THIS AGREEMENT AS SHALL BE PERTINENT TO A
ROYALTY ACCOUNTING HEREUNDER.
THESE SHALL INCLUDE AT LEAST THE FOLLOWING:
(A)
ALL LICENSED PRODUCTS MANUFACTURED AND
SOLD.
TOTAL BILLINGS FOR LICENSED PRODUCT SOLD.
(B)
ACCOUNTING FOR ALL THE LICENSED PRODUCTS
USED OR SOLD.
(C)
DEDUCTIONS APPLICABLE AS PROVIDED IN THE
DEFINITION OF NET SALES.
(D)
TOTAL ROYALTIES DUE.
(E)
NAMES AND ADDRESSES OF ALL SUBLICENSEES
HEREUNDER.
4.3
WITH EACH REPORT SUBMITTED IN ACCORDANCE WITH SECTION 4.2, IMCLONE
SHALL PAY TO AVENTIS THE ROYALTIES DUE AND PAYABLE UNDER THIS AGREEMENT.
IF NO
ROYALTIES SHALL BE DUE, IMCLONE SHALL SO REPORT.
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6
ARTICLE 5 - PATENT PROTECTION
5.1(A)
AVENTIS HAS TRANSFERRED TO IMCLONE ITS COMPLETE FILES OF PATENT
RIGHTS.
IMCLONE SHALL RETAIN SUCH FILES UNTIL THIS AGREEMENT SHALL BE
TERMINATED AS HEREINAFTER PROVIDED.
IF THIS AGREEMENT IS SO TERMINATED, IMCLONE
SHALL RETURN TO AVENTIS ITS COMPLETE FILES OF PATENT RIGHTS, AND SHALL KEEP ONE
ARCHIVE COPY THEREOF.
(b)
As between AVENTIS AND IMCLONE, IMCLONE shall pay for the filing,
prosecution and maintenance of all Patent Rights.
5.2
IMCLONE SHALL PROMPTLY FURNISH TO AVENTIS COPIES OF:
(A)
PATENT APPLICATIONS WITHIN THE PATENT
RIGHTS FILED IN ANY PATENT OFFICE; AND
(B)
PAPERS PERTAINING TO THE PATENT RIGHTS FILED
IN OR RECEIVED FROM A PATENT OFFICE.
5.3
IMCLONE SHALL PROMPTLY INFORM AVENTIS OF ALL MATTERS CONCERNING
THE FILING, PROSECUTION AND MAINTENANCE OF THE PATENT RIGHTS, AND SHALL SEND
COPIES TO AVENTIS OF ANY RELEVANT DOCUMENTS IN CONNECTION WITH SUCH PATENT
RIGHTS.
ARTICLE 6 - TERMINATION
6.1
UPON ANY MATERIAL BREACH OR DEFAULT OF THIS AGREEMENT BY IMCLONE
OR AVENTIS, THE NON-BREACHING OR NON-DEFAULTING PARTY SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT AND THE RIGHTS, PRIVILEGES AND LICENSE GRANTED
HEREUNDER, BY NINETY (90) DAYS WRITTEN NOTICE TO THE OTHER PARTY.
SUCH
TERMINATION SHALL BECOME EFFECTIVE UNLESS THE BREACHING OR DEFAULTING PARTY
SHALL HAVE CURED SUCH BREACH OR DEFAULT PRIOR TO THE EXPIRATION OF THE NINETY
(90) DAY PERIOD FROM RECEIPT OF NOTICE OF BREACH OR DEFAULT.
6.2
UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, NOTHING HEREIN
SHALL BE CONSTRUED TO RELEASE EITHER PARTY FROM ANY NON-CANCELABLE OBLIGATION
THAT MATURED PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION.
IMCLONE AND/OR
ANY SUBLICENSEE THEREOF MAY, HOWEVER, AFTER THE EFFECTIVE DATE OF SUCH
TERMINATION, SELL ALL LICENSED PRODUCTS, AND COMPLETE LICENSED PRODUCTS IN THE
PROCESS OF MANUFACTURE AT THE TIME OF SUCH TERMINATION AND SELL THE SAME,
PROVIDED THAT IMCLONE SHALL PAY TO AVENTIS THE ROYALTIES THEREON AS REQUIRED BY
ARTICLE 3 OF THIS AGREEMENT, AND SHALL SUBMIT THE REPORTS REQUIRED BY ARTICLE 4
HEREOF ON THE SALES OF LICENSED PRODUCTS.
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7
ARTICLE 7- REPRESENTATIONS AND WARRANTIES
7.1
AVENTIS AND IMCLONE EACH REPRESENTS AND WARRANTS THAT IT HAS THE
POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT.
7.2
AVENTIS REPRESENTS AND WARRANTS THAT, SUBJECT TO THE THREE-WAY
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREUNDER, IT HAS NOT GRANTED OR
TRANSFERRED AND SHALL