10.9 SHALL APPLY; (III) COMPANY SHALL PAY ALL
COSTS, FEES AND EXPENSES ASSOCIATED WITH SUCH PATENT CHALLENGE THAT ARE INCURRED
BY WISTAR AND ITS TRUSTEES, MANAGERS, OFFICERS, AGENTS, EMPLOYEES, FACULTY,
AFFILIATED INVESTIGATORS, PERSONNEL, AND STAFF, INCLUDING ATTORNEYS' FEES AND
ALL COSTS ASSOCIATED WITH ADMINISTRATIVE, JUDICIAL OR OTHER PROCEEDINGS, WITHIN
THIRTY (30) DAYS AFTER RECEIVING AN INVOICE FROM WISTAR FOR SAME; (IV) THE
EXCLUSIVE LICENSES GRANTED IN THIS AGREEMENT SHALL, AS OF THE DATE OF INITIATION
OF SAID CHALLENGE OR OPPOSITION, AUTOMATICALLY CONVERT TO A NON-EXCLUSIVE
LICENSE FOR THE REMAINDER OF THE TERM, AND WISTAR SHALL HAVE THE RIGHT TO GRANT
LICENSES UNDER THE LICENSED PATENTS TO THIRD PARTIES, SUBJECT TO THE
THEN-EXISTING NON-EXCLUSIVE LICENSE PROVIDED HEREIN; (V) ANY FEES, ROYALTIES,
MILESTONES OR REVENUES PAYABLE TO WISTAR HEREUNDER SHALL DOUBLE IN AMOUNT IF AND
WHEN ANY LICENSED PATENT SURVIVES THE PATENT CHALLENGE SUCH THAT IT REMAINS
VALID IN WHOLE OR IN PART; AND (VI) AT ANY TIME AFTER THE PATENT CHALLENGE IS
BROUGHT, WISTAR MAY, AT ITS OPTION, TERMINATE THIS AGREEMENT ACCORDING TO
SECTION 9.2; PROVIDED THAT IF ANY OF SUBSECTIONS (I) THROUGH (VI) ARE HELD
INVALID OR UNENFORCEABLE FOR ANY REASON, SUCH INVALIDITY OR UNENFORCEABILITY
SHALL NOT AFFECT ANY OF THE OTHER SAID SUBSECTIONS.
NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT TO THE CONTRARY, COMPANY SHALL NOT HAVE THE RIGHT TO
ASSUME OR PARTICIPATE IN THE DEFENSE, SETTLEMENT OR OTHER DISPOSITION OF SUCH
PATENT CHALLENGE THROUGH ITS STATUS AS A LICENSEE UNDER THIS AGREEMENT, BUT
SHALL PAY ASSOCIATED COSTS, FEES AND EXPENSES AS PROVIDED IN SECTION 7.5(III).
THE PARTIES AGREE ANY CHALLENGE OR OPPOSITION TO A LICENSED PATENT BY COMPANY
MAY BE DETRIMENTAL TO WISTAR, AND THAT THE ABOVE PROVISIONS SHALL CONSTITUTE
REASONABLE LIQUIDATED DAMAGES TO REASONABLY COMPENSATE WISTAR FOR ANY LOSS IT
MAY INCUR AS A RESULT OF COMPANY TAKING SUCH ACTION.
ARTICLE 8 - CONFIDENTIALITY
8.1
CONFIDENTIALITY.
8.1.1.
"WISTAR CONFIDENTIAL INFORMATION" MEANS (I) THE LICENSED TECHNICAL
INFORMATION; (II) ANY INFORMATION PROVIDED TO COMPANY IN CONNECTION WITH
PROSECUTION UNDER THIS AGREEMENT, AND (III) ANY INFORMATION OR MATERIAL THAT IS
SENT TO COMPANY BY WISTAR PRIOR TO OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT
AND MARKED "CONFIDENTIAL" OR WHEN THE CONFIDENTIAL NATURE OF SUCH INFORMATION OR
MATERIAL IS APPARENT FROM CONTEXT AND SUBJECT MATTER.
"COMPANY CONFIDENTIAL
INFORMATION" MEANS (A) THE COMMERCIALIZATION PLAN, AND (B) ANY REPORTS PREPARED
BY COMPANY AND PROVIDED TO WISTAR PURSUANT TO SECTIONS
3.8, 4.4.1 AND 4.9. THE
TERMS OF THIS AGREEMENT BUT NOT THE EXISTENCE OF THIS AGREEMENT, CONSTITUTE THE
CONFIDENTIAL INFORMATION OF BOTH PARTIES HEREUNDER. "CONFIDENTIAL INFORMATION"
MEANS THE WISTAR CONFIDENTIAL INFORMATION AND COMPANY CONFIDENTIAL INFORMATION,
AS APPLICABLE.
27
8.1.2.
FOR THE TERM OF THIS AGREEMENT AND A PERIOD OF FIVE (5) YEARS
THEREAFTER, (A) COMPANY SHALL MAINTAIN IN CONFIDENCE AND SHALL NOT DISCLOSE TO
ANY THIRD PARTY ANY WISTAR CONFIDENTIAL INFORMATION, AND (B) WISTAR SHALL
MAINTAIN IN CONFIDENCE AND SHALL NOT DISCLOSE TO ANY THIRD PARTY ANY COMPANY
CONFIDENTIAL INFORMATION.
EACH PARTY SHALL TAKE ALL REASONABLE STEPS TO PROTECT
THE CONFIDENTIAL INFORMATION OF