CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF ANY INCYTE PATENT RIGHT; OR (III) OPPOSES ANY EXTENSION OF, OR THE GRANT OF A
SUPPLEMENTARY PROTECTION CERTIFICATE WITH RESPECT TO, ANY INCYTE PATENT RIGHT,
INCYTE SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON *** WRITTEN NOTICE
TO LILLY.
ANY SUCH TERMINATION SHALL ONLY BECOME EFFECTIVE IF LILLY OR ITS
AFFILIATE OR SUBLICENSEE, AS APPLICABLE, HAS NOT WITHDRAWN SUCH ACTION BEFORE
THE END OF THE ABOVE NOTICE PERIOD.
(D)
TERMINATION FOR LILLY'S ABANDONMENT OF DEVELOPMENT OR
COMMERCIALIZATION.
SUBJECT TO SECTION 4.2(B)(III)A AND 5.1(B)(I), IF LILLY HAS
ABANDONED DEVELOPMENT OR ABANDONED COMMERCIALIZATION IN ACCORDANCE WITH
SECTION 4.2(A)(III) OR 5.1(B), AS APPLICABLE, INCYTE MAY ELECT TO TERMINATE THIS
AGREEMENT BY PROVIDING LILLY WRITTEN NOTICE OF SUCH TERMINATION, SUCH
TERMINATION TO BE EFFECTIVE IMMEDIATELY.
NOTWITHSTANDING THE FOREGOING, IF
LILLY DISPUTES THE TERMINATION, THEN 8.2(E) SHALL APPLY.
(E)
TERMINATION DISPUTES.
IF A PARTY GIVES NOTICE OF TERMINATION
UNDER SECTION 8.2(B), IF THE PARTIES DISPUTE WHETHER LILLY HAS ABANDONED
DEVELOPMENT OR ABANDONED COMMERCIALIZATION IN ACCORDANCE WITH
SECTION 4.2(B)(III) OR 5.1(B), AS APPLICABLE, OR INCYTE GIVES NOTICE OF
TERMINATION UNDER 8.2(D), AND THE OTHER PARTY DISPUTES WHETHER SUCH NOTICE WAS
PROPER, THEN THE ISSUE OF WHETHER OR NOT LILLY HAS ABANDONED DEVELOPMENT,
ABANDONED COMMERCIALIZATION, OR IF THIS AGREEMENT WAS PROPERLY TERMINATED SHALL
BE RESOLVED IN ACCORDANCE WITH ARTICLE XII, AND THE AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT UNTIL SUCH DISPUTE IS RESOLVED.
IF AS A RESULT OF SUCH
DISPUTE RESOLUTION PROCESS IT IS DETERMINED THAT THE NOTICE OF TERMINATION WAS
PROPER, THEN SUCH TERMINATION SHALL BE DEEMED TO BE EFFECTIVE ON THE DATE ON
WHICH SUCH DISPUTE IS RESOLVED.
ON THE OTHER HAND, IF AS A RESULT OF THE
DISPUTE RESOLUTION PROCESS IT IS DETERMINED THAT THE NOTICE OF TERMINATION WAS
IMPROPER, THEN NO TERMINATION SHALL HAVE OCCURRED AND THIS AGREEMENT SHALL
REMAIN IN FULL FORCE AND EFFECT.
8.3
EFFECTS OF TERMINATION.
(A)
UPON TERMINATION OF THIS AGREEMENT BY LILLY UNDER
SECTION 8.2(A) OR BY INCYTE UNDER SECTIONS 8.2(B), 8.2(C) OR 8.2(D):
(I)
ALL LICENSES GRANTED BY INCYTE TO LILLY HEREUNDER SHALL TERMINATE
AND LILLY SHALL NOT HAVE ANY RIGHTS TO USE OR EXERCISE ANY RIGHTS UNDER THE
INCYTE IP;
(II)
LILLY SHALL PROVIDE TO INCYTE A FAIR AND ACCURATE SUMMARY REPORT
OF THE STATUS OF THE DEVELOPMENT AND COMMERCIALIZATION OF THE LICENSED PRODUCTS
IN EACH COUNTRY IN THE TERRITORY THROUGH THE EFFECTIVE DATE OF TERMINATION
WITHIN *** AFTER SUCH TERMINATION;
(III)
LILLY HEREBY GRANTS TO INCYTE, EXERCISABLE FROM AND AFTER SUCH
TERMINATION, AN EXCLUSIVE, WORLDWIDE, PERPETUAL, IRREVOCABLE, ROYALTY-FREE,
FULLY-PAID LICENSE, WITH THE RIGHT TO GRANT SUBLICENSES, UNDER LILLY AND ITS
AFFILIATES' INTEREST IN THE JOINT IP AND ANY KNOW-HOW OR PATENT RIGHTS
CONTROLLED BY LILLY OR ITS AFFILIATES AS OF THE DATE OF SUCH TERMINATION SOLELY
TO THE EXTENT THAT SUCH LICENSES ARE NECESSARY TO RESEARCH, DEVELOP, MAKE, HAVE
MADE, USE, OFFER FOR SALE, SELL AND IMPORT LICENSED PRODUCTS IN THE FIELD IN THE
TERRITORY, AND LILLY SHALL RETAIN ALL OTHER REMAINING RIGHTS;
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