FEES, MILESTONE PAYMENTS AND ROYALTIES
DUE PURSUANT TO ARTICLE 4.
UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR UNDER
THIS AGREEMENT, UPON SUCH TERMINATION, NK SHALL RETURN ALL MATERIALS INCLUDED
WITHIN THE TERMINATED LICENSED PATENT RIGHTS TO PHS OR PROVIDE PHS WITH
CERTIFICATION OF THE DESTRUCTION THEREOF.
IF AND TO THE EXTENT PHS, OR ANY
OTHER LICENSOR, SHALL MODIFY NEOPHARM'S LICENSE TO THE LICENSED PATENT RIGHTS,
THE SUBLICENSE TO NK GRANTED HEREUNDER SHALL BE MODIFIED TO THE SAME EXTENT,
MUTATIS MUTANDIS.
ARTICLE 12
RIGHTS AND DUTIES UPON
TERMINATION OR EXPIRATION; REMEDIES
12.1
MONIES PAID OR DUE.
UPON THE TERMINATION OF THIS AGREEMENT, EACH
PARTY SHALL HAVE THE RIGHT TO RETAIN ALL PAYMENTS ALREADY RECEIVED FROM THE
OTHER PARTY PURSUANT TO THIS AGREEMENT, AND EACH PARTY SHALL PAY TO THE OTHER
ALL SUMS ACCRUED HEREUNDER WHICH ARE THEN DUE.
FURTHER, WITHIN SIXTY (60) DAYS
OF ANY TERMINATION, NK SHALL PROVIDE AN ACCOUNTING FROM AN INDEPENDENT
ACCOUNTANT OR AUDITOR TO NEOPHARM OF ALL NET SALES BY NK OR NK'S AFFILIATES.
12.2
SURVIVAL OF RIGHTS.
THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT SHALL NOT AFFECT THE ACCRUED RIGHTS AND OBLIGATIONS OF NEOPHARM OR NK
ARISING UNDER OR OUT OF THIS AGREEMENT OR CLAIMS ARISING DURING THE TERM AND THE
ADDITIONAL TERM, AND THE OBLIGATIONS RELATING TO SUCH CLAIMS.
IN ADDITION, ANY
PROVISION REQUIRED TO INTERPRET AND ENFORCE THE PARTIES' RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT SHALL SURVIVE TO THE EXTENT REQUIRED FOR THE FULL
OBSERVATION AND PERFORMANCE OF THIS AGREEMENT BY THE PARTIES.
NOTWITHSTANDING
ANY PROVISION HEREIN TO THE CONTRARY, THE PROVISIONS OF SECTIONS 2.5, 6.5, 6.6,
8.4, 8.5, 14.5 AND 14.10 AND THE PROVISIONS OF ARTICLES 9, 10, 11, 12 AND 13
SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AS LONG AS
NECESSARY.
12.3
TRANSITION UPON TERMINATION.
(A) IF THIS AGREEMENT IS TERMINATED
BY NEOPHARM DUE TO REASONS ATTRIBUTABLE TO NK AS PROVIDED HEREIN, NK SHALL UPON
TERMINATION COOPERATE WITH NEOPHARM AND/OR ITS AFFILIATES TO TRANSFER BACK TO
NEOPHARM ALL TITLE AND INTEREST IN AND TO THE LICENSED TECHNOLOGY TO USE SOLELY
WITH THE PRODUCTS.
WITH RESPECT TO ANY CONFIDENTIAL INFORMATION OF NEOPHARM, NK
SHALL, UPON NEOPHARM'S REQUEST, RETURN TO NEOPHARM OR DESTROY ALL SUCH
CONFIDENTIAL INFORMATION AFTER THE EXPIRATION OF THE TERM AND THE ADDITIONAL
TERM AND CERTIFY ITS DESTRUCTION.
(B) IF THIS AGREEMENT IS TERMINATED BY NK DUE
TO REASONS ATTRIBUTABLE TO NEOPHARM AS PROVIDED HEREIN, NEOPHARM SHALL, UPON
NK'S REQUEST, RETURN
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TO NK OR DESTROY ALL CONFIDENTIAL INFORMATION OF NK AFTER THE EXPIRATION OF THE
TERM AND THE ADDITIONAL TERM AND CERTIFY ITS DESTRUCTION.
12.4
DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY
CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY IN CONNECTION WITH THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OPPORTUNITIES OR
INJURY TO PERSON OR PROPERTY RESULTING FROM THE TERMINATION OF THIS AGREEMENT.
12.5
TERMINATION NOT SOLE REMEDY.
TERMINATION IS NOT THE SOLE REMEDY
UNDER THIS AGREEMENT AND, WHETHER OR NOT TERMINATION IS EFFECTED, ALL OTHER
REMEDIES SHALL REMAIN AVAILABLE EXCEPT AS SPECIFICALLY