of the Commission pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Act of
1934.
47
LICENSES GRANTED UNDER THIS AGREEMENT ARE, AND SHALL BE DEEMED TO BE, FOR
PURPOSES OF SECTION 365(N) OF THE UNITED STATES BANKRUPTCY CODE, LICENSES OF
RIGHTS TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION 101(56) OF THE UNITED
STATES BANKRUPTCY CODE.
THE PARTIES AGREE THAT IN THE EVENT OF THE COMMENCEMENT
OF A BANKRUPTCY PROCEEDING BY OR AGAINST ONE PARTY HEREUNDER UNDER THE UNITED
STATES BANKRUPTCY CODE, THE OTHER PARTY SHALL BE ENTITLED TO COMPLETE ACCESS TO
ANY SUCH INTELLECTUAL PROPERTY, AND ALL EMBODIMENTS OF SUCH INTELLECTUAL
PROPERTY, PERTAINING TO THE RIGHTS GRANTED IN THE LICENSES HEREUNDER OF THE
PARTY BY OR AGAINST WHOM A BANKRUPTCY PROCEEDING HAS BEEN COMMENCED, SUBJECT,
HOWEVER, TO PAYMENT OF THE MILESTONE AMOUNTS AND ROYALTIES SET FORTH IN THIS
AGREEMENT THROUGH THE EFFECTIVE DATE OF ANY TERMINATION HEREUNDER.
8.3
EFFECTS OF TERMINATION.
UPON ANY TERMINATION
OF THIS AGREEMENT BY IMMUNOGEN UNDER SECTION 8.2(B), AS OF THE EFFECTIVE DATE OF
SUCH TERMINATION, ALL RELEVANT LICENSES AND SUBLICENSES GRANTED BY IMMUNOGEN TO
BIOGEN IDEC HEREUNDER SHALL TERMINATE AUTOMATICALLY.
NOTWITHSTANDING THE
FOREGOING, (A) NO SUCH TERMINATION OF THIS AGREEMENT SHALL BE CONSTRUED AS A
TERMINATION OF ANY VALID SUBLICENSE OF ANY SUBLICENSEE HEREUNDER, AND THEREAFTER
EACH SUCH SUBLICENSEE SHALL BE CONSIDERED A DIRECT LICENSEE OF IMMUNOGEN,
PROVIDED, THAT, (I) SUCH SUBLICENSEE IS THEN IN FULL COMPLIANCE WITH ALL TERMS
AND CONDITIONS OF ITS SUBLICENSE, (II) ALL ACCRUED PAYMENTS OBLIGATIONS TO
IMMUNOGEN HAVE BEEN PAID, AND (III) SUCH SUBLICENSEE AGREES TO ASSUME ALL
OBLIGATIONS OF BIOGEN IDEC UNDER THIS AGREEMENT WITHIN TEN (10) BUSINESS DAYS OF
IMMUNOGEN HAVING GIVEN NOTICE TO THE SUBLICENSEE OF SUCH TERMINATION AND OF ALL
OBLIGATIONS OF BIOGEN IDEC UNDER THIS AGREEMENT, AND (B) BIOGEN IDEC AND ITS
SUBLICENSEES SHALL HAVE THE RIGHT, FOR [***] ([***]) MONTHS OR SUCH LONGER TIME
PERIOD (IF ANY) ON WHICH THE PARTIES MUTUALLY AGREE IN WRITING, TO SELL OR
OTHERWISE DISPOSE OF ALL INVENTORIED LICENSED PRODUCTS THEN ON HAND, WITH
ROYALTIES TO BE PAID TO IMMUNOGEN ON ALL NET SALES OF SUCH LICENSED PRODUCTS AS
PROVIDED FOR IN THIS AGREEMENT.
8.4
REMEDIES.
EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THIS AGREEMENT, THE TERMINATION PROVISIONS OF THIS SECTION 8 ARE IN
ADDITION TO ANY OTHER RELIEF AND REMEDIES AVAILABLE TO EITHER PARTY AT LAW.
8.5
SURVIVING PROVISIONS.
NOTWITHSTANDING ANY
PROVISION HEREIN TO THE CONTRARY, THE RIGHTS AND OBLIGATIONS OF THE PARTIES SET
FORTH IN SECTIONS 2.3, 3.3(E), 4.5(B), 4.5(C), 4.5(D), 5.9(B), 6, 7.2, 7.4, 7.5,
8.1, 8.3, 8.4, 8.5, 9.3, 10 AND 11 AS WELL AS ANY RIGHTS OR OBLIGATIONS
OTHERWISE
CONFIDENTIAL
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Act of
1934.
48
ACCRUED HEREUNDER (INCLUDING ANY ACCRUED PAYMENT OBLIGATIONS), SHALL SURVIVE THE
EXPIRATION OR TERMINATION OF THE TERM OF THIS AGREEMENT.