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Exhibit 10.32
[*] indicates that a confidential portion of the
text of this agreement has been omitted.
AMENDED AND RESTATED
LICENSE AGREEMENT
This AMENDED AND RESTATED LICENSE AGREEMENT (this "
Agreement "), dated effective as of October 27, 2006 (the "
Effective Date of this Agreement "), is entered into by and
between XOMA Ireland Limited, a company with limited liability
organized under the laws of the Republic of Ireland having offices
at Shannon Airport House, Shannon, County Clare, Ireland (with its
Affiliates, " XOMA ") and DYAX Corp., a corporation
organized under the laws of the State of Delaware having offices at
300 Technology Square, Cambridge, Massachusetts 02139, U.S.A. (with
its Affiliates, " DYAX ").
BACKGROUND
A. XOMA is the owner or exclusive licensee of certain patent
rights and know-how relating to bacterial cell expression, and DYAX
wishes to acquire non-exclusive licenses under such patent rights
and know-how; and
B. DYAX is the owner or exclusive licensee of certain patent
rights relating to phage display technologies (generally known as
the Ladner and related patent rights), and XOMA wishes to acquire
non-exclusive licenses under such patent rights; and
C. XOMA and DYAX previously executed a License Agreement, dated
effective as of October 16, 2002 (the " Effective Date of
the Original Agreement "), under which (i) XOMA granted to
DYAX certain non-exclusive licenses to engage in certain research,
development and commercial activities, and (ii) DYAX granted
to XOMA certain non-exclusive licenses to engage in certain
research, development and commercial activities (the " Original
Agreement "); and
D. XOMA has requested that DYAX provide XOMA with certain
quantities of its most recently developed antibody phage display
libraries to use in connection with the license granted herein by
DYAX to XOMA; and
E. DYAX is willing to provide such libraries to XOMA if the
terms of the Original Agreement are amended and restated as set
forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereinafter recited, the parties agree that, from and
after the date hereof, the Original Agreement shall be amended and
restated as follows:
ARTICLE 1.
DEFINITIONS
In this Agreement, the following terms shall have the meanings
set forth in this Article.
1.1 " Affiliate " means any corporation or other entity
which is directly or indirectly controlling, controlled by or under
common control with a party hereto. For purposes of this Agreement,
" control" (including, with correlative meanings, the terms
" controlled" and " controlling ") means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of the subject
corporation or other entity, whether through the ownership of
voting securities, by agreement or otherwise.
1.2 " Antibody Phage Display " means the authorized use
of Licensed Antibody Phage Display Materials to conduct Research
and Development.
1.3 " Change in Control " means, with respect to Dyax
Corp. or XOMA Ltd., any transaction or series of transactions as a
result of which any person or group (as defined under the U.S.
Securities Exchange Act of 1934, as amended) becomes, directly or
indirectly, the beneficial owner of more than fifty percent
(50%) of the total voting power of such entity’s equity
securities or otherwise gains control of such entity.
1.4 " Commercial Antibody Phage Display Business " means,
with respect to immunoglobulin or antibody phage display services,
immunoglobulin or antibody phage display libraries, immunoglobulin
or antibody phage display products or immunoglobulin or antibody
phage display materials, the out-licensing, commercial manufacture,
sale, offer for sale, import for sale or export for sale of such
immunoglobulin or antibody phage display services, libraries,
products and materials.
1.5 " Confidential Information " means any proprietary or
confidential information or material disclosed by a party to the
other party pursuant to this Agreement, which is (i) disclosed
in tangible form hereunder and is designated thereon as
"Confidential" at the time it is delivered to the receiving party,
or (ii) disclosed orally hereunder and identified as
confidential or proprietary when disclosed and such disclosure of
confidential information is confirmed in writing within thirty
(30) days by the disclosing party.
1.6 " Development Partner " means a Third Party from whom
a party either in- licenses a target for development and/or
commercialization by the in-licensing party or with whom a party
shares the economic risk of development or commercialization of a
target or product being developed or commercialized on behalf of
the applicable party.
1.7 " Dispose " means to transfer, assign, lease, or in
any other fashion dispose of control, ownership or possession, but
shall not mean to license or sell. " Disposition " shall
have the correlative meaning.
