A
FINAL AND NON-APPEALABLE JUDGMENT (OR JUDGMENT FROM WHICH NO APPEAL WAS TAKEN
WITHIN THE ALLOWABLE TIME PERIOD) OR (B) A CLAIM WITHIN A PATENT APPLICATION ***
AND WHICH CLAIM HAS NOT BEEN REVOKED, CANCELLED, WITHDRAWN, HELD INVALID OR
ABANDONED.
11
*** Confidential material redacted and filed separately with the Commission.
1.79
"VOTING STOCK" MEANS SECURITIES OF ANY CLASS OR SERIES OF A
CORPORATION, LIMITED LIABILITY COMPANY, ASSOCIATION OR OTHER ENTITY, THE HOLDERS
OF WHICH ARE ORDINARILY, IN THE ABSENCE OF CONTINGENCIES, ENTITLED TO VOTE
GENERALLY IN MATTERS PUT BEFORE THE SHAREHOLDERS OR MEMBERS OF SUCH CORPORATION,
LIMITED LIABILITY COMPANY, ASSOCIATION OR OTHER ENTITY, INCLUDING THE RIGHT TO
VOTE FOR THE ELECTION OF DIRECTORS OR MEMBERS OF AN EQUIVALENT GOVERNING BODY.
1.80
ADDITIONAL DEFINITIONS.
EACH OF THE FOLLOWING DEFINITIONS IS SET
FORTH IN THE SECTION OF THIS AGREEMENT INDICATED BELOW:
DEFINITION
SECTION
Abandoned Commercialization
5.1(b)
Abandoned Development
4.2(b)(iii)
Additional Field
2.4
Agreement
Preamble
Bankruptcy Code
2.3
Breaching Party
8.2(b)
Combination Product
1.55
Co-Promotion Option
5.4(a)
Development Budget
4.2(a)(iii)C
Development Plan
4.2(a)(iii)
Disclosing Party
11.1
Effective Date
Preamble
Follow-On Lead Compound
1.46
Future Incyte Patent Rights
6.2(a)
Genus Patent Rights
6.2(a)
Global Safety Database
4.5(c)
Incyte
Preamble
Incyte Indemnified Parties
9.1(a)
Incyte Phase IIa Study
4.2(a)(ii)
Initial Development Plan
4.2(a)(iii)
Initial Lead Compound
1.48
Initial Licensed Back-Up Compound
1.48
JDC
3.1(a)
Joint IP
6.1(b)
Lilly
Preamble
Lilly Indemnified Parties
9.2(a)
***
2.4
***
2.4
Non-Breaching Party
8.2(b)
Notice
13.5
Ongoing Studies
4.2(a)(i)
Promotional Plan
5.4(a)
Receiving Party
11.1
Royalty Term
7.3(b)
SEC
11.3(b)
Severed Clause
13.12
12
*** Confidential material redacted and filed separately with the Commission.
DEFINITION
SECTION
Subcommittee
3.2
Term
8.1
Third-Party Infringement
6.3(a)
UCC
5.4(b)(iii)
Voting Securities
10.5(a)(i)
1.81
CONSTRUCTION.
IN CONSTRUING THIS AGREEMENT, UNLESS EXPRESSLY
SPECIFIED OTHERWISE:
(A)
REFERENCES TO ARTICLES, SECTIONS, EXHIBITS AND SCHEDULES ARE TO
ARTICLES AND SECTIONS OF, AND EXHIBITS AND SCHEDULES TO, THIS AGREEMENT;
(B)
EXCEPT WHERE THE CONTEXT OTHERWISE REQUIRES, USE OF EITHER GENDER
INCLUDES THE OTHER GENDER, AND USE OF THE SINGULAR INCLUDES THE PLURAL AND VICE
VERSA;
(C)
HEADINGS AND TITLES ARE FOR CONVENIENCE ONLY AND DO NOT AFFECT THE
INTERPRETATION OF THIS AGREEMENT;
(D)
ANY LIST OR EXAMPLES FOLLOWING THE WORD "INCLUDING" SHALL BE
INTERPRETED WITHOUT LIMITATION TO THE GENERALITY OF THE PRECEDING WORDS;
(E)
EXCEPT WHERE THE CONTEXT OTHERWISE REQUIRES, THE WORD "OR" IS USED
IN THE INCLUSIVE SENSE;
(F)
ALL REFERENCES TO "DOLLARS" OR "$" HEREIN SHALL MEAN U.S.
DOLLARS; AND
(G)
EACH PARTY REPRESENTS THAT IT HAS BEEN REPRESENTED BY LEGAL
COUNSEL IN CONNECTION WITH THIS AGREEMENT AND ACKNOWLEDGES THAT IT HAS
PARTICIPATED IN THE DRAFTING HEREOF.
IN INTERPRETING AND APPLYING THE TERMS AND
PROVISIONS OF THIS AGREEMENT, THE PARTIES AGREE THAT NO PRESUMPTION WILL APPLY
AGAINST THE PARTY WHICH DRAFTED SUCH TERMS AND PROVISIONS.
ARTICLE II
LICENSES
2.1
RIGHTS GRANTED BY INCYTE TO LILLY.
SUBJECT TO THE TERMS OF THIS
AGREEMENT, INCYTE HEREBY GRANTS LILLY, DURING THE TERM, AN EXCLUSIVE (EVEN AS TO
INCYTE AND ITS AFFILIATES), ROYALTY-BEARING, NON-TRANSFERABLE (EXCEPT IN
ACCORDANCE WITH