Process Development and Clinical Supply Agreement, BI Pharma/FibroGen c. The Parties shall ensure that all meet and confer in good faith with regard to establishment and implementation of efforts to pursue patent protection for the Process, including, but not limited to, BI Intellectual Property comprising any part thereof. If BI Pharma elects not to pursue, or intends to abandon or not to file or maintain any patent or patent application in any jurisdiction, reasonable notice of which shall be given to FibroGen, FibroGen shall be entitled to pursue or maintain such Party’s (patent or its Affiliated Company’s) employees or contractors acting on its behalf pursuant to this Agreement are patent application, as applicable, and will be obligated under a binding written agreement or by law BI Pharma agrees to assign to FibroGen all right, title and interest it may have to such Party all items of intellectual property. d. FibroGen hereby grants to BI Pharma and BI Pharma hereby accepts for the purpose of pursuing the Project under this Definitive Agreement a non-exclusive, non-sub-licensable (except to BI Pharma affiliates), royalty-free, license to use the FibroGen Intellectual Property solely to develop the Process, and to use the Process solely for the manufacturing of the Product for clinical purposes in accordance with this Definitive Agreement. e. The Parties shall be obligated to acquire the inventions and rights on the inventions made under this Definitive Agreement so of its employees, consultants, agents and representatives. Employee invention compensation claims arising under the German Law on Employee Inventions (“Arbeitnehmererfindergesetz”) shall be borne by the Party that is exclusively entitled to own such invention, following the allocation of intellectual property as set forth in this Definitive Agreement, provided, that each Party can comply with shall have the terms right to decline to exploit or abandon its rights to any such invention and avoid paying any compensation therefore, provided, in the event that any such invention is subject to the licenses granted by BI Pharma to FibroGen hereunder, then not less than [ * ] prior to notifying the inventing employee(s) of this Agreementits intention to decline to exploit and/or abandon such invention, BI Pharma shall offer to FibroGen the right to pursue protection of and exploit such invention and, if accepted by FibroGen within the [ * ] prior to the intended notification date (or such later date if extended), BI Pharma shall assign all rights to such invention exclusively to FibroGen on an irrevocable, [ * ], and [ * ] to [ * ] under the [ * ]. b. f. Subject to the terms and conditions contained in this Definitive Agreement, BII BI Pharma shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Definitive Agreement and owned by BRBI Pharma. XENCOR FibroGen shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Definitive Agreement and owned by XENCORFibroGen. c. BII g. BI Pharma shall keep XENCOR FibroGen and XENCOR FibroGen shall keep BII BI Pharma reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Definitive Agreement, including, without limitation, compliance with the terms of this Section 9.

Other Improvements. Any Improvements Lessee agrees to pay, as additional rent, a pro rata share of the cost of any major repair or replacement that Lessor and Lessee mutually agree should be made to the Golf Academy. For purposes of this Section 11, “major repairs and replacements” shall mean any repair or replacement costing in excess of $2,500 and the Lessee’s “pro rata share” of such repairs or replacements that are neither XENCOR Intellectual Property nor BII Intellectual Property made during the Initial Term shall be defined as “Other Improvements” calculated by multiplying the cost of the repair or replacement by a fraction, the numerator of which is the number of years (or portions thereof) remaining in the Initial Term and the denominator of which is the number of years of the useful life of any such repair or replacement computed on a straight-line basis. For any such repairs or replacements made during the Extension Term the Lessee’s share shall be jointly owned determined by BII mutual agreement of the parties or, if the parties are unable to reach agreement, by an arbitrator selected pursuant to Section 2(b) who shall make a final and XENCORbinding determination of the Lessee’s share based on then-prevailing custom and practice under similar leases. Lessor shall pay the balance of such cost, with after deducting Lessee’s share of the Parties entitled same, within thirty (30) days of Lessor’s receipt of Lessee’s written request for such reimbursement accompanied by such documentation as may be reasonably requested by Lessor to practice confirm that the repairs and replacements have been completed by Lessee free and clear of any liens for such work. Any sums not paid by Lessor to Lessee within ten (10) days of written notice from Lessee that the same as joint ownersis past due shall bear interest from the date due until paid in full at the rate of twelve percent (12%) per year. If Lessee exercises the Extension Term, without duty then on commencement of accounting the Extension Term Lessee shall pay Lessor the Lessee’s share with respect to the other Party and with Extension Term of any repairs or replacements made during the right to license to others without consent of the other Party. BII shall notify XENCOR within [...***...] days of becoming aware of such Other Improvements. Each Party agrees to assign and hereby assigns to the other Party such right title and interest it may have in any Other Improvements as necessary to effect joint ownership of the Other Improvements by BII and XENCOR. Each Party shall provide reasonable assistance for any action Initial Term, which may be necessary to assign or otherwise transfer such rights to Other Improvements to Parties as joint owners. BII shall have the first right to prosecute and maintain patent rights within the Other Improvements, at its expense, provided that if BII elects not to prosecute or maintain an Other Improvement it shall provide written notice to XENCOR, and XENCOR may elect to take over responsibility for prosecution and maintenance of such Other Improvement, at its own expense, by providing written notice to BII, in which case all rights to such Other Improvement shall be assigned to XENCOR. For the avoidance of doubt, except as expressly stated otherwise in Section 10.3, Parties agree that XENCOR’s use of the Process is always subject to Section 5.2.3, 5.2.4 and 5.2.5. For the avoidance of doubt, (i) know-how pertaining to manufacturing of biopharmaceuticals generally and gained during the course of performing this Agreement may be freely used determined by BII in its biopharmaceutical business without any restrictions, provided, that, notwithstanding the foregoing, BII may not use any Other Improvement that relates specifically to the Product. a. Each Party shall ensure that all of such Party’s (or its Affiliated Company’s) employees or contractors acting on its behalf pursuant to this Agreement are and will be obligated under a binding written mutual agreement or by law arbitration as provided above. If Lessor exercises its right to assign terminate this Lease during the Extension Term, Lessor shall pay to such Party all inventions and rights on the inventions made under this Agreement so that such Party can comply with the terms of this Agreement. b. Subject Lessee an amount equal to the terms portion of Lessee’s share for any major repairs and conditions contained in this Agreement, BII shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by BR. XENCOR shall be responsible for filing, prosecution and maintenance of patent applications and patents granted or generated under this Agreement and owned by XENCORreplacements attributable to the period after such termination. c. BII shall keep XENCOR and XENCOR shall keep BII reasonably informed about prosecution of any patent applications and maintenance of any patents generated under this Agreement.