1.8 " DYAX Collaborator " means any person or entity who
is an authorized end-user of Licensed Antibody Phage Display
Materials, the intended recipient of Licensed Immunoglobulins or
Licensed Immunoglobulin Information transferred from DYAX and/or a
person or entity on whose behalf DYAX knowingly engages in Antibody
Phage Display. Except as expressly set forth on Schedule
2.9(i) .
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no person or entity shall be deemed to be a DYAX
Collaborator if such person or entity is engaged in a Commercial
Antibody Phage Display Business unless, pursuant to a written
agreement (other than this Agreement), executed after the Effective
Date of the Original Agreement, XOMA has granted to such person or
entity a valid license or covenant not to sue under the XOMA Patent
Rights which explicitly extends to the activities identified in
this third to last sentence of Section 1.8. XOMA shall provide
DYAX prompt written notice of those written agreements or covenants
not to sue which satisfy the requirements of the prior sentence. No
person or entity may claim the status of DYAX Collaborator with
respect to any acts or activities which are unrelated to the use of
Licensed Antibody Phage Display Materials provided by
DYAX.
1.9 " DYAX Patent Rights " means the patent applications
and patents listed on Schedule 1.9 hereto and, solely to the
extent any Valid Claim would cover or be included in the license
grants provided for herein, all divisions, continuations,
continuations-in-part, applications claiming priority thereto, and
substitutions thereof; all foreign patent applications
corresponding to the preceding applications; all U.S. and foreign
patents issuing on any of the preceding applications, including
extensions, reissues and re-examinations; and any other patent
rights owned or licensed by DYAX, whether now existing or obtained
in the future, which DYAX has the right to license or sublicense
and which would be infringed by the activities of XOMA contemplated
hereunder but for this Agreement. DYAX Patent Rights shall also
include (i) any improvements of the foregoing that are owned
or controlled by DYAX and (ii) any patents or patent
applications, whether now existing or obtained in the future, owned
or controlled by DYAX containing a claim that is dominating over
the foregoing patent rights (i.e., is necessarily infringed by the
practicing of a claim in one of the foregoing applications).
1.10 " First Commercial Sale " means the initial transfer
by DYAX (either directly or through a Third Party, including
without limitation any joint venture or similar arrangement in
which DYAX and/or a Development Partner of DYAX is a participant)
of a Product for value and not for demonstration, testing or
promotional purposes.
1.11 " Immunoglobulin " means any molecule, including
without limitation, full immunoglobulin molecules (e.g., IgG, IgM,
IgE, IgA and IgD molecules) and ScFv, Fv and Fab molecules, that
has an amino acid sequence by virtue of which it specifically
interacts with an antigen and wherein that amino acid sequence
consists essentially of a functionally operating region of an
antibody variable region including, without limitation, any
naturally occurring or recombinant form of such a molecule.
1.12 " Licensed Antibody Phage Display Materials " means
(i) any collection or library of polynucleotide sequences,
created by and under the exclusive control of DYAX, which encodes
at least one Immunoglobulin and which is contained in filamentous
bacteriophage and/or bacteriophage or phagemid cloning vectors
capable of propagation in bacteria; or (ii) any collection or
library of bacteriophage, created by or under the exclusive control
of DYAX, wherein an Immunoglobulin is expressed as a fusion protein
comprising an Immunoglobulin or at least a functionally operating
region of an antibody variable region and an outer surface
polypeptide of a bacteriophage. For the avoidance of doubt, and
without expanding the definition thereof, specifically excluded
from the definition of Licensed Antibody Phage Display Materials
are (x) any article of manufacture or composition of matter
suitable for display,
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expression or secretion of an Immunoglobulin in
or from any organism or system other than bacteria and (y) any
materials or composition of matter otherwise meeting the definition
of Licensed Antibody Phage Display Materials but created by or
under the control of any entity, other than DYAX, engaged in a
Commercial Antibody Phage Display Business; provided, that,
notwithstanding the foregoing, any materials or composition of
matter otherwise meeting the definition of Licensed Antibody Phage
Display Materials but created by or under the exclusive control of
a DYAX Collaborator shall constitute Licensed Antibody Phage
Display Materials, but only to the extent derived by such DYAX
Collaborator exclusively from Licensed Antibody Phage Display
Materials created by or under the exclusive control of DYAX and
properly transferred by DYAX to such DYAX Collaborator in
accordance with the applicable provisions of this Agreement and
such DYAX Collaborator acknowledges that the transfer restrictions
and other provisions hereof apply thereto.
