THE COMMERCIALIZATION OF ALDURAZYME.
3.1.4
RIGHTS OF BIOMARIN/GENZYME LLC TO PATENT RIGHTS OR
TECHNOLOGY DEVELOPED OUTSIDE THE PROGRAM.
IN THE EVENT THAT EITHER BIOMARIN OR
GENZYME DEVELOPS, ACQUIRES OR OTHERWISE CONTROLS PATENT RIGHTS, TECHNOLOGY OR
MANUFACTURING KNOW-HOW AFTER THE ORIGINAL DATE OF EXECUTION OTHER THAN IN
CONNECTION WITH THE PROGRAM AND SUCH PATENT RIGHTS, TECHNOLOGY OR MANUFACTURING
KNOW-HOW ARE USEFUL IN THE FIELD ("ADDITIONAL TECHNOLOGY"), THE PARTY
CONTROLLING SUCH ADDITIONAL TECHNOLOGY HEREBY GRANTS TO BIOMARIN/GENZYME LLC AN
OPTION EXERCISABLE AT THE DISCRETION OF THE STEERING COMMITTEE TO OBTAIN AN
EXCLUSIVE, IRREVOCABLE (DURING THE TERM) RIGHT AND LICENSE, WITH THE RIGHT TO
GRANT SUBLICENSES, TO SUCH ADDITIONAL TECHNOLOGY LIMITED TO USE IN THE FIELD AND
IN THE TERRITORY TO THE EXTENT NECESSARY OR APPROPRIATE TO ENABLE
BIOMARIN/GENZYME LLC TO DEVELOP, MAKE, HAVE MADE, USE, OFFER FOR SALE, SELL,
HAVE SOLD, IMPORT AND EXPORT COLLABORATION PRODUCTS, IN EACH CASE SUBJECT ONLY
TO BIOMARIN/GENZYME LLC'S UNDERTAKING TO PAY (A) A COMMERCIALLY REASONABLE
PORTION OF ALL COSTS INCURRED BY BIOMARIN OR GENZYME, AS THE CASE MAY BE, TO
ACQUIRE OR DEVELOP SUCH ADDITIONAL TECHNOLOGY, (B) A COMMERCIALLY REASONABLE
PORTION OF ANY AND ALL DEVELOPMENT COSTS RELATING TO THE ADDITIONAL TECHNOLOGY
INCURRED BY BIOMARIN OR GENZYME, AS THE CASE MAY BE, SINCE THE DATE SUCH PARTY
ACQUIRED OR DEVELOPED SUCH ADDITIONAL TECHNOLOGY AND (C) A PRO RATA SHARE OF ALL
ROYALTIES, SUBLICENSE FEES AND OTHER COSTS OR EXPENSES PAYABLE TO THIRD PARTIES
UNDER A THIRD PARTY AGREEMENT ASSOCIATED WITH THE ACQUISITION OR EXERCISE OF
SUCH LICENSE BY OR ON BEHALF OF BIOMARIN/GENZYME LLC, ALLOCATED BASED UPON THE
PROPORTION OF SUCH COSTS ATTRIBUTABLE TO THE ACQUISITION OR USE OF SUCH
ADDITIONAL TECHNOLOGY BY BIOMARIN/GENZYME LLC; PROVIDED, HOWEVER, THAT IF
BIOMARIN OR GENZYME, AS THE CASE MAY BE, HAS MORE LIMITED RIGHTS TO SUCH
ADDITIONAL TECHNOLOGY THAT THOSE DESCRIBED ABOVE, THE LICENSE SUBJECT TO
BIOMARIN/GENZYME LLC'S OPTION HEREUNDER SHALL BE CONSISTENT WITH THE RIGHTS HELD
BY BIOMARIN OR GENZYME, AS THE CASE MAY BE, WITH RESPECT TO SUCH ADDITIONAL
TECHNOLOGY.
SUBJECT TO BIOMARIN/GENZYME LLC AGREEING TO PAY THE APPROPRIATE
AMOUNTS DUE TO A THIRD PARTY UNDER AN AGREEMENT WITH A PARTY AS A RESULT OF THE
ACQUISITION OF ADDITIONAL TECHNOLOGY AND/OR EXERCISE OF THE RIGHTS THEREIN BY OR
ON BEHALF OF BIOMARIN/GENZYME LLC, THE SAME SHALL BE A "THIRD PARTY AGREEMENT"
FOR PURPOSES OF THIS AGREEMENT.
3.1.5
EXTERNAL PRODUCTS.
IF AT ANY TIME DURING THE TERM
EITHER GENZYME, BIOMARIN OR THEIR RESPECTIVE AFFILIATES INTENDS TO COLLABORATE
WITH A THIRD PARTY REGARDING THE DEVELOPMENT AND/OR COMMERCIALIZATION OF A GENE
THERAPY PRODUCT FOR THE TREATMENT OR PREVENTION OF MPS I OR OTHER
ALPHA-L-IDURONIDASE DEFICIENCIES (AN "EXTERNAL PRODUCT"), SUCH PARTY (THE
"PROPOSING PARTY") SHALL PROVIDE WRITTEN NOTICE OF ITS INTENT TO THE STEERING
COMMITTEE.
THE PROPOSING PARTY AND THE STEERING COMMITTEE SHALL NEGOTIATE IN
GOOD FAITH THE TERMS AND CONDITIONS UPON WHICH THE PROPOSING PARTY AND
BIOMARIN/GENZYME LLC WOULD BE WILLING TO COLLABORATE FOR SUCH PURPOSES.
IF THE
PROPOSING PARTY AND THE STEERING COMMITTEE ARE UNABLE TO AGREE UPON SUCH