BECOMES SUBJECT TO A BANKRUPTCY
EVENT; OR
(II)
IMCOR BREACHES THIS AGREEMENT AND DOES NOT
CURE SUCH BREACH OR HAVE IN PROGRESS A GOOD FAITH EFFORT TO CURE WITHIN SIXTY
(60) DAYS AFTER WRITTEN NOTICE THEREOF.
(III)
CLINICAL RESULTS FAIL TO ALLOW KYOSEI TO FILE
FOR REGISTRATION OF THE LICENSED PRODUCT.
(IV)
A SAE, AS DEFINED IN ICH GUIDELINES, OCCURS IN
THE CLINICAL DEVELOPMENT OF THE LICENSED PRODUCT RESULTING IN THE INABILITY TO
CONTINUE CLINICAL DEVELOPMENT.
9
D.
IN ADDITION TO PARAGRAPH B, IMCOR MAY, AT
THIS OPTION, TEMPORARILY SUSPEND SHIPMENTS OF LICENSED PRODUCT(S) IF IT
REASONABLY BELIEVES THAT HUMAN HEALTH OR SAFETY WOULD BE HARMED.
E.
UPON TERMINATION OF THIS AGREEMENT, THE
PARTIES SHALL, UPON REQUEST, RETURN TO THE OTHER PARTY ALL CONFIDENTIAL
INFORMATION OF SUCH REQUESTING PARTY FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION
AS WELL AS ANY DATA GENERATED DURING THE TERM OF THIS AGREEMENT WHICH WILL
FACILITATE THE DEVELOPMENT OF THE TECHNOLOGY LICENSED HEREUNDER.
F.
KYOSEI'S OBLIGATION TO PAY LICENSE FEES
ROYALTIES OR MILESTONE PAYMENTS ACCRUED UNDER SECTION [3] HEREOF SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
IN ADDITION, THE PROVISIONS OF SECTIONS [10],
[11], [12], [13.D], [18], [19.C], [19.E] SHALL SURVIVE SUCH TERMINATION.
12.
PATENT MAINTENANCE AND REIMBURSEMENT.
IMCOR
SHALL CONTROL AND PAY COSTS OF AND DILIGENTLY PROSECUTE AND MAINTAIN PATENT
RIGHTS LICENSED HEREUNDER.
IMCOR MAY BY WRITTEN NOTICE ELECT TO STOP PAYING FOR
THE PREPARATION AND MAINTENANCE OF PATENT RIGHTS PERTAINING TO LICENSED
PRODUCT(S) IN THE TERRITORY IN WHICH EVENT, KYOSEI MAY ASSUME THE OBLIGATION OF
MAINTAINING FOR ITS OWN BENEFIT ANY SUCH PATENT OR PATENT APPLICATION.
WHEN
KYOSEI ASSUMES THE OBLIGATION OF MAINTAINING A PATENT OR PATENT APPLICATION
UNDER THIS SECTION, KYOSEI'S LICENSE HEREUNDER IN SUCH COUNTRY SHALL TERMINATE,
EXCEPT WHERE IMCOR'S DECISION TO STOP PAYING IS BASED ON A GOOD FAITH
DETERMINATION AS INDICATED BY PATENT COUNSEL OF UNPATENTABILITY IN SUCH COUNTRY,
WITH TIMELY NOTICE OF SUCH DETERMINATION TO IMCOR.
13.
INFRINGEMENT AND LITIGATION.
A.
IMCOR AND KYOSEI ARE RESPONSIBLE FOR
NOTIFYING EACH OTHER PROMPTLY OF ANY INFRINGEMENT OF PATENT RIGHTS WHICH MAY
COME TO THEIR ATTENTION, INCLUDING NOTICE TO THE OTHER OF ANY CERTIFICATION
FILED UNDER THE UNITED STATES "DRUG PRICE COMPETITION AND PATENT TERM
RESTORATION ACT OF 1984."
IMCOR AND KYOSEI SHALL CONSULT ONE ANOTHER IN A
TIMELY MANNER CONCERNING ANY APPROPRIATE RESPONSE THERETO.
B.
IMCOR SHALL HAVE THE FIRST RIGHT, BUT NOT
THE OBLIGATION TO PROSECUTE SUCH INFRINGEMENT AT ITS OWN EXPENSE.
IMCOR SHALL
NOT SETTLE OR COMPROMISE ANY SUCH SUIT IN A MANNER THAT IMPOSES ANY OBLIGATIONS
OR RESTRICTIONS ON KYOSEI OR GRANTS ANY RIGHTS TO THE TECHNICAL INFORMATION OR
THE PATENT RIGHTS, IN THE TERRITORY WITHOUT KYOSEI'S WRITTEN PERMISSION WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD AFTER DUE CONSIDERATION OF IMCOR'S
POLICIES PERTAINING TO INTELLECTUAL PROPERTY.
FINANCIAL RECOVERIES FROM ANY
SUCH LITIGATION WILL BE ENTIRELY RETAINED BY IMCOR.
C.
IF IMCOR FAILS TO PROSECUTE SUCH
INFRINGEMENT, KYOSEI SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO PROSECUTE
SUCH INFRINGEMENT AT ITS OWN EXPENSE.
IN SUCH AN EVENT