TERMINATION SHALL BE EFFECTIVE UPON EXPIRATION OF THE CURE PERIOD.
ANY
DISPUTE AS TO WHETHER A NOTICE OF TERMINATION PURSUANT TO THIS SECTION 10.3(A)
IS PROPER, OR WHETHER A BREACH IS MATERIAL OR HAS BEEN CURED, SHALL BE RESOLVED
AS PROVIDED PURSUANT TO ARTICLE 14.
(B)
RELATED TO A LICENSED PRODUCT OR COLLABORATION TARGET.
IF ARRAY HAS THE
RIGHT TO TERMINATE THIS AGREEMENT DUE TO A MATERIAL BREACH BY GENENTECH, AND
(I) IF SUCH BREACH RELATES SOLELY TO A PARTICULAR COLLABORATION TARGET, THEN
ARRAY MAY ONLY EXCLUDE COMPOUNDS AND LICENSED PRODUCTS FOR SUCH COLLABORATION
TARGET FROM THE SCOPE OF THE COMMERCIAL LICENSE; OR (II) IF SUCH BREACH RELATES
SOLELY TO A PARTICULAR LICENSED PRODUCT, THEN ARRAY MAY ONLY EXCLUDE SUCH
LICENSED PRODUCT FROM THE SCOPE OF THE COMMERCIAL LICENSE; AND IN EITHER EVENT,
ARRAY MAY NOT TERMINATE THE ENTIRE AGREEMENT.
10.4
Insolvency or Bankruptcy.
(A)
RIGHT TO TERMINATE.
IN THE EVENT THAT A PARTY BECOMES INSOLVENT, FILES A
PETITION IN BANKRUPTCY, HAS SUCH A PETITION FILED AGAINST IT, DETERMINES TO FILE
A PETITION IN BANKRUPTCY, OR RECEIVES NOTICE OF A THIRD PARTY'S INTENTION TO
FILE AN INVOLUNTARY PETITION IN BANKRUPTCY, SUCH PARTY SHALL IMMEDIATELY NOTIFY
THE OTHER PARTY IN WRITING.
IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO SUCH
OTHER PARTY BY LAW OR IN EQUITY, SUCH OTHER PARTY SHALL HAVE THE RIGHT TO
IMMEDIATELY TERMINATE THIS AGREEMENT, IN WHOLE OR IN PART AS THE TERMINATING
PARTY MAY DETERMINE, UPON LEARNING OF ANY OF THE FOREGOING EVENTS.
(B)
RETENTION OF RIGHTS.
IN THE EVENT ARRAY SEEKS OR IS INVOLUNTARILY PLACED
UNDER THE PROTECTION OF THE "BANKRUPTCY CODE" (I.E., TITLE 11, U.S. CODE), AND
THE TRUSTEE IN BANKRUPTCY, OR ARRAY AS A DEBTOR-IN-POSSESSION, REJECTS THIS
AGREEMENT, GENENTECH HEREBY ELECTS, PURSUANT TO SECTION 365(N) OF SUCH
BANKRUPTCY CODE, TO RETAIN ALL LICENSES OF RIGHTS TO "INTELLECTUAL PROPERTY" (AS
DEFINED UNDER SUCH BANKRUPTCY CODE) GRANTED TO IT UNDER THIS AGREEMENT TO THE
EXTENT PERMITTED BY LAW.
(C)
EMBODIMENTS OF IP.
THE PARTIES AGREE THAT, IN THE EVENT OF THE
COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY OR AGAINST ARRAY UNDER SUCH
BANKRUPTCY CODE, GENENTECH SHALL BE ENTITLED TO A COMPLETE DUPLICATE OF ALL
EMBODIMENTS OF SUCH INTELLECTUAL PROPERTY, AND SUCH EMBODIMENTS, IF NOT ALREADY
IN ITS POSSESSION, SHALL BE PROMPTLY DELIVERED TO
27
GENENTECH (I) UPON ANY SUCH COMMENCEMENT OF A BANKRUPTCY PROCEEDING, UNLESS
ARRAY ELECTS TO CONTINUE TO PERFORM ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
OR (II) IF NOT DELIVERED UNDER (I), IMMEDIATELY UPON THE REJECTION OF THIS
AGREEMENT BY OR ON BEHALF OF ARRAY.
(D)
PATENT PROSECUTION.
GENENTECH ACKNOWLEDGES THAT CERTAIN ARRAY PATENTS MAY
CONTAIN SUBJECT MATTER THAT IS LICENSED TO THIRD PARTIES OR MAY ALSO INCLUDE
SUBJECT MATTER THAT IS OUTSIDE THE SCOPE OF THE COMMERCIAL LICENSE.
THE PARTIES
AGREE THAT, IN THE EVENT OF THE COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY OR
AGAINST ARRAY UNDER SUCH BANKRUPTCY CODE, TO THE EXTENT CONSISTENT WITH THE
BANKRUPTCY CODE AND ARRAY'S EXISTING OBLIGATIONS TO THIRD PARTIES, AND TO THE
EXTENT PERMITTED