1.13 " Licensed Immunoglobulin " means any Immunoglobulin
discovered, isolated or characterized by DYAX or a DYAX
Collaborator (as defined above) through the use of Licensed
Antibody Phage Display Materials.
1.14 " Licensed Immunoglobulin Information " means any
data, know-how or other information relating, concerning or
pertaining to a Licensed Immunoglobulin, including, without
limitation, data, know-how or other information characterizing or
constituting such Licensed Immunoglobulin’s polynucleotide or
amino acid sequence, purported function or utility, antigen binding
affinity, or physical or biochemical property.
1.15 " Net Sales " means, solely with respect to sales by
DYAX (either directly or through a Third Party, including without
limitation any joint venture or similar arrangement in which DYAX
and/or a Development Partner of DYAX is a participant), the gross
amount invoiced by DYAX (or such joint venture or similar
arrangement) to an independent Third Party less the following
items:
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(a)
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Trade, cash and quantity discounts actually
allowed and taken directly with respect to such sales;
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(b)
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Excises, sales taxes or other taxes imposed upon
and paid directly with respect to such sales (excluding national,
state or local taxes based income);
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(c)
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Amounts repaid or credited by reason of
rejections, defects, recalls or returns or because of rebates or
retroactive price reduction; and
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(d)
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Freight, transportation and insurance.
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Net Sales shall not include any consideration
received by DYAX (or any such joint venture or similar arrangement)
in respect of the sale, use or other disposition of such Product in
a country as part of a clinical trial prior to the receipt of all
regulatory approvals required to commerce full commercial sales of
such Product in such country, except sales under "treatment INDs,"
"named patient sales," "compassionate use sales," or their
equivalents pursuant to which DYAX (or any such joint venture or
similar arrangement) is
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entitled, under applicable laws, regulations and
regulatory policies, to recover costs incurred in providing such
Product to patients.
1.16 " Product " means any composition of matter or
article of manufacture, including without limitation any
diagnostic, prophylactic or therapeutic product, which
(a) contains a Licensed Immunoglobulin; or (b) was
discovered or created by, arose out of or is related to use of
Licensed Antibody Phage Display Materials or the conduct of
Antibody Phage Display by DYAX or a DYAX Collaborator; or
(c) is sold by or on behalf of DYAX or a DYAX Collaborator
under conditions which, if unlicensed, would constitute
infringement of the XOMA Patent Rights.
1.17 " Research and Development " means the
identification, selection, isolation, purification,
characterization, study and/or testing of an Immunoglobulin for any
purpose, including, without limitation, any activities relating to
the discovery and development of human therapeutic or diagnostic
products. Included within the definition of "Research and
Development" shall be all in vitro screening or assays
customarily performed in pre-clinical and clinical research and
uses associated with obtaining FDA or equivalent agency regulatory
approval. Notwithstanding anything to the contrary contained
herein, "Research and Development" shall not include use of the
XOMA Expression Technology in commercial or industrial manufacture
or any activities solely directed to the creation of such
capacities.
1.18 " Research Quantities " means those quantities of an
Immunoglobulin reasonably required for Research and Development
purposes.
1.19 " Third Party " means any person or entity other
than DYAX or XOMA.
1.20 " Valid Claim " means (i) a claim of an issued
and unexpired patent included within the DYAX Patent Rights or the
XOMA Patent Rights, as the case may be, which has not been held
invalid in a final decision of a court of competent jurisdiction
from which no appeal may be taken, and which has not been
disclaimed or admitted to be invalid or unenforceable through
reissue or otherwise, or (ii) a claim of a pending patent
application within the DYAX Patent Rights or the XOMA Patent
Rights, as the case may be.
1.21 " XOMA Expression Technology " means any method,
composition of matter or article of manufacture suitable for the
expression of a functional Immunoglobulin in a prokaryote.
1.22 " XOMA Field of Use " means all fields.
1.23 " XOMA Know-How " means unpatented and/or
unpatentable technical information, including ideas, concepts,
inventions, discoveries, data, designs, formulas, specifications,
procedures for experiments and tests and other protocols, results
of experimentation and testing, fermentation and purification
techniques, and assay protocols, whether now existing or obtained
in the future, owned by XOMA which XOMA has the right to license or
sublicense and which may be necessary for the practice of the
applicable XOMA Patent Rights or which would be misappropriated by
the activities of DYAX or the
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DYAX Collaborators contemplated hereunder but for
this Agreement. XOMA Know-How shall not include the XOMA Patent
Rights. All XOMA Know-How shall be confidential information of
XOMA.
