milestone hereunder for each Licensed Product as provided in Section 3.3(b)
above.
5.2
RESEARCH FUNDING.
IN CONSIDERATION OF THE
PERFORMANCE BY IMMUNOGEN OF THE RESEARCH PROGRAM, CENTOCOR WILL PAY IMMUNOGEN
FOR ALL FTES USED BY IMMUNOGEN IN SUCH RESEARCH PROGRAM AND PURSUANT TO THE
RESEARCH BUDGET, AS DESCRIBED IN THE RESEARCH PLAN AND/OR AGREED TO BY THE
PARTIES, AT A RATE PER FTE EQUAL TO THE FTE RATE.
FROM TIME TO TIME AFTER THE
EFFECTIVE DATE, THE PARTIES SHALL AGREE IN WRITING UPON THE NUMBER OF FTES
REQUIRED OF IMMUNOGEN FOR AGREED-UPON PORTIONS OF THE RESEARCH PROGRAM AND
CENTOCOR SHALL PAY THE FTE COST FOR THE FTES REFLECTED IN SUCH WRITTEN
AGREEMENT.
IF, AT ANY TIME DURING THE TERM OF THIS AGREEMENT, IMMUNOGEN
DETERMINES THAT THE ACTUAL NUMBER OF FTES FOR A PARTICULAR PERIOD AGREED TO BY
THE PARTIES IS [******] TO [******] BY [********] THE FTE NUMBER SET FORTH IN
SUCH WRITTEN AGREEMENT FOR SUCH PERIOD, IMMUNOGEN SHALL GIVE CENTOCOR PROMPT
WRITTEN NOTICE OF SAME AND THE PARTIES SHALL DISCUSS IN GOOD FAITH WHETHER TO
[********] THE [***] OF SUCH [********] OR TO [********] THE [********] TO BE
[********], SUCH THAT SUCH [************] ARE [********] IMMUNOGEN WILL MAINTAIN
COMPLETE AND ACCURATE RECORDS WHICH ARE RELEVANT TO ITS EXPENDITURE OF RESEARCH
PROGRAM FUNDING PROVIDED TO IT BY CENTOCOR PURSUANT TO THIS ARTICLE 5.3 AS WELL
AS THE PURCHASE OF ANY DEDICATED EQUIPMENT PURSUANT TO SECTION 4.4 HEREOF. AT
THE REQUEST OF CENTOCOR, UPON AT LEAST [********] BUSINESS DAYS' PRIOR WRITTEN
NOTICE, BUT NO MORE OFTEN THAN ONCE PER YEAR, AND AT ITS SOLE EXPENSE (EXCEPT AS
OTHERWISE PROVIDED HEREIN), IMMUNOGEN SHALL PERMIT AN INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANT REASONABLY SELECTED BY CENTOCOR AND REASONABLY ACCEPTABLE TO
IMMUNOGEN TO INSPECT (DURING REGULAR BUSINESS HOURS) THE RELEVANT RECORDS
REQUIRED TO BE MAINTAINED BY IMMUNOGEN UNDER THIS SECTION 5.2.
AT CENTOCOR'S
REQUEST, THE ACCOUNTANT SHALL BE ENTITLED TO AUDIT THE THEN-PRECEDING [*****]
YEARS OF IMMUNOGEN'S RECORDS FOR PURPOSES OF VERIFYING IMMUNOGEN'S RECORDS
CONCERNING FTES. TO THE EXTENT REQUESTED BY IMMUNOGEN, 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 5.2.
THE RESULTS OF ANY SUCH AUDIT SHALL
BE MADE AVAILABLE TO BOTH PARTIES AND SHALL BE BINDING ON BOTH PARTIES.
CENTOCOR AGREES TO TREAT THE RESULTS OF ANY SUCH
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 Ace of
1934.
31
ACCOUNTANT'S REVIEW OF IMMUNOGEN'S RECORDS UNDER THIS SECTION 5.2 AS
CONFIDENTIAL INFORMATION OF IMMUNOGEN SUBJECT TO THE TERMS OF SECTION 6.
IF ANY
SUCH AUDIT REVEALS THAT THE ACTUAL FTES EXPENDED BY IMMUNOGEN ARE LESS THAN THE
AMOUNT OF FTES IMMUNOGEN INDICATED WAS EXPENDED, IMMUNOGEN SHALL PROMPTLY PAY
CENTOCOR THE AMOUNT OF OVERPAYMENT (PLUS