PROCEEDINGS, OR UPON AN ASSIGNMENT
OF A SUBSTANTIAL PORTION OF THE ASSETS FOR THE BENEFIT OF CREDITORS, BY THE
OTHER PARTY; PROVIDED, HOWEVER, IN THE CASE OF ANY INVOLUNTARY BANKRUPTCY
PROCEEDING SUCH RIGHT TO TERMINATE SHALL ONLY BECOME EFFECTIVE IF THE PARTY
CONSENTS TO THE INVOLUNTARY BANKRUPTCY OR SUCH PROCEEDING IS NOT DISMISSED
WITHIN [***] AFTER THE FILING THEREOF.
Information redacted pursuant to a confidential treatment request.
An
unredacted version of this exhibit has been filed separately with the
Commission.
45
13.4
EFFECT ON LICENSE OF TERMINATION BY JANSSEN FOR CAUSE.
13.4.1
IF JANSSEN TERMINATES THIS AGREEMENT UNDER SECTION 13.3.1, THEN (I)
JANSSEN'S LICENSES PURSUANT TO ARTICLE 7 SHALL BECOME PERPETUAL, EXCLUSIVE
LICENSES SUBJECT TO THE FINANCIAL PROVISIONS OF ARTICLE 9; AND (II) JANSSEN
SHALL HAVE THE RIGHT TO OFFSET AGAINST ANY MONIES OWED TO VERTEX (PURSUANT TO
ARTICLE 9 OF THIS AGREEMENT) ALL OF ITS DIRECT COSTS, LOSSES AND EXPENSES
INCURRED AS A RESULT OF VERTEX'S BREACH, [***]
NOTWITHSTANDING THE FOREGOING,
NO OFFSETS MAY BE TAKEN BY JANSSEN IN ANY CALENDAR YEAR THAT WOULD REDUCE THE
AGGREGATE ROYALTIES PAYABLE TO VERTEX ON ACCOUNT OF NET SALES IN THAT CALENDAR
YEAR [***]
13.4.2
IF JANSSEN TERMINATES THIS AGREEMENT PURSUANT TO SUBSECTION 13.3.2,
ALL LICENSES AND RIGHTS TO LICENSES GRANTED UNDER OR PURSUANT TO THIS AGREEMENT
BY VERTEX TO JANSSEN ARE, AND SHALL OTHERWISE BE DEEMED TO BE, FOR PURPOSES OF
SECTION 365(N) OF THE UNITED STATES BANKRUPTCY CODE (THE "CODE"), LICENSES OF
RIGHTS TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION 101(35A) OF THE CODE.
THE PARTIES AGREE THAT JANSSEN, AS A LICENSEE OF SUCH RIGHTS UNDER THIS
AGREEMENT, SHALL RETAIN AND MAY FULLY EXERCISE ALL OF ITS RIGHTS AND ELECTIONS
UNDER THE CODE, AND THAT UPON COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY VERTEX
UNDER THE CODE, OR AGAINST VERTEX IF SUCH PROCEEDING IS NOT DISMISSED WITHIN
[***] OF ITS INITIAL FILING, JANSSEN SHALL BE ENTITLED TO COMPLETE ACCESS TO ANY
SUCH INTELLECTUAL PROPERTY AND ALL EMBODIMENTS OF SUCH INTELLECTUAL PROPERTY IN
THE TERRITORY.
13.5
EFFECT OF TERMINATION BY VERTEX FOR CAUSE OR BY JANSSEN WITHOUT CAUSE.
If Vertex terminates this Agreement under Section 13.3 or Janssen terminates
this Agreement under Section 13.2:
13.5.1
THE LICENSE GRANTED TO JANSSEN AND ITS AFFILIATES UNDER ARTICLE 7,
AND ANY SUBLICENSE GRANTED BY JANSSEN WITH RESPECT TO ANY [***] UNDER SECTION
7.7, SHALL TERMINATE AS OF THE EFFECTIVE DATE OF TERMINATION, EXCEPT TO THE
EXTENT NECESSARY TO ENABLE JANSSEN TO PERFORM ITS OBLIGATIONS UNDER THIS SECTION
13.5, AND JANSSEN SHALL, WITHIN [***] AFTER SUCH TERMINATION, RETURN OR CAUSE TO
BE RETURNED TO VERTEX AT VERTEX'S REQUEST ALL VERTEX INFORMATION IN TANGIBLE
FORM, AND ALL SUBSTANCES OR COMPOSITIONS DELIVERED OR PROVIDED BY VERTEX, AS
WELL AS ANY OTHER MATERIAL PROVIDED BY VERTEX IN ANY MEDIUM, EXCEPT THAT JANSSEN
MAY RETAIN ONE COPY IN ITS CONFIDENTIAL FILES FOR RECORDS PURPOSES.
13.5.2
THE LICENSE GRANTED TO VERTEX BY JANSSEN UNDER SECTION 7.4 HEREOF
SHALL CONTINUE IN EFFECT NOTWITHSTANDING TERMINATION OF THIS AGREEMENT AND SHALL
BE EXTENDED