TO MAKE COPIES FROM THOSE RECORDS AT FOXKISER'S EXPENSE.
FOXKISER AND ITS CERTIFIED PUBLIC ACCOUNTANTS SHALL HAVE SUCH ACCESS AT
REASONABLE TIMES DURING NORMAL BUSINESS HOURS. PROMPT ADJUSTMENT SHALL BE MADE
BY THE PROPER PARTY TO COMPENSATE FOR ANY ERRORS OR OMISSIONS DISCLOSED BY SUCH
AUDIT. FOXKISER AGREES TO HOLD CONFIDENTIAL ALL INFORMATION LEARNED IN THE
COURSE OF ANY EXAMINATION OF BOOKS AND RECORDS UNDER THIS AGREEMENT, EXCEPT WHEN
IT IS NECESSARY FOR FOXKISER TO REVEAL SUCH INFORMATION IN ORDER TO ENFORCE ITS
RIGHTS UNDER THIS AGREEMENT, WHEN DISCLOSURE IS COMPELLED BY LAW, OR WHEN SUCH
INFORMATION IS PUBLICLY AVAILABLE WITHOUT BREACH BY FOXKISER.
3.4
REPORTS CONCLUSIVELY CORRECT.
IN THE
ABSENCE OF FRAUD, ALL REPORTS AND PAYMENTS NOT DISPUTED AS TO CORRECTNESS BY
FOXKISER WITHIN THREE (3) YEARS AFTER RECEIPT SHALL THEREAFTER CONCLUSIVELY BE
DEEMED CORRECT FOR ALL PURPOSES.
4.
TERM AND TERMINATION
4.1
TERM OF AGREEMENT.
UNLESS TERMINATED
EARLIER IN ACCORDANCE WITH SECTION 4.2, THIS AGREEMENT SHALL BECOME EFFECTIVE ON
THE FIRST DATE ON WHICH BOTH PARTIES HAVE EXECUTED THIS AGREEMENT AS PROVIDED
BELOW, AND SHALL CONTINUE IN FORCE UNTIL ALL ROYALTIES DUE UNDER THIS AGREEMENT
HAVE BEEN PAID IN FULL.
4.2
TERMINATION FOR MATERIAL BREACH.
UPON ANY
MATERIAL BREACH OF THIS AGREEMENT BY EITHER PARTY, THE OTHER PARTY MAY TERMINATE
THIS AGREEMENT BY PROVIDING SIXTY (60) DAYS' WRITTEN NOTICE TO THE BREACHING
PARTY, SPECIFYING THE MATERIAL BREACH. THE TERMINATION SHALL BECOME EFFECTIVE AT
THE END OF THE SIXTY (60) DAY PERIOD UNLESS. (A) THE BREACHING PARTY CURES SUCH
BREACH DURING THAT PERIOD, OR (B) THE PARTIES AGREE TO CONTINUE THE AGREEMENT
DESPITE THE BREACH. ANY DISPUTE AS TO WHETHER A MATERIAL BREACH HAS OCCURRED
SHALL BE RESOLVED BY BINDING ARBITRATION.
4.3
PAYMENT OBLIGATIONS CONTINUE.
UPON
TERMINATION OF THIS AGREEMENT, NOTHING SHALL BE CONSTRUED TO RELEASE ADVANCED
MAGNETICS FROM ITS OBLIGATIONS TO PAY FOXKISER ANY AND ALL FEES, EXPENSES AND
ROYALTIES EARNED UNDER THIS AGREEMENT.
3
5.
MISCELLANEOUS
5.1
ASSIGNMENTS.
THIS AGREEMENT AND ANY AND ALL
OF THE RIGHTS AND OBLIGATIONS OF ANY PARTY SHALL NOT BE ASSIGNED, DELEGATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF, BY OPERATION OF LAW OR OTHERWISE,
WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD.
5.2
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED, INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
5.3
WAIVER.
A WAIVER OF ANY BREACH OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT BE CONSTRUED AS A CONTINUING WAIVER OF
OTHER BREACHES OF THE SAME OR OTHER PROVISIONS OF THIS AGREEMENT.
5.4
NOTICES.
ANY NOTICE REQUIRED OR PERMITTED
TO BE SENT UNDER THIS AGREEMENT SHALL BE GIVEN BY FACSIMILE TRANSMISSION OR BY
REGISTERED OR RECORDED DELIVERY LETTER TO THE PARTIES, TO THE ATTENTION OF ALLAN
FOX OF FOXKISER AND JEROME GOLDSTEIN FOR ADVANCED MAGNETICS AT THEIR RESPECTIVE
PRINCIPAL PLACES OF BUSINESS AS SET FORTH IN THE FIRST PARAGRAPH OF THIS
AGREEMENT. ANY PROPERLY ADDRESSED NOTICE GIVEN BY FACSIMILE SHALL BE DEEMED TO
HAVE BEEN RECEIVED AT THE TIME OF