COMMENCING AS OF THE DATE OF
FIRST COMMERCIAL SALE OF THE FIRST LICENSED PRODUCT, CENTOCOR AND ITS AFFILIATES
AND SUBLICENSEES SHALL KEEP FOR AT LEAST [********] YEARS FROM THE END OF THE
CALENDAR YEAR TO WHICH THEY PERTAIN COMPLETE AND ACCURATE
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 Ace of
1934.
35
RECORDS OF SALES BY CENTOCOR OR ITS AFFILIATES OR SUBLICENSEES, AS THE CASE MAY
BE, OF EACH LICENSED PRODUCT, IN SUFFICIENT DETAIL TO ALLOW THE ACCURACY OF THE
ROYALTIES TO BE CONFIRMED.
(B)
AUDIT.
SUBJECT TO THE OTHER TERMS OF THIS
SECTION 5.8(B), AT THE REQUEST OF IMMUNOGEN, UPON AT LEAST [********] BUSINESS
DAYS' PRIOR WRITTEN NOTICE, BUT NO MORE OFTEN THAN ONCE PER YEAR, AND AT ITS
SOLE EXPENSE (EXCEPT AS OTHERWISE PROVIDED HEREIN), CENTOCOR SHALL PERMIT AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT REASONABLY SELECTED BY IMMUNOGEN AND
REASONABLY ACCEPTABLE TO CENTOCOR TO INSPECT (DURING REGULAR BUSINESS HOURS) THE
RELEVANT RECORDS REQUIRED TO BE MAINTAINED BY CENTOCOR UNDER SECTION 5.8(A).
AT
IMMUNOGEN'S REQUEST, THE ACCOUNTANT SHALL BE ENTITLED TO AUDIT THE
THEN-PRECEDING [********] YEARS OF CENTOCOR'S RECORDS FOR PURPOSES OF VERIFYING
CENTOCOR'S ROYALTY CALCULATIONS.
TO THE EXTENT REQUESTED BY CENTOCOR THE
ACCOUNTANT SHALL ENTER INTO A CONFIDENTIALITY AGREEMENT WITH BOTH PARTIES
SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 6 LIMITING THE DISCLOSURE AND
USE OF SUCH INFORMATION BY SUCH ACCOUNTANT TO AUTHORIZED REPRESENTATIVES OF THE
PARTIES AND THE PURPOSES GERMANE TO THIS SECTION 5.8.
RESULTS OF ANY SUCH AUDIT
SHALL BE MADE AVAILABLE TO BOTH PARTIES AND SHALL BE BINDING ON BOTH PARTIES.
IMMUNOGEN AGREES TO TREAT THE RESULTS OF ANY SUCH ACCOUNTANT'S REVIEW OF
CENTOCOR'S RECORDS UNDER THIS SECTION 5.8 AS CONFIDENTIAL INFORMATION OF
CENTOCOR SUBJECT TO THE TERMS OF SECTION 6.
IF ANY SUCH AUDIT REVEALS A
DEFICIENCY IN THE CALCULATION OF ROYALTIES RESULTING FROM ANY UNDERPAYMENT BY
CENTOCOR, CENTOCOR SHALL PROMPTLY PAY IMMUNOGEN THE AMOUNT REMAINING TO BE PAID
(PLUS INTEREST THEREON AT A RATE EQUAL TO THE PRIME RATE PLUS [********] PERCENT
(**%)), AND IF SUCH UNDERPAYMENT IS BY [*****] PERCENT (**%) OR MORE, CENTOCOR
SHALL PAY THE COSTS AND EXPENSES OF THE AUDIT.
6.
TREATMENT OF CONFIDENTIAL INFORMATION
6.1
CONFIDENTIAL INFORMATION.
IMMUNOGEN AND
CENTOCOR EACH RECOGNIZE THAT THE OTHER PARTY'S CONFIDENTIAL INFORMATION
CONSTITUTES HIGHLY VALUABLE AND PROPRIETARY CONFIDENTIAL INFORMATION.
DURING
THE TERM OF THIS AGREEMENT, AND FOR A PERIOD OF [********] YEARS AFTER THE
RECEIPT OF ANY SUCH CONFIDENTIAL INFORMATION FROM THE DISCLOSING PARTY
HEREUNDER, WHICHEVER IS LONGER, SUBJECT TO THE TERMS OF THIS SECTION 6, THE
RECEIVING PARTY SHALL KEEP CONFIDENTIAL AND NOT
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 Ace of
1934.
36
DISCLOSE (BY PUBLICATION OR OTHERWISE) CONFIDENTIAL INFORMATION OF THE
DISCLOSING PARTY, AND SHALL NOT USE, PUBLISH