1.24 " XOMA Patent Rights " means the patent applications
and patents listed on Schedule 1.24 hereto and, solely to
the extent any Valid Claim would cover or be included in the
license grants provided for herein, all divisions, continuations,
continuations-in-part, applications claiming priority thereto, and
substitutions thereof; all foreign patent applications
corresponding to the preceding applications; all U.S. and foreign
patents issuing on any of the preceding applications, including
extensions, reissues and re-examinations; and any other patent
rights owned by XOMA which XOMA has the right to license or
sublicense and which would be infringed by the activities
contemplated hereunder but for this Agreement. XOMA Patent Rights
shall also include (i) any improvements of the foregoing that
are owned or controlled by XOMA and (ii) any patents or patent
applications, whether now existing or obtained in the future, owned
or controlled by XOMA containing a claim that is dominating over
the foregoing patent rights (i.e., is necessarily infringed by the
practicing of a claim in one of the foregoing applications).
The above definitions are intended to encompass the defined
terms in both the singular and plural forms.
ARTICLE 2. XOMA GRANT OF RIGHTS TO
DYAX
2.1 License Grants . Subject to the other terms and
conditions of this Agreement, XOMA hereby grants to DYAX a
worldwide, non-exclusive, non-transferable (other than as provided
in Section 9.2) license, without any right to sublicense,
under the XOMA Patent Rights and the XOMA Know-How to:
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(a)
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on its own behalf and on behalf of a DYAX
Development Partner or DYAX Collaborator, make or have made
Licensed Antibody Phage Display Materials;
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(b)
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on its own behalf and on behalf of a DYAX
Collaborator, transfer Licensed Antibody Phage Display
Materials;
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(c)
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on its own behalf and on behalf of a DYAX
Development Partner or DYAX Collaborator, conduct Antibody Phage
Display to identify and isolate Licensed Immunoglobulin;
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(d)
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on its own behalf and on behalf of a DYAX
Development Partner or DYAX Collaborator, use the XOMA Expression
Technology in connection with the use of Licensed Antibody Phage
Display Materials to make or have made Research Quantities of
Licensed Immunoglobulin;
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(e)
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on its own behalf and on behalf of a DYAX
Development Partner or DYAX Collaborator, use Licensed
Immunoglobulin or Licensed Immunoglobulin Information to research
and develop, make, have made, use, offer for sale, sell and
have
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sold, import and have imported Products for use
in the treatment, prophylaxis, diagnosis or monitoring of a human
disease state or condition; and
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(f)
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on its own behalf and on behalf of a DYAX
Development Partner, to make, have made, use, offer for sale, sell
and have sold, import and have imported Products for use in the
treatment, prophylaxis, diagnosis or monitoring of a human disease
state or condition.
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For the sake of clarity, (i) the licenses
granted in Section 2.1 are personal to DYAX and are to be used
on behalf of any DYAX Collaborator or Development Partner of DYAX
only in respect of or in connection with the activities that such
DYAX Collaborator or Development Partner of DYAX is engaged in that
are the basis for meeting the definition of DYAX Collaborator or
Development Partner of DYAX, as the case may be, and not any other
activities, and (ii) without limiting the foregoing, the
license granted in Section 2.1(f) is not to be used on behalf
of any DYAX Collaborator or any other Third Party that is not a
Development Partner of DYAX.
2.2 XOMA Transfer to DYAX . Within thirty (30) days
of the Effective Date of this Agreement, XOMA shall transfer to
DYAX, at a reasonable place and time of DYAX’s direction, the
materials identified on Schedule 2.2 .
2.3 Covenant Not To Sue . In partial consideration for
the payments set forth in Sections 4.1 and 4.2, XOMA covenants that
it shall not initiate or permit any Third Party over whom it has
control to initiate or assist in any way in the initiation or
prosecution of any action asserting a claim of infringement under
the XOMA Patent Rights or misappropriation of the XOMA Know-How
against DYAX, any Development Partner of DYAX or any DYAX
Collaborator solely to the extent reasonably necessary to permit
the authorized use of Licensed Antibody Phage Display Materials,
Licensed Immunoglobulins or Licensed Immunoglobulin Information for
activities or in a manner otherwise permitted under the provisions
of this Agreement. The parties agree that the covenant not to sue
provided by this Section 2.3 (i) is a covenant that
transfers with any assignment or sale of, or grant of an exclusive
license (with the right to enforce) under, the applicable XOMA
Patent Rights by XOMA and (ii) without limiting or expanding
the provisions of Section 9.2, shall be binding upon any
permitted successors or assigns of XOMA. XOMA agrees to use
commercially reasonable efforts to assist DYAX in recording in a
form reasonably acceptable to XOMA the covenant not to sue provided
by this Section 2.3, as permitted, with the U.S. Patent and
Trademark Office. The covenant not to sue provided by this
Section 2.3:
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(a)
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shall not extend to the use of the XOMA
Expression Technology to make any amount of a Licensed
Immunoglobulin or Product other than Research Quantities;
provided, however, that this limitation shall not preclude
the manufacture, in commercial quantities, of a Licensed
Immunoglobulin discovered using the XOMA Expression Technology in
accordance with this Agreement when produced in a production system
other than a prokaryote;
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(b)
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is personal to DYAX, such Development Partner of
DYAX and such DYAX Collaborator and cannot be assigned or
transferred;
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(c)
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does not constitute a release or waiver of past,
present or future infringement of the XOMA Patent Rights or
misappropriation of the XOMA Know-How by DYAX or any Third Party,
including, without limitation, any DYAX Collaborator acting outside
of the scope of the written agreement with DYAX provided for in
Section 2.5; and
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(d)
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shall become void and without effect as to any
entity or person who claims its benefit but fails to materially
discharge or comply with any term of its written agreement with
DYAX provided for in Section 2.5.
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2.4 No Implied Rights . Only the rights
and licenses granted pursuant to the express terms of this
Agreement shall be of any legal force or effect. No license or
other rights shall be deemed to have been granted to DYAX, a
Development Partner of DYAX or a DYAX Collaborator other than as
expressly provided for in this Agreement. For the avoidance of
doubt, the grants of rights made pursuant to Sections 2.1 and 2.3
do not include, and expressly exclude, the following:
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(a)
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any right or license under the XOMA Patent Rights
and the XOMA Know-How to engage in any activities on behalf of or
in collaboration with any Third Party, other than a Development
Partner of DYAX or a DYAX Collaborator;
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(b)
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any right or license under the XOMA Patent Rights
and the XOMA Know-How to use the XOMA Expression Technology to make
or have made any amount of a Licensed Immunoglobulin or Product
other than Research Quantities ; provided, however, that
DYAX or, as applicable, a DYAX Collaborator shall be permitted to
make or have made any Licensed Immunoglobulin by any means of its
selection other than those which otherwise infringe a Valid Claim
of the XOMA Patent Rights or utilize the XOMA Know-How;
and/or
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(c)
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any right to release any Third Party, including a
Development Partner of DYAX or a DYAX Collaborator, from any claim
of infringement under the XOMA Patent Rights.
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2.5 Transfer Restrictions .
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(i)
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that the "first sale" doctrine does not apply to
any such Disposition;
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(ii)
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to further Dispose of Transferred Materials only
to a Third Party who otherwise meets the definition of a
Development Partner or DYAX Collaborator and who executes a written
agreement in which its undertakes all of the obligations applied to
the transferring party, provided , however , that
this Section 2.5(a)(ii) shall not apply to the Disposition of
any Licensed Immunoglobulin where such Third Party is not a Dyax
Development Partner and no royalty is or will otherwise be due
under Section 4.1;
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(iii)
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that the covenant not to sue provided by
Section 2.3 does not extend use of the XOMA Expression
Technology to make any amount of a Licensed Immunoglobulin or
Product other than Research Quantities;
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(iv)
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that the covenant not to sue provided by
Section 2.3 does not constitute a release or waiver of past,
present or future infringement of the XOMA Patent Rights or
misappropriation of the XOMA Know-How by such Third
Party;
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(v)
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that the covenant not to sue provided by
Section 2.3 shall be subject to such Third Party’s
compliance with Section 8.4;
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(vi)
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that the covenant not to sue provided by
Section 2.3 is personal to such Third Party (as a DYAX
Collaborator or DYAX Development Partner) and cannot be assigned or
transferred;
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(vii)
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that the covenant not to sue provided by
Section 2.3 shall become void and without effect as to any
entity or person who claims its benefit but fails to materially
discharge or comply with the foregoing provisions; and
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(viii)
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that XOMA shall be an intended third party
beneficiary with respect to the foregoing provisions.
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(b) Without expanding or limiting the scope of
the licenses and covenants not to sue granted by this Agreement,
the provisions of Section 2.5(a) requiring a written agreement
prior to any Disposition of any Transferred Materials shall not
apply to a transfer of (i) a Licensed Immunoglobulin
discovered by Dyax to a Third Party who is not a Dyax Development
Partner where the making, selling, offering for sale, importing or
exporting of such Licensed Immunoglobulin will occur under
conditions which will not give rise to any obligation to pay XOMA
any royalties under Section 4.1, or (ii) a Licensed
Immunoglobulin discovered exclusively by Dyax to any Third Party
where such Disposition is made pursuant to a bona fide material
transfer agreement that confers no commercial rights to such Third
Party for the sole purpose of permitting such Third Party to
evaluate the transferred Licensed Immunoglobulin; provided ,
howeve r, that upon the execution of any subsequent
agreement relating to such Licensed Immunoglobulin, as applicable,
the provisions of Section 2.5(a) shall be incorporated
therein.
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2.6 Reports, Records and
Audits.
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(a) Thirty (30) days after the end of each calendar
quarter, commencing with the first calendar quarter commencing
after the Effective Date of the Original Agreement, DYAX shall
deliver to XOMA a written report which shall specify the name,
address and contact person for each and every DYAX Collaborator and
any person or entity receiving Licensed Antibody Phage Display
Materials or a Licensed Immunoglobulin. The reports delivered by
DYAX to XOMA pursuant to this Section 2.6(a) shall be
Confidential Information of DYAX.
(b) Not later than thirty (30) days after the end of each
calendar year, commencing with the first calendar year to commence
after the Effective Date of the Original Agreement, as and to the
extent publicly disclosed by DYAX (whether in press releases,
government filings or otherwise), DYAX shall deliver to XOMA
written materials pertaining to the current status of activities or
compositions of matter as to which DYAX claims the right of license
hereunder.
(c) DYAX shall maintain records fully and properly reflecting
those activities to be reported to XOMA pursuant to Sections 2.6(a)
and (b) (the " Records" ), in sufficient detail and in
good scientific manner appropriate for patent, regulatory and
manufacturing purposes for at least three (3) years. Upon the
written request of XOMA and not more than once in each calendar
year, DYAX shall permit an independent consultant appointed by
XOMA, at XOMA’s expense, to have access during normal
business hours to such of the records of DYAX as may be reasonably
necessary to verify compliance with the terms of this Agreement, as
well as the accuracy of the reports hereunder. DYAX shall certify
any statements by DYAX personnel as to their accuracy and
correctness. The consultant shall not be permitted to see or
receive any specific information concerning targets or antibodies
of either DYAX or any of its collaborators and shall disclose to
XOMA only the results and conclusions of its review and the
specific details concerning any discrepancies. No other information
shall be shared by the consultant without the prior consent of DYAX
unless disclosure is required by law, regulation or judicial
order.
2.7 Ownership; Enforcement . At all times XOMA will
retain ownership of the XOMA Patent Rights and may use and
commercialize such XOMA Patent Rights itself or with any Third
Party. XOMA retains the right, at its sole discretion, to enforce,
maintain and otherwise protect the XOMA Know-How and the XOMA
Patent Rights. In addition to the requirements of Section 2.6,
DYAX shall give XOMA prompt notice of any infringement of any of
the XOMA Patent Rights by a Third Party engaging in a Commercial
Antibody Phage Display Business which comes to DYAX’s
attention during the term of this Agreement. DYAX will reasonably
cooperate with XOMA with respect to any actions XOMA may choose to
take related to the enforcement, maintenance or protection of the
XOMA Patent Rights.
2.8 Oppositions and/or Appeals to Oppositions . DYAX
hereby agrees not to enter into any opposition to and/or appeal
from any decision by the patent authorities of any country on the
XOMA Patent Rights and shall not assist or otherwise cooperate with
another party in any such opposition or appeal.
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2.9 Release From Past Infringement . XOMA
releases DYAX from any claims, demands, and rights of action
arising out of and/or based upon any act or omission committed by
DYAX prior to the Effective Date of the Original Agreement,
including, without limitation, claims of infringement under the
XOMA Patent Rights (the " Release ") and XOMA releases those
Third Parties identified upon Schedule 2.9(i) from any
claims, demands, and rights of action arising out of and
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