THE THEN-PRECEDING [***] ([***]) YEARS
OF BIOGEN IDEC'S RECORDS FOR PURPOSES OF VERIFYING BIOGEN IDEC'S ROYALTY
CALCULATIONS; PROVIDED, THAT NO YEAR SHALL BE AUDITED MORE THAN ONCE.
AT BIOGEN
IDEC'S REQUEST, THE ACCOUNTANT SHALL ENTER INTO A CONFIDENTIALITY AGREEMENT WITH
BOTH PARTIES SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 6 LIMITING THE
DISCLOSURE AND USE OF SUCH INFORMATION BY SUCH ACCOUNTANT TO AUTHORIZED
REPRESENTATIVES OF THE PARTIES AND THE PURPOSES GERMANE TO THIS SECTION 5.8.
RESULTS OF ANY SUCH AUDIT SHALL BE MADE AVAILABLE TO BOTH PARTIES AND SHALL BE
BINDING ON BOTH PARTIES.
IMMUNOGEN AGREES TO TREAT THE RESULTS OF ANY SUCH
ACCOUNTANT'S REVIEW OF BIOGEN IDEC'S RECORDS UNDER THIS SECTION 5.8 AS
CONFIDENTIAL INFORMATION OF BIOGEN IDEC SUBJECT TO THE TERMS OF SECTION 6.
IF
ANY SUCH AUDIT REVEALS A DEFICIENCY IN THE CALCULATION OF ROYALTIES RESULTING
FROM ANY UNDERPAYMENT BY BIOGEN IDEC, BIOGEN IDEC SHALL PROMPTLY PAY IMMUNOGEN
THE AMOUNT REMAINING TO BE PAID (PLUS INTEREST THEREON AT THE RATE PROVIDED IN
SECTION 5.7 ABOVE), AND IF SUCH UNDERPAYMENT IS BY [***] PERCENT ([***]%) OR
MORE, BIOGEN IDEC
CONFIDENTIAL
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 Act of
1934.
36
SHALL PAY THE COSTS AND EXPENSES OF THE AUDIT.
IF SUCH AUDIT REVEALS
OVERPAYMENTS BY BIOGEN IDEC IN ANY YEAR, SUCH AMOUNTS SHALL BE REFUNDED BY
IMMUNOGEN TO BIOGEN IDEC.
6.
TREATMENT OF CONFIDENTIAL INFORMATION
6.1
CONFIDENTIAL INFORMATION.
IMMUNOGEN AND
BIOGEN IDEC EACH RECOGNIZE THAT THE OTHER PARTY'S CONFIDENTIAL INFORMATION
CONSTITUTES HIGHLY VALUABLE AND PROPRIETARY CONFIDENTIAL INFORMATION.
FOR A
PERIOD OF [***] ([***]) YEARS AFTER THE RECEIPT OF ANY SUCH CONFIDENTIAL
INFORMATION FROM THE DISCLOSING PARTY HEREUNDER, SUBJECT TO THE TERMS OF THIS
SECTION 6, THE RECEIVING PARTY SHALL KEEP CONFIDENTIAL AND NOT DISCLOSE (BY
PUBLICATION OR OTHERWISE) SUCH CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY,
AND SHALL NOT USE, PUBLISH OR OTHERWISE DISCLOSE CONFIDENTIAL INFORMATION OF THE
DISCLOSING PARTY FOR ANY PURPOSE OTHER THAN THOSE PURPOSES CONTEMPLATED BY THIS
AGREEMENT.
EACH RECEIVING PARTY SHALL TAKE SUCH ACTION, AND SHALL CAUSE ITS
AFFILIATES OR SUBLICENSEES TO TAKE SUCH ACTION, TO PRESERVE THE CONFIDENTIALITY
OF THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION AS IT WOULD CUSTOMARILY TAKE
TO PRESERVE THE CONFIDENTIALITY OF ITS OWN CONFIDENTIAL INFORMATION, USING, IN
ALL SUCH CIRCUMSTANCES, NOT LESS THAN REASONABLE CARE. EACH RECEIVING PARTY,
UPON THE REQUEST OF THE DISCLOSING PARTY, WILL RETURN ALL THE CONFIDENTIAL
INFORMATION DISCLOSED OR TRANSFERRED TO IT BY THE DISCLOSING PARTY PURSUANT TO
THIS AGREEMENT OTHER THAN CONFIDENTIAL INFORMATION THAT WAS INCLUDED IN A FILING
WITH A REGULATORY AUTHORITY, INCLUDING ALL COPIES AND EXTRACTS OF DOCUMENTS AND
ALL MANIFESTATIONS IN WHATEVER FORM, WITHIN [***] ([***]) DAYS OF THE
TERMINATION OR EXPIRATION OF THIS AGREEMENT; PROVIDED HOWEVER, THAT A RECEIVING
PARTY MAY RETAIN (A) ANY CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY
RELATING TO ANY LICENSE WHICH EXPRESSLY SURVIVES TERMINATION AND (B) ONE (1)
COPY OF ALL