CONTRARY, (Y) IN THE EVENT THAT THIS AGREEMENT IS ASSIGNED BY A PARTY IN
CONNECTION WITH THE SALE OR TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE BUSINESS
OF SUCH PARTY TO WHICH THE SUBJECT MATTER OF THIS AGREEMENT RELATES, SUCH
ASSIGNMENT WILL NOT PROVIDE THE NON-ASSIGNING PARTIES WITH RIGHTS OR ACCESS TO
THE KNOW-HOW OR PATENT RIGHTS OF THE ACQUIRER OF SUCH ASSIGNING PARTY, AND (Z)
IN THE EVENT OF A CHANGE OF CONTROL OF A PARTY, THE OTHER PARTIES SHALL NOT
ACQUIRE RIGHTS OR ACCESS TO THE KNOW-HOW OR PATENT RIGHTS OF THE ACQUIRER OF
SUCH ACQUIRED PARTY.
16.2
FORCE MAJEURE. NO PARTY WILL BE HELD LIABLE OR RESPONSIBLE TO ANY
OTHER PARTY NOR BE DEEMED TO HAVE DEFAULTED UNDER OR BREACHED THIS AGREEMENT FOR
FAILURE OR REASONABLE DELAY IN FULFILLING OR PERFORMING ANY TERM OF THIS
AGREEMENT (EXCEPT ANY OBLIGATION TO PAY UPFRONT PAYMENTS, MILESTONES, ROYALTIES
OR SUBLICENSE INCOME PAYMENTS) WHEN SUCH FAILURE OR DELAY IS CAUSED BY OR
RESULTS FROM CAUSES BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY, WHICH
MAY INCLUDE, WITHOUT LIMITATION, EMBARGOES, ACTS OF WAR (WHETHER WAR BE DECLARED
OR NOT), INSURRECTIONS, RIOTS, CIVIL COMMOTIONS, ACTS OF TERRORISM, STRIKES,
LOCKOUTS OR OTHER LABOR DISTURBANCES, OR ACTS OF GOD. THE AFFECTED PARTY WILL
NOTIFY THE OTHER PARTIES OF SUCH FORCE MAJEURE CIRCUMSTANCES AS SOON AS
REASONABLY PRACTICAL AND WILL MAKE EVERY REASONABLE EFFORT TO MITIGATE THE
EFFECTS OF SUCH FORCE MAJEURE CIRCUMSTANCES.
16.3
SECTION 365(N) OF THE BANKRUPTCY CODE. ALL RIGHTS AND LICENSES
GRANTED UNDER OR PURSUANT TO ANY SECTION OF THIS AGREEMENT ARE AND WILL
OTHERWISE BE DEEMED TO BE FOR PURPOSES OF SECTION 365(N) OF THE UNITED STATES
BANKRUPTCY CODE (TITLE 11, U.S. CODE), AS AMENDED (THE
25
"BANKRUPTCY CODE"), LICENSES OF RIGHTS TO "INTELLECTUAL PROPERTY" AS DEFINED IN
SECTION 101(35A) OF THE BANKRUPTCY CODE. THE PARTIES WILL RETAIN AND MAY FULLY
EXERCISE ALL OF THEIR RESPECTIVE RIGHTS AND ELECTIONS UNDER THE BANKRUPTCY CODE.
THE PARTIES AGREE THAT EACH PARTY, AS LICENSEE OF SUCH RIGHTS UNDER THIS
AGREEMENT, WILL RETAIN AND MAY FULLY EXERCISE ALL OF ITS RIGHTS AND ELECTIONS
UNDER THE BANKRUPTCY CODE OR ANY OTHER PROVISIONS OF APPLICABLE LAW OUTSIDE THE
UNITED STATES THAT PROVIDE SIMILAR PROTECTION FOR 'INTELLECTUAL PROPERTY.'
THE
PARTIES FURTHER AGREE THAT, IN THE EVENT OF THE COMMENCEMENT OF A BANKRUPTCY
PROCEEDING BY OR AGAINST A PARTY UNDER THE U.S. BANKRUPTCY CODE OR ANALOGOUS
PROVISIONS OF APPLICABLE LAW OUTSIDE THE UNITED STATES, THE PARTY THAT IS NOT
SUBJECT TO SUCH PROCEEDING WILL BE ENTITLED TO A COMPLETE DUPLICATE OF (OR
COMPLETE ACCESS TO, AS APPROPRIATE) SUCH INTELLECTUAL PROPERTY AND ALL
EMBODIMENTS OF SUCH INTELLECTUAL PROPERTY, WHICH, IF NOT ALREADY IN THE NON
SUBJECT PARTY'S POSSESSION, WILL BE PROMPTLY DELIVERED TO IT UPON THE NON
SUBJECT PARTY'S WRITTEN REQUEST THEREOF. ANY AGREEMENTS SUPPLEMENTAL HERETO WILL
BE DEEMED TO BE "AGREEMENTS SUPPLEMENTARY TO" THIS AGREEMENT FOR PURPOSES OF
SECTION 365(N) OF THE BANKRUPTCY CODE.
16.4
NOTICES. ANY NOTICE REQUIRED OR PROVIDED FOR BY THE TERMS OF THIS
AGREEMENT