AFFILIATES SHALL HAVE THE RIGHT TO INDEPENDENTLY RETAIN LEGAL COUNSEL
AND CONSULTANTS, AT ITS SOLE COST AND EXPENSE, BUT SUCH COUNSEL OR CONSULTANTS
SHALL NOT HAVE THE RIGHT TO AFFECT ARRAY'S SOLE MANAGEMENT OF THE PROSECUTION OF
THE ACTION.
(V)
ARRAY SHALL, HOWEVER, NOT HAVE THE RIGHT TO ENTER INTO ANY
SETTLEMENT OR CONSENT TO ANY CLAIM TO THE EFFECT THAT THE PATENT PROTECTION
OFFERED UNDER ANY PART OF THE ARRAY PATENTS OR CHEMICAL PATENTS OR JOINT PATENTS
OR JOINT CHEMICAL PATENTS COVERING THE CANDIDATE DRUGS AND/OR THE LICENSED
PRODUCTS WOULD BE MATERIALLY NEGATIVELY AFFECTED, WITHOUT THE CONSENT OF AZ,
SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD.
(E)
SHOULD ARRAY NOT TAKE APPROPRIATE AND
DILIGENT ACTION WITH RESPECT TO ANY INFRINGEMENT BY A THIRD PARTY AS MENTIONED
UNDER SECTION 8.3.3(D) WITHIN ONE HUNDRED AND TWENTY (120) DAYS AFTER RECEIVING
NOTICE OF ANY INFRINGEMENT OR POSSIBLE INFRINGEMENT, OR IN THE CASE OF AN ANDA
ANY CERTIFICATE FILED UNDER THE ANDA ACT WITHIN THIRTY (30) DAYS, THEN AZ OR ITS
AFFILIATES SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO TAKE SUCH ACTION, AT
ITS OWN EXPENSE, IN ITS OWN NAME, AND THE RIGHT TO ENFORCE AND COLLECT ANY
JUDGMENT THEREON.
8.4
RIGHTS IN BANKRUPTCY.
ALL RIGHTS AND
LICENSES GRANTED UNDER OR PURSUANT TO THIS AGREEMENT BY ARRAY OR AZ ARE, AND
SHALL OTHERWISE BE DEEMED TO BE, FOR PURPOSES OF SECTION 365(N) OF THE UNITED
STATES BANKRUPTCY CODE, LICENSES OF RIGHTS TO "INTELLECTUAL PROPERTY" AS DEFINED
UNDER SECTION 101 OF THE UNITED STATES BANKRUPTCY CODE.
THE PARTIES AGREE THAT
THE PARTIES, AS LICENSEES OF SUCH RIGHTS
39
UNDER THIS AGREEMENT, SHALL RETAIN AND MAY FULLY EXERCISE ALL OF THEIR RIGHTS
AND ELECTIONS UNDER THE UNITED STATES BANKRUPTCY CODE.
THE PARTIES FURTHER
AGREE THAT, IN THE EVENT OF THE COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY OR
AGAINST A PARTY UNDER THE UNITED STATES BANKRUPTCY CODE, THE PARTY THAT IS NOT A
PARTY TO SUCH PROCEEDING SHALL BE ENTITLED TO A COMPLETE DUPLICATE OF (OR
COMPLETE ACCESS TO, AS APPROPRIATE) ANY SUCH INTELLECTUAL PROPERTY AND ALL
EMBODIMENTS OF SUCH INTELLECTUAL PROPERTY COMMENSURATE WITH THE SCOPE OF THE
LICENSE THEREUNDER, WHICH, IF NOT ALREADY IN THE NON SUBJECT PARTY'S POSSESSION,
SHALL BE PROMPTLY DELIVERED TO IT (A) UPON ANY SUCH COMMENCEMENT OF A BANKRUPTCY
PROCEEDING UPON THE NON SUBJECT PARTY'S WRITTEN REQUEST THEREFOR, UNLESS THE
PARTY SUBJECT TO SUCH PROCEEDING CONTINUES TO PERFORM ALL OF ITS OBLIGATIONS
UNDER THIS AGREEMENT OR (B) IF NOT DELIVERED UNDER CLAUSE (A) ABOVE, FOLLOWING
THE REJECTION OF THIS AGREEMENT BY OR ON BEHALF OF THE PARTY SUBJECT TO SUCH
PROCEEDING UPON WRITTEN REQUEST THEREFOR BY THE NON SUBJECT PARTY.
ARTICLE IX - CONFIDENTIALITY
9.1
CONFIDENTIALITY; EXCEPTIONS.
EXCEPT TO THE
EXTENT EXPRESSLY AUTHORIZED BY THIS AGREEMENT OR OTHERWISE AGREED IN WRITING,
THE PARTIES AGREE THAT THE RECEIVING PARTY SHALL KEEP CONFIDENTIAL AND SHALL NOT
PUBLISH OR OTHERWISE DISCLOSE OR USE FOR ANY PURPOSE OTHER THAN AS PROVIDED FOR
IN THIS AGREEMENT ANY INFORMATION AND OTHER CONFIDENTIAL AND PROPRIETARY