Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Ace of
1934.
18
DEVELOP AND COMMERCIALIZE LICENSED PRODUCTS, AND TO UNDERTAKE INVESTIGATIONS AND
ACTIONS REQUIRED TO OBTAIN APPROPRIATE REGULATORY APPROVALS NECESSARY TO MARKET
LICENSED PRODUCTS, IN THE FIELD AND IN THE TERRITORY, SUCH COMMERCIALLY
REASONABLE EFFORTS TO BE IN ACCORDANCE WITH THE EFFORTS AND RESOURCES CENTOCOR
WOULD USE FOR A COMPOUND OWNED BY IT OR TO WHICH IT HAS RIGHTS, WHICH IS OF
SIMILAR MARKET POTENTIAL AT A SIMILAR STAGE IN DEVELOPMENT AS THE APPLICABLE
LICENSED PRODUCT, TAKING INTO ACCOUNT THE PROPRIETARY POSITION OF THE LICENSED
PRODUCT, THE RELATIVE POTENTIAL SAFETY AND EFFICACY OF THE LICENSED PRODUCT, THE
REGULATORY REQUIREMENTS INVOLVED IN ITS DEVELOPMENT, COMMERCIALIZATION AND
REGULATORY APPROVAL, THE COST OF GOODS AND AVAILABILITY OF CAPACITY TO
MANUFACTURE AND SUPPLY THE LICENSED PRODUCT AT COMMERCIAL SCALE, AND OTHER
RELEVANT FACTORS INCLUDING, WITHOUT LIMITATION, TECHNICAL, LEGAL, SCIENTIFIC OR
MEDICAL FACTORS.
IN DETERMINING WHETHER CENTOCOR IS USING THE EFFORTS DESCRIBED
IN THIS SECTION 4.4 TO DEVELOP A LICENSED PRODUCT THE PARTIES SHALL CONSIDER,
AMONG OTHER THINGS, WHETHER SUCH LICENSED PRODUCT IS IN ACTIVE DEVELOPMENT.
"ACTIVE DEVELOPMENT" SHALL MEAN THAT AT ANY GIVEN TIME CENTOCOR SHALL BE
DILIGENTLY ENGAGING IN ONE OR MORE OF THE FOLLOWING DEVELOPMENT ACTIVITIES FOR A
GIVEN LICENSED PRODUCT:
[*************************************************************] FROM THE
[************************] OR [****************************] FOR ANY
[********************************************************] BEING [*******] OR
[***************] OR [*******************************************************
**************************************************************] AND
[*******************] OR [********************] AND [*****************] FROM A
[**********************] AND [********************] WITHIN [******************]
TO [********] ANY OF THE PRECEDING ACTIVITIES.
NOTWITHSTANDING THE FOREGOING,
CENTOCOR SHALL NOT BE CONSIDERED TO HAVE FAILED TO MEET ITS OBLIGATION TO USE
SUCH EFFORTS OR HAVE A LICENSED PRODUCT IN ACTIVE DEVELOPMENT IF SUCH FAILURE IS
DUE TO THE FAILURE ON THE PART OF IMMUNOGEN TO PROVIDE PRECLINICAL OR CLINICAL
MATERIALS UNDER ARTICLE 4 HEREOF.
IN THE EVENT THAT CENTOCOR FAILS TO USE
COMMERCIALLY REASONABLE EFFORTS AS REQUIRED HEREUNDER, THEN, IMMUNOGEN'S SOLE
REMEDY SHALL BE THE RIGHT, IN ITS SOLE DISCRETION TO (I) TERMINATE THE LICENSES
GRANTED UNDER SECTION 2.1 THIS AGREEMENT FOR BREACH UNDER SECTION 8.2(B) BELOW
(INCLUDING THE NOTICE AND CURE PROVISIONS
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission Pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Ace of
1934.
19
THEREIN) OR (II) CONVERT THE LICENSES GRANTED UNDER SECTION 2.1 OF THIS
AGREEMENT FROM EXCLUSIVE LICENSES TO NON-EXCLUSIVE LICENSES, IN EITHER CASE ONLY
AS SUCH LICENSES APPLY TO SUCH LICENSED PRODUCT IN SUCH COUNTRY, WHICH
TERMINATION OR CONVERSION, AS THE CASE MAY BE, SHALL BE EFFECTIVE UPON
EXPIRATION OF THE CURE PERIOD SPECIFIED IN 8.2(B) BELOW PROVIDED THAT SUCH
FAILURE REMAINS UNCURED UPON SUCH EXPIRATION.
3.3
UPDATES AND REPORTS; NOTIFICATION OF
MILESTONES; EXCHANGE OF ADVERSE EVENT INFORMATION.
(A)
UPDATES AND REPORTS.
CENTOCOR SHALL KEEP
IMMUNOGEN INFORMED OF THE PROGRESS OF CENTOCOR'S EFFORTS TO DEVELOP AND
COMMERCIALIZE LICENSED PRODUCTS IN THE FIELD IN THE TERRITORY BY PROVIDING
IMMUNOGEN WITH BRIEF WRITTEN REPORTS NO LESS FREQUENTLY