FIELD, INCLUDING AI-850TM
CLINICAL DATA,; PROVIDED, HOWEVER, THAT ACUSPHERE MAY RETAIN CONFIDENTIAL COPIES
OF THE AI-850TM CLINICAL DATA TO DEMONSTRATE ITS COMPLIANCE WITH APPLICABLE LEGAL
REQUIREMENTS.
DURING THE TERM OF THIS AGREEMENT, CEPHALON SHALL HAVE ACCESS, AS
REASONABLY REQUESTED BY CEPHALON, TO PERSONNEL OF ACUSPHERE AND ITS AFFILIATES
AT REASONABLE TIMES DURING NORMAL BUSINESS HOURS AND UPON PRIOR NOTICE FOR
DISCUSSIONS RELATING TO REGULATORY, SCIENTIFIC, MEDICAL AND OTHER MATTERS
RELATING TO PRECLINICAL AND CLINICAL DATA RELATED TO HDDS TECHNOLOGYTM IN THE
FIELD, INCLUDING THE AI-850TM CLINICAL DATA. IN ADDITION, TO THE EXTENT
REASONABLY REQUESTED BY CEPHALON, ACUSPHERE SHALL PROVIDE ACCESS TO ITS, AND ITS
AFFILIATES, FACILITIES, PERSONNEL AND RECORDS IN CONNECTION WITH ANY REGULATORY
FILINGS OR SUBMISSIONS THAT CEPHALON MAY MAKE WITH RESPECT TO AI-850TM.
AFTER
THE TRANSFER OF THE PRECLINICAL AND CLINICAL DATA RELATED TO HDDS TECHNOLOGYTM IN
THE FIELD, INCLUDING AI-850 CLINICAL DATA TO CEPHALON, ACUSPHERE SHALL HAVE NO
RIGHT, TITLE OR INTEREST IN SUCH DATA.
SECTION 2.4
SUBLICENSEES.
CEPHALON SHALL
BE ENTITLED TO GRANT ONE OR MORE SUBLICENSES UNDER THE LICENSES GRANTED PURSUANT
TO SECTION 2.1.
SUCH SUBLICENSES SHALL BE SUBJECT AND SUBORDINATE TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
SECTION 2.5
SECTION 365(N) OF THE
BANKRUPTCY CODE.
ALL RIGHTS AND LICENSES GRANTED UNDER OR PURSUANT TO THIS
AGREEMENT ARE, AND SHALL OTHERWISE BE, DEEMED TO BE, FOR PURPOSES OF
SECTION 365(N) OF THE BANKRUPTCY CODE, LICENSES OF RIGHTS TO "INTELLECTUAL
PROPERTY" AS DEFINED UNDER SECTION 101(35A) OF THE BANKRUPTCY CODE.
THE PARTIES
SHALL RETAIN AND MAY FULLY EXERCISE ALL OF THEIR RESPECTIVE RIGHTS AND ELECTIONS
UNDER THE BANKRUPTCY CODE.
3
SECTION 2.6
RIGHT OF FIRST NEGOTIATION.
ACUSPHERE RETAINS ALL OF RIGHTS TO ANY PATENT RIGHTS RELATING TO THE HDDS
TECHNOLOGYTM IN THE FIELD THAT ARE CREATED BY ACUSPHERE OR ITS AFFILIATES AFTER
THE EFFECTIVE DATE ("NEW PATENT RIGHTS").
EACH TIME ACUSPHERE FILES A PATENT
APPLICATION CONTAINED IN THE NEW PATENT RIGHTS, ACUSPHERE SHALL NOTIFY CEPHALON
IN WRITING.
DURING THE PERIOD BEGINNING UPON CEPHALON'S RECEIPT OF EACH SUCH
NOTICE AND ENDING ONE HUNDRED EIGHTY (180) DAYS THEREAFTER (THE "OPTION
PERIOD"), CEPHALON SHALL HAVE THE OPTION TO NOTIFY ACUSPHERE IN WRITING THAT IT
DESIRES TO ENTER INTO AN EXCLUSIVE LICENSE TO SUCH NEW PATENT RIGHTS.
IF
CEPHALON SO NOTIFIES ACUSHERE, THEN FOR A PERIOD OF NINETY (90) DAYS AFTER SUCH
NOTICE, ACUSPHERE SHALL EXCLUSIVELY NEGOTIATE WITH CEPHALON IN GOOD FAITH A
DEFINITIVE AGREEMENT FOR SUCH EXCLUSIVE LICENSE CONTAINING CUSTOMARY
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS, SATISFACTORY IN FORM AND
SUBSTANCE TO THE PARTIES.
SECTION 2.7
LICENSE PAYMENT.
AS FULL
CONSIDERATION FOR THE LICENSES GRANTED IN SECTION 2.1, WITHIN FIVE (5) DAYS
AFTER THE EFFECTIVE DATE, CEPHALON SHALL MAKE A ONE-TIME LICENSE PAYMENT BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO ACUSPHERE OF TEN MILLION U.S. DOLLARS
($10,000,000).
SECTION 2.8
NO ROYALTIES.
UPON PAYMENT OF
THE AMOUNT SET FORTH IN SECTION 3.1, THE LICENSES GRANTED IN SECTION 2.1 SHALL
BE FULLY PAID-UP.
NO ROYALTY PAYMENTS SHALL BE DUE IN CONNECTION WITH THE
LICENSED PATENT RIGHTS OR THE LICENSED