PRODUCTS) UNDER ANY PATENT RIGHTS OWNED OR OTHERWISE
CONTROLLED BY SUCH LICENSEES OR SUBLICENSEES OF BAYER THAT COVER ANY INVENTIONS
MADE THROUGH THE USE OF GENAISSANCE IP RIGHTS OR BAYER RESULTING IP, IN THE
EXERCISE BY GENAISSANCE (OR ITS LICENSEES OR SUBLICENSEES) OF ITS RIGHTS UNDER
THE LICENSE GRANT SET FORTH IN SECTION 3.3.1 TO RESEARCH, DEVELOP OR
COMMERCIALIZE ANY [**] DRUG PRODUCT.
29
3.9
UNITARY CONTRACT; RIGHTS UPON REJECTION.
3.9.1
UNITARY CONTRACT.
THE PARTIES ACKNOWLEDGE AND
STIPULATE THAT THIS AGREEMENT AND THE LICENSES AND OTHER RIGHTS GRANTED UNDER
THIS AGREEMENT ARE AN INTEGRATED UNITARY CONTRACT AND ARE PART OF A SINGLE
TRANSACTION AMONG THE PARTIES.
THE PARTIES FURTHER ACKNOWLEDGE AND STIPULATE
THAT IN THE EVENT THAT A PARTY BECOMES A DEBTOR IN A PROCEEDING UNDER ANY
CHAPTER OF THE UNITED STATES BANKRUPTCY CODE, 11 U.S.C. §101 ET SEQ., AS AMENDED
(THE "BANKRUPTCY CODE"), SUCH PARTY (OR ANY SUCCESSOR IN INTEREST, INCLUDING ANY
TRUSTEE AS SUCH TERM IS USED WITHIN SECTION 365 OF THE BANKRUPTCY CODE) MAY ONLY
ASSUME OR REJECT THIS AGREEMENT IN ITS ENTIRETY.
NOTWITHSTANDING THE FOREGOING,
THAT PORTION OF THIS AGREEMENT THAT CONSTITUTES A SECURITY AGREEMENT IS
NON-EXECUTORY AND SHALL NOT BE SUBJECT TO REJECTION IN THE EVENT OF A
BANKRUPTCY.
3.9.2
RIGHTS UPON REJECTION.
THE PARTIES ACKNOWLEDGE AND
STIPULATE THAT THIS AGREEMENT IS INTENDED TO AND SHALL BE DEEMED TO BE A LICENSE
OF RIGHTS TO INTELLECTUAL PROPERTY WITHIN THE MEANING OF SECTION 365(N) OF THE
BANKRUPTCY CODE.
IN THE EVENT THAT ANY PARTY REJECTS THIS AGREEMENT UNDER WHICH
SUCH PARTY IS A LICENSOR OF SUCH RIGHTS TO INTELLECTUAL PROPERTY, THE OTHER
PARTY SHALL BE ENTITLED TO MAKE THE ELECTION SET FORTH IN SECTION 365(N)(1)(A)
OR (B) OF THE BANKRUPTCY CODE IN ACCORDANCE THEREWITH.
IN THE EVENT THAT THE
NON-REJECTING PARTY ELECTS TO RETAIN ITS RIGHTS, AS DESCRIBED IN SECTION
365(N)(1)(B), THE NON-REJECTING PARTY SHALL CONTINUE TO MAKE ALL ROYALTY
PAYMENTS DUE UNDER THIS AGREEMENT FOR THE DURATION OF THE TERM OF THIS
AGREEMENT, BUT ALL SUCH ROYALTY PAYMENTS SHALL REMAIN SUBJECT TO THE
ROYALTY-PAYING PARTY'S RIGHT TO RECOUP ANY DAMAGES ARISING FROM OR RELATING TO
THE OTHER PARTY'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT (BUT
EXCLUDING ANY RIGHT TO OFFSET DAMAGES ARISING SOLELY FROM THE REJECTION OF THIS
AGREEMENT) WITHOUT PREJUDICE TO ANY AND ALL OTHER RIGHTS OR REMEDIES AVAILABLE
TO SUCH PARTY, WHETHER ARISING UNDER SECTION 365(N) OF THE BANKRUPTCY CODE, THIS
AGREEMENT, THE SECURITY INTEREST GRANTED TO BAYER HEREUNDER, OR AT EQUITY OR IN
LAW.
3.10
TERMS OF LICENSES AND SUBLICENSES GRANTED BY
PARTIES.
EACH LICENSE OF BAYER RESULTING IP AND EACH SUBLICENSE OF GENAISSANCE
IP RIGHTS GRANTED BY BAYER TO A THIRD PARTY SHALL PROVIDE FOR ASSIGNMENT THEREOF
TO GENAISSANCE AS REQUIRED PURSUANT TO SECTION 9..4.1, SHALL REQUIRE COMPLIANCE
BY THE LICENSEE OR SUBLICENSEE WITH THE TERMS OF THIS AGREEMENT WITH RESPECT TO
SALES OF PRODUCTS BY SUCH LICENSEE OR SUBLICENSEE AND SHALL PROVIDE THAT
GENAISSANCE SHALL HAVE NO LIABILITY FOR ANY OBLIGATIONS OF BAYER UNDER SUCH
LICENSE OR