EACH OF ITS AFFILIATES TO NOT, CONDUCT ANY ACTIVITY, EITHER ON ITS OWN, OR
WITH, FOR THE BENEFIT OF, OR SPONSORED BY ANY THIRD PARTY, OR SPONSOR ANY
ACTIVITY BY A THIRD PARTY, IN ANY CASE THAT THAT
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INVOLVES THE DEVELOPMENT OR COMMERCIALIZATION, OR GRANT ANY LICENSE OR OTHER
RIGHTS TO ANY THIRD PARTY TO UTILIZE ANY TECHNOLOGY OR PATENT RIGHTS CONTROLLED
BY DS OR ANY OF ITS AFFILIATES FOR THE EXPRESS PURPOSE OF DEVELOPING OR
COMMERCIALIZING (A) ANY COLLABORATION COMPOUND OR LICENSED PRODUCT (I) * OR
(II) WITHIN THE TERRITORY FOR ANY USE OUTSIDE OF THE FIELD OR (B)* EXCEPT
(A) HEREUNDER IN THE DEVELOPMENT PROGRAM OR THE DEVELOPMENT OR COMMERCIALIZATION
OF LICENSED PRODUCTS AND (B) IN CONNECTION WITH THE CONDUCT OF ANY PERMITTED
TRANSACTIONS.
6.4.3
FUTURE NEGOTIATIONS.
NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT OR THE EXISTING LICENSE AGREEMENT, AT THE REQUEST OF DS, ARQULE AGREES
TO NEGOTIATE IN GOOD FAITH WITH DS (I) TO PERMIT DS TO NEGOTIATE AND ENTER INTO
AN AGREEMENT WITH KYOWA WITH RESPECT TO THE DEVELOPMENT AND/OR COMMERCIALIZATION
OF LICENSED PRODUCTS IN THE ASIAN TERRITORY AND (II) TO DISCUSS THE RELEASE OF
DS FROM THE RESTRICTION SET FORTH IN SECTION 6.4.2(B) IN ORDER TO PERMIT DS TO
DEVELOP AND/OR COMMERCIALIZE * THAT IS NOT * OF * OR * IN THE ASIAN TERRITORY.
6.4.4
PERMITTED TRANSACTIONS.
IF EITHER PARTY ENTERS INTO AN AGREEMENT
FOR A PERMITTED TRANSACTION, ALL TECHNOLOGY AND PATENT RIGHT GRANTED TO SUCH
PARTY UNDER THE PERMITTED TRANSACTION SHALL BE INCLUDED WITHOUT FURTHER ACTION
IN THE LICENSES GRANTED TO THE OTHER PARTY BY SECTION 6.1.1 OR 6.1.2.
6.5
Use of Third Party Technology.
6.5.1
EXISTING LICENSE AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS AGREEMENT, ANY ROYALTIES (OR ANY OTHER PAYMENTS) TO
BE PAID UNDER THE EXISTING LICENSE AGREEMENT SHALL BE THE SOLE RESPONSIBILITY OF
ARQULE.
6.5.2
ADDITIONAL THIRD PARTY DEVELOPMENT TECHNOLOGY.
NEITHER PARTY SHALL
HAVE ANY OBLIGATION TO USE ANY PATENT RIGHTS (OTHER THAN THE LICENSED PATENT
RIGHTS, JOINT PATENT RIGHTS OR DS PATENT RIGHTS) IN CONNECTION WITH THE
DEVELOPMENT OR COMMERCIALIZATION OF ANY COLLABORATION COMPOUND OR LICENSED
PRODUCT, AND EACH PARTY HEREBY AGREES THAT, EXCEPT AS PROVIDED IN THE GLOBAL
DEVELOPMENT PLAN OR AS AGREED TO BETWEEN THE PARTIES FOLLOWING A PROPOSAL
SUBMITTED IN ACCORDANCE WITH THIS SECTION 6.5.2, IT SHALL NOT USE ANY TECHNOLOGY
OWNED OR CONTROLLED BY A THIRD PARTY ("THIRD PARTY DEVELOPMENT TECHNOLOGY") IN
THE DEVELOPMENT AND/OR COMMERCIALIZATION OF ANY COLLABORATION COMPOUND OR
LICENSED PRODUCT IF THE OTHER PARTY
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WOULD THEREBY BE REQUIRED TO PAY A ROYALTY OR OTHER COMPENSATION TO THE THIRD
PARTY HOLDER OF RIGHTS TO THAT TECHNOLOGY IN CONNECTION THEREWITH.
EITHER PARTY
MAY AT ANY TIME DURING THE TERM SUBMIT TO THE OTHER PARTY AND TO THE JDC A
PROPOSAL TO LICENSE THIRD PARTY DEVELOPMENT TECHNOLOGY THAT SUCH PARTY
REASONABLY BELIEVES WOULD BE NECESSARY OR USEFUL IN ORDER TO DEVELOP OR
COMMERCIALIZE ANY COLLABORATION COMPOUND OR LICENSED PRODUCT.
SUCH PROPOSAL
SHALL CONTAIN, AT A MINIMUM, INFORMATION SUPPORTING THE