definiens: [COMPANY] Licensee " means, solely with respect to Licensed Produ9~ discov- ., ered or modified by [COMPANY] through the use of any of the Transferred Materials Or the prac­tice of any of the Licensed Patent Rights, any Third party to whom [COMPANY] licenses or grants rights, as part of a bona fide collaboration, development, commercialization or marketing ar­rangement, to develop, commercialize, market or distribute any such Licensed Product . No Third Party shall be a [COMPANY] Licensee if ( a ) such Third Party is at the time of determination either misappropriating the Licensed Know - How or infringing any of the Licensed Patent Rights or ( b ) such [COMPANY] Licensee does not take material economic risk with respect to the devel­opment or commercialization of the Licensed Product that is the subject of the applicable ar­rangement ; provided, however, that the foregoing clause ( b ) shall not prevent [COMPANY] from using any Third Party as a distributor or selling agent . All arrangements with a [COMPANY] Li­censee shall be pursuant to a written agreement, which will incorporate the applicable provisions of this Agreement and provide that XOMA and its Affiliates shall be third party beneficiaries thereof