INCYTE AGREES THAT LILLY, AS LICENSEE OF SUCH RIGHTS UNDER
THIS AGREEMENT, WILL RETAIN AND MAY FULLY EXERCISE ALL OF ITS RIGHTS AND
ELECTIONS UNDER THE BANKRUPTCY CODE OR ANY OTHER PROVISIONS OF APPLICABLE LAW
OUTSIDE THE UNITED STATES THAT PROVIDE SIMILAR PROTECTION FOR "INTELLECTUAL
PROPERTY."
INCYTE FURTHER AGREE THAT, IN THE EVENT OF THE COMMENCEMENT OF A
BANKRUPTCY PROCEEDING BY OR AGAINST INCYTE UNDER THE BANKRUPTCY CODE OR
ANALOGOUS PROVISIONS OF APPLICABLE LAW OUTSIDE THE UNITED STATES, LILLY WILL BE
ENTITLED TO A COMPLETE DUPLICATE OF (OR COMPLETE ACCESS TO, AS LILLY DEEMS
APPROPRIATE) SUCH INTELLECTUAL PROPERTY AND ALL EMBODIMENTS OF SUCH INTELLECTUAL
PROPERTY, WHICH, IF NOT ALREADY IN LILLY'S POSSESSION, WILL BE PROMPTLY
DELIVERED TO IT UPON LILLY'S WRITTEN REQUEST THEREOF.
ANY AGREEMENTS
SUPPLEMENTAL HERETO WILL BE DEEMED TO BE "AGREEMENTS SUPPLEMENTARY TO" THIS
AGREEMENT FOR PURPOSES OF SECTION 365(N) OF THE BANKRUPTCY CODE.
2.4
FIELD EXPANSION.
FROM TIME TO TIME DURING THE TERM, LILLY SHALL
HAVE THE RIGHT, UPON WRITTEN NOTICE TO INCYTE, TO REQUEST TO EXPAND THE FIELD TO
*** (EACH AN "ADDITIONAL FIELD") IN WHICH LILLY HAS A GOOD FAITH INTENTION TO
SEEK TO DEVELOP AND COMMERCIALIZE LICENSED COMPOUNDS AND LICENSED PRODUCTS,
WHICH RIGHT SHALL BE SUBJECT TO ANY AGREEMENT WHICH INCYTE MAY HAVE ENTERED INTO
WITH A THIRD PARTY WITH RESPECT TO SUCH
14
*** Confidential material redacted and filed separately with the Commission.
ADDITIONAL FIELD(S).
FOLLOWING INCYTE'S RECEIPT OF SUCH WRITTEN NOTICE, AND
UPON MUTUAL AGREEMENT OF THE PARTIES, THE FIELD MAY BE EXPANDED TO INCLUDE SUCH
ADDITIONAL FIELD(S).
THE MILESTONE PAYMENTS SET FORTH IN
SECTION 7.2(A)(I) SHALL APPLY AS FOLLOWS FOR THE LEAD COMPOUND AND IN
SECTION 7.2(A)(II) FOR A LICENSED BACK-UP COMPOUND WHEN DEVELOPED FOR SUCH
ADDITIONAL FIELD: (A) *** PAYMENTS SHALL APPLY FOR *** MEANS AN *** IN ***; AND
(B) *** PAYMENTS SHALL APPLY FOR *** MEANS AN *** IN ***.
2.5
RETAINED RIGHTS.
(A)
NO IMPLIED LICENSES OR RIGHTS.
EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 2.1 OR ELSEWHERE IN THIS AGREEMENT, ALL RIGHTS IN AND TO THE INCYTE IP,
AND ANY OTHER PATENT RIGHTS OR KNOW-HOW OF INCYTE AND ITS AFFILIATES, ARE HEREBY
RETAINED BY INCYTE AND ITS AFFILIATES.
(B)
OTHER RETAINED RIGHTS.
(I)
NOTWITHSTANDING THE EXCLUSIVE LICENSES GRANTED TO LILLY PURSUANT
TO SECTION 2.1, INCYTE RETAINS THE RIGHT TO PRACTICE UNDER THE INCYTE IP SOLELY
TO PERFORM (AND TO SUBLICENSE THIRD PARTIES TO PERFORM) ITS OBLIGATIONS UNDER
THIS AGREEMENT (INCLUDING THE MANUFACTURE AND SUPPLY OF LICENSED COMPOUND AND
LICENSED PRODUCT TO LILLY).
(II)
FOR PURPOSES OF CLARITY, THE LICENSE GRANTED TO LILLY IN
SECTION 2.1 SHALL NOT REQUIRE INCYTE TO REMOVE ANY LICENSED COMPOUNDS FROM
INCYTE'S COMPOUND LIBRARY, PROVIDED, HOWEVER, THAT INCYTE SHALL HAVE NO RIGHT TO
DEVELOP OR COMMERCIALIZE ANY LICENSED COMPOUND OR LICENSED PRODUCT, EVEN IF
INCLUDED IN INCYTE'S COMPOUND LIBRARY.
2.6
NON-COMPETE.
(A)
INCYTE AGREES NOT TO, AND SHALL CAUSE ITS AFFILIATES NOT TO,
DIRECTLY OR INDIRECTLY, INCLUDING THROUGH ANY OWNERSHIP INTEREST IN ANY OTHER
ENTITY (OTHER THAN THROUGH AN OWNERSHIP INTEREST OF