definiens: ( as defined in Section 101(35A ) of Title 11 of the United States Code ( the ) ) and [COMPANY] her eby acknowledges, on behalf of itself and its Affil iates, that, to the extent described in the [COMPANY] IP, such includes ( a ) the Escrowed Mater ials, and ( b ) the materials described in Section 3.4.3(a ) . [COMPANY] agrees that [COMPANY], as a licensee of such rights u nder this Agreement, will retain and may fully exercise all o f its rights and elections under the Bankruptcy Cod e. [COMPANY] further agrees that, in the event of the commenceme nt of a bankruptcy proceeding by or against [COMPANY] under the Bankruptcy Code, then [COMPANY] will be entitled to ac cess the Escrowed Materials, and same, if not alre ady in its possession, will be promptly delivered to it ( y ) up on any such commencement of a bankruptcy proceeding upon written request therefor, if [COMPANY] fails to perfor m all of its obligations under this Agreement, or ( z ) if not delivered under subsection ( y ) above, following the rejection of this Agreement by or on behalf of [COMPANY] upon w ritten request therefor by [COMPANY], and, with respect to cl auses ( y ) or ( z ), ( i ) the CBD Research Milestones a nd Commercial Scale Milestones hereunder are expressly understood by the Parties to constitute payments f or [COMPANY] ’ services and not in acco rdance with Section 365(n ) of the Bankruptcy Code ; and ( ii ) the Profit - Share Fees hereunder shall be due from [COMPANY] in accordance with Section 365(n ) of the Bankruptcy Code