REQUEST,
PROVIDED, THAT, IMMUNOGEN SHALL NOT BE PERMITTED TO AUDIT THE SAME PERIOD OF
TIME MORE THAN ONCE.
BEFORE PERMITTING SUCH INDEPENDENT ACCOUNTING FIRM TO HAVE
ACCESS TO SUCH BOOKS AND RECORDS, SANOFI-AVENTIS MAY REQUIRE SUCH INDEPENDENT
ACCOUNTING FIRM AND ITS PERSONNEL INVOLVED IN SUCH AUDIT, TO SIGN A
CONFIDENTIALITY AGREEMENT (IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO EACH
OF THE PARTIES) AS TO ANY CONFIDENTIAL INFORMATION WHICH IS TO BE PROVIDED TO
SUCH ACCOUNTING FIRM OR TO WHICH SUCH ACCOUNTING FIRM WILL HAVE ACCESS, WHILE
CONDUCTING THE AUDIT UNDER THIS PARAGRAPH.
THE IMMUNOGEN INDEPENDENT ACCOUNTING
FIRM WILL PREPARE AND PROVIDE TO EACH PARTY A WRITTEN REPORT STATING WHETHER THE
ROYALTY REPORTS SUBMITTED AND ROYALTIES PAID ARE CORRECT OR INCORRECT AND THE
SPECIFIC DETAILS CONCERNING ANY DISCREPANCIES.
SUCH ACCOUNTING FIRM MAY NOT
REVEAL TO IMMUNOGEN ANY INFORMATION LEARNED IN THE COURSE OF SUCH AUDIT OTHER
THAN THE AMOUNT OF ANY SUCH DISCREPANCIES.
IMMUNOGEN AGREES TO HOLD IN STRICT
CONFIDENCE ALL INFORMATION DISCLOSED TO IT, EXCEPT TO THE EXTENT NECESSARY FOR
IMMUNOGEN TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR IF DISCLOSURE IS
REQUIRED BY LAW.
IN THE EVENT THERE WAS AN UNDERPAYMENT BY SANOFI-AVENTIS
HEREUNDER, SANOFI-AVENTIS SHALL PROMPTLY (BUT IN NO EVENT LATER THAN [***]
([***]) DAYS AFTER SUCH PARTY'S RECEIPT OF THE INDEPENDENT AUDITOR'S REPORT SO
CORRECTLY CONCLUDING) MAKE PAYMENT TO IMMUNOGEN OF ANY SHORTFALL.
IN THE EVENT
THAT THERE WAS AN OVERPAYMENT BY SANOFI-AVENTIS HEREUNDER, IMMUNOGEN SHALL
PROMPTLY (BUT IN NO EVENT LATER THAN [***] ([***]) DAYS AFTER IMMUNOGEN'S
RECEIPT OF THE INDEPENDENT AUDITOR'S REPORT SO CORRECTLY CONCLUDING) REFUND TO
SANOFI-AVENTIS THE EXCESS AMOUNT.
IMMUNOGEN SHALL BEAR THE FULL COST OF SUCH
AUDIT UNLESS SUCH AUDIT DISCLOSES AN UNDERREPORTING BY SANOFI-AVENTIS OF MORE
THAN [***] PERCENT ([***]%) OF THE AGGREGATE AMOUNT OF ROYALTIES IN ANY TWELVE
(12) MONTH PERIOD, IN WHICH CASE, SANOFI-AVENTIS SHALL REIMBURSE IMMUNOGEN FOR
ALL COSTS INCURRED BY IMMUNOGEN IN CONNECTION WITH SUCH EXAMINATION AND AUDIT.
4.3.7
OVERDUE PAYMENTS.
ALL ROYALTY PAYMENTS NOT MADE WITHIN THE TIME
PERIOD SET FORTH IN SECTION 4.3.1, AND ALL MILESTONE PAYMENTS NOT MADE WITHIN
THE TIME PERIOD SPECIFIED IN SECTION 4.2.1, SHALL BEAR INTEREST AT A RATE OF ONE
PERCENT (1%) PER MONTH FROM THE DUE DATE UNTIL PAID IN FULL OR, IF LESS, THE
MAXIMUM INTEREST RATE PERMITTED BY APPLICABLE LAWS.
ANY SUCH OVERDUE ROYALTY OR
MILESTONE PAYMENT SHALL, WHEN MADE, BE ACCOMPANIED BY, AND CREDITED FIRST TO,
ALL INTEREST SO ACCRUED.
4.3.8
WITHHOLDING TAXES.
ANY PAYMENTS MADE BY SANOFI-AVENTIS TO
IMMUNOGEN UNDER THIS AGREEMENT SHALL BE FREE AND CLEAR OF ANY TAXES, DUTIES,
LEVIES, FEES OR CHARGES, AND SUCH AMOUNTS SHALL BE REDUCED BY THE AMOUNT
REQUIRED TO BE PAID OR WITHHELD PURSUANT TO ANY APPLICABLE LAW, INCLUDING, BUT
NOT LIMITED TO, UNITED STATES FEDERAL, STATE OR LOCAL TAX LAW ("WITHHOLDING
TAXES").
ANY SUCH WITHHOLDING TAXES REQUIRED BY LAW TO BE PAID OR WITHHELD
SHALL BE AN EXPENSE OF, AND BORNE SOLELY BY, IMMUNOGEN.
SANOFI-AVENTIS, AS
APPLICABLE, SHALL SUBMIT TO IMMUNOGEN REASONABLE PROOF OF PAYMENT OF THE