INCLUDING PRE-LAUNCH
AND LAUNCH ACTIVITIES, MARKETING, MANUFACTURING FOR COMMERCIAL SALE, PROMOTING,
DETAILING, DISTRIBUTING, OFFERING TO SELL AND SELLING A LICENSED PRODUCT,
IMPORTING A LICENSED PRODUCT FOR SALE, CONDUCTING ADDITIONAL HUMAN CLINICAL
TRIALS AND INTERACTING WITH REGULATORY AUTHORITIES REGARDING THE FOREGOING.
WHEN USED AS A VERB, "COMMERCIALIZING" MEANS TO ENGAGE IN COMMERCIALIZATION AND
"COMMERCIALIZED" HAS A CORRESPONDING MEANING.
1.9
"COMMERCIALLY REASONABLE EFFORTS" MEANS, WITH RESPECT TO SANOFI-AVENTIS,
THE EFFORTS AT LEAST EQUAL TO THOSE NORMALLY USED BY SANOFI-AVENTIS WITH RESPECT
TO A PRODUCT OR POTENTIAL PRODUCT OF SIMILAR NATURE AT A SIMILAR STAGE IN ITS
DEVELOPMENT OR PRODUCT LIFE AND OF SIMILAR MARKET POTENTIAL, IN VIEW OF
CONDITIONS PREVAILING AT THE TIME, AND EVALUATED TAKING INTO ACCOUNT ALL
RELEVANT FACTORS, INCLUDING WITHOUT LIMITATION, THE MECHANISM OF ACTION,
EFFICACY, SAFETY, THE ANTICIPATED REGULATORY AUTHORITY APPROVED LABELING, THE
COMPETITIVENESS OF ALTERNATIVE PRODUCTS THAT ARE IN THE MARKETPLACE OR UNDER
DEVELOPMENT, THE PATENT AND OTHER PROPRIETARY POSITION OF THE PRODUCT, THE
LIKELIHOOD OF REGULATORY APPROVAL, THE PROFITABILITY OF THE PRODUCT AND OTHER
TECHNICAL, SCIENTIFIC, LEGAL, MEDICAL, MARKETING AND COMPETITIVE FACTORS.
1.10
"COMMERCIALIZATION REGULATORY APPROVAL" MEANS, WITH RESPECT TO ANY
LICENSED PRODUCT, THE GRANTING OF APPROVAL BY A REGULATORY AUTHORITY OF (A) AN
NDA IN THE UNITED STATES, OR (B) THE EQUIVALENT OF AN NDA REQUIRED BY APPLICABLE
LAWS IN ANY COUNTRY OR REGION IN THE TERRITORY OUTSIDE OF THE UNITED STATES TO
SELL SUCH LICENSED PRODUCT FOR USE IN THE FIELD IN SUCH COUNTRY OR REGION.
2
1.11
"CONFIDENTIAL INFORMATION" MEANS (A) WITH RESPECT TO IMMUNOGEN, ALL
TANGIBLE EMBODIMENTS OF LICENSED TECHNOLOGY AND LICENSED PATENTS AND (B) WITH
RESPECT TO EACH PARTY, ALL INFORMATION AND TECHNOLOGY DISCLOSED OR PROVIDED BY
OR ON BEHALF OF SUCH PARTY (THE "DISCLOSING PARTY") TO THE OTHER PARTY (THE
"RECEIVING PARTY") OR TO ANY OF THE RECEIVING PARTY'S EMPLOYEES, CONSULTANTS,
AFFILIATES OR SUBLICENSEES; PROVIDED, THAT, NONE OF THE FOREGOING SHALL BE
CONFIDENTIAL INFORMATION IF: (I) AS OF THE DATE OF DISCLOSURE, IT IS KNOWN TO
THE RECEIVING PARTY OR ITS AFFILIATES AS DEMONSTRATED BY CREDIBLE
CONTEMPORANEOUS WRITTEN DOCUMENTATION, OTHER THAN BY VIRTUE OF A PRIOR
CONFIDENTIAL DISCLOSURE TO SUCH RECEIVING PARTY; (II) AS OF THE DATE OF
DISCLOSURE IT IS IN THE PUBLIC DOMAIN, OR IT SUBSEQUENTLY ENTERS THE PUBLIC
DOMAIN THROUGH NO FAULT OF THE RECEIVING PARTY; (III) IT IS OBTAINED BY THE
RECEIVING PARTY FROM A THIRD PARTY HAVING A LAWFUL RIGHT TO MAKE SUCH DISCLOSURE
FREE FROM ANY OBLIGATION OF CONFIDENTIALITY TO THE DISCLOSING PARTY; OR (IV) IT
IS INDEPENDENTLY DEVELOPED BY OR FOR THE RECEIVING PARTY WITHOUT REFERENCE TO OR
USE OF ANY CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY AS DEMONSTRATED BY
CREDIBLE CONTEMPORANEOUS WRITTEN DOCUMENTATION.
FOR PURPOSES OF CLARITY, THE
TERMS OF THIS AGREEMENT SHALL CONSTITUTE CONFIDENTIAL INFORMATION OF EACH PARTY.
1.12
"CONTROL" OR "CONTROLLED" MEANS WITH RESPECT TO TECHNOLOGY OR PATENT
RIGHTS, THE POSSESSION BY A PARTY OF THE RIGHT TO GRANT A LICENSE OR SUBLICENSE
TO SUCH TECHNOLOGY OR PATENT RIGHTS AS PROVIDED HEREIN WITHOUT THE PAYMENT OF
ADDITIONAL CONSIDERATION TO,