ANY DISPUTE,
WHICH OPINION SHALL EXPLICITLY ACCEPT EITHER THE CLAIMANT'S PROPOSAL OR THE
RESPONDENT'S PROPOSAL IN ITS ENTIRETY (THE "FINAL DECISION").
THE ARBITRATION
PANEL SHALL NOT HAVE THE AUTHORITY TO REACH A FINAL DECISION THAT PROVIDES
REMEDIES OR REQUIRES PAYMENTS OTHER THAN THOSE SET FORTH IN THE CLAIMANT'S
PROPOSAL OR THE RESPONDENT'S PROPOSAL.
THE CONCURRENCE OF TWO (2) ARBITRATORS
SHALL BE SUFFICIENT FOR THE ENTRY OF A FINAL DECISION.
THE ARBITRATORS SHALL
ISSUE A FINAL DECISION WITHIN ONE (1) MONTH FROM THE LATER OF (I) THE LAST DAY
FOR SUBMISSION OF PROPOSALS UNDER SECTION 14.10.2(B) ABOVE OR (II) THE DATE OF
THE FINAL HEARING ON ANY DISPUTE HELD BY THE ARBITRATION PANEL.
A FINAL
DECISION SHALL BE BINDING ON BOTH PARTIES.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
37
14.11
INJUNCTIVE RELIEF.
THE PARTIES HEREBY ACKNOWLEDGE THAT A
BREACH OF THEIR RESPECTIVE OBLIGATIONS UNDER ARTICLE 10 HEREOF MAY CAUSE
IRREPARABLE HARM AND THAT THE REMEDY OR REMEDIES AT LAW FOR ANY SUCH BREACH MAY
BE INADEQUATE.
THE PARTIES HEREBY AGREE THAT, IN THE EVENT OF ANY SUCH BREACH,
IN ADDITION TO ALL OTHER AVAILABLE REMEDIES HEREUNDER, THE NON-BREACHING PARTY
OR PARTIES SHALL HAVE THE RIGHT TO SEEK EQUITABLE RELIEF TO ENFORCE ARTICLE 10
HEREOF.
14.12
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER WITH THE
RELATED AGREEMENTS, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF.
ALL EXPRESS OR IMPLIED AGREEMENTS AND
UNDERSTANDINGS, EITHER ORAL OR WRITTEN, HERETOFORE MADE ARE EXPRESSLY MERGED IN
AND MADE A PART OF THIS AGREEMENT.
THIS AGREEMENT MAY BE AMENDED, OR ANY TERM
HEREOF MODIFIED, ONLY BY A WRITTEN INSTRUMENT DULY EXECUTED BY BOTH PARTIES
HERETO.
EACH OF THE PARTIES HEREBY ACKNOWLEDGES THAT THIS AGREEMENT AND THE
RELATED AGREEMENTS ARE ALL THE RESULT OF MUTUAL NEGOTIATION AND THEREFORE ANY
AMBIGUITY IN THEIR RESPECTIVE TERMS SHALL NOT BE CONSTRUED AGAINST THE DRAFTING
PARTY.
14.13
SECTION 365(N) OF THE BANKRUPTCY CODE.
ALL RIGHTS AND
LICENSES NOW OR HEREAFTER GRANTED UNDER OR PURSUANT TO THIS AGREEMENT, INCLUDING
IN THE EVENT OF TERMINATION PURSUANT TO ARTICLE 12 OF THE MANUFACTURING,
MARKETING AND SALES AGREEMENT, ARE RIGHTS TO "INTELLECTUAL PROPERTY" (AS DEFINED
IN SECTION 101(35A) OF TITLE 11 OF THE UNITED STATES CODE, AS AMENDED (SUCH
TITLE 11, THE "BANKRUPTCY CODE")).
THE LICENSING PARTY HEREBY GRANTS TO THE
LICENSEE PARTY A RIGHT OF ACCESS AND TO OBTAIN POSSESSION OF AND TO BENEFIT FROM
(I) COPIES OF RESEARCH DATA, (II) LABORATORY SAMPLES, (III)
PRODUCT SAMPLES,
(IV) FORMULAS, (V) LABORATORY NOTES AND NOTEBOOKS, (VI) DATA AND RESULTS RELATED
TO CLINICAL TRIALS, (VII) REGULATORY FILINGS AND APPROVALS, (VIII) RIGHTS OF
REFERENCE IN RESPECT OF REGULATORY FILINGS AND APPROVALS, (IX) MANUFACTURING
PROCEDURE DOCUMENTATION AND MANUFACTURING RECORDS, (X) MARKETING, ADVERTISING
AND PROMOTIONAL MATERIALS, AND (XI) ALL OTHER EMBODIMENTS OF SUCH INTELