LICENSE AGREEMENT SHALL BECOME
EFFECTIVE (SUCH CURE OR ACORDA'S TERMINATION THAT SUCH CURE IS LIKELY TO OCCUR,
"A CURABLE ELAN AGREEMENT CURE").
(II)
IN THE EVENT LICENSEE DISAGREES WITH
ACORDA'S CONCLUSION THAT LICENSEE HAS FAILED TO UTILIZE COMMERCIALLY REASONABLE
EFFORTS OR OTHERWISE HAS FAILED TO SATISFY THE REQUIREMENTS SET FORTH IN
SUBCLAUSE (B)(I) OR (II) WITH RESPECT TO THE COMMERCIALIZATION OF THE LICENSED
PRODUCT IN THE FIELD IN THE TERRITORY OR A COUNTRY(IES) IN THE TERRITORY
PURSUANT TO THIS AGREEMENT (OTHER THAN ACORDA'S DETERMINATION THAT (A) LICENSEE
HAS FAILED TO EFFECT THE FIRST COMMERCIAL SALE IN ANY COUNTRY IN THE TERRITORY
WITHIN [*****] OF RECEIPT OF REGULATORY APPROVAL IN SUCH COUNTRY OR (B) LICENSEE
HAS OTHERWISE FAILED TO USE COMMERCIALLY REASONABLE EFFORTS TO COMMERCIALIZE THE
LICENSED PRODUCT IN THE FIELD IN THE TERRITORY IN A MANNER CONSISTENT WITH
ACORDA'S OBLIGATIONS PURSUANT TO SECTION 2.11 OF THE ELAN LICENSE AGREEMENT
(SUCH DETERMINATION, A "TIME-CONSTRAINED COMMERCIAL DILIGENCE DETERMINATION")),
IT MAY SEEK THE DETERMINATION OF AN EXPERT PANEL IN ACCORDANCE WITH
SECTION 3.5(C)(III) TO DETERMINE IF LICENSEE HAS FAILED TO USE COMMERCIALLY
REASONABLE EFFORTS TO COMMERCIALIZE THE LICENSED PRODUCT IN THE FIELD IN THE
TERRITORY.
MEMBERS OF SUCH EXPERT PANEL SHALL HAVE EXPERTISE IN THE MATTERS
CONCERNING THE UNRESOLVED DISPUTE.
DECISIONS OF THE EXPERT PANEL UNDER THIS
SECTION 7.2(C)(II) SHALL BE BINDING ON THE PARTIES, SUBJECT TO ELAN'S RIGHTS
UNDER THE ELAN LICENSE AGREEMENT AND THE ELAN SUPPLY AGREEMENT.
IF LICENSEE IS
FOUND BY THE EXPERT PANEL TO HAVE MATERIALLY BREACHED ITS COMMERCIALIZATION
DILIGENCE OBLIGATIONS AS DESCRIBED IN THIS SECTION7.2(C)(II), LICENSEE SHALL
HAVE [*****] TO CORRECT SUCH BREACH.
IF LICENSEE HAS NOT CURED SUCH BREACH
WITHIN SUCH [*****] PERIOD, ACORDA MAY, UNDER SECTION 15.2(B) OF THIS AGREEMENT,
IMMEDIATELY TERMINATE THIS AGREEMENT FOR THE COUNTRY(IES) WITH RESPECT TO WHICH
SUCH FAILURE HAS OCCURRED UPON PRIOR WRITTEN NOTICE TO LICENSEE AND WITH THE
EFFECTS SET FORTH IN SECTION 15.3(A).
*****Omitted pursuant to a confidential treatment request.
47
(III)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
SECTION 7.2(C)(I) OR (II), IN THE EVENT OF A TIME-CONSTRAINED COMMERCIAL
DILIGENCE DETERMINATION:
(1) ACORDA'S EXERCISE OF SUCH TERMINATION RIGHT SHALL
NOT BE SUBJECT TO THE DISPUTE RESOLUTION PROCEDURES OF SECTIONS 3.5 AND 16.8 AND
SHALL NOT LIMIT ACORDA'S OTHER RIGHTS UNDER THIS AGREEMENT; (2) LICENSEE SHALL
NOT BE ENTITLED TO INJUNCTIVE RELIEF TO PREVENT OR DELAY SUCH TERMINATION;
(3) LICENSEE SHALL ONLY BE ENTITLED TO MONETARY DAMAGES IN THE EVENT THAT IT
THEREAFTER DISPUTES SUCH TERMINATION PURSUANT TO SECTION 16.8 AND THE RELEVANT
COURT DETERMINES AS A FINAL, NON-APPEALABLE MATTER THAT ACORDA HAD NOT PROPERLY
EXERCISED ITS TERMINATION RIGHT HEREUNDER; AND (4) ACORDA SHALL HAVE THE RIGHTS
SET FORTH IN SECTION 15.3(A) AND LICENSEE SHALL CONDUCT THE TRANSFER OF
INFORMATION AND MATERIALS AS SET FORTH IN SECTION 15.3(A) ON AN EXPEDITED BASIS
TO ENABLE ACORDA TO MEET ITS OBLIGATIONS UNDER THE ELAN LICENSE AGREEMENT.
(D)
IF LICENSEE INDICATES TO ACORDA THAT IT DOES NOT INTEND TO FILE TO
OBTAIN REGULATORY APPROVAL OR TO COMMERCIALIZE LICENSED PRODUCT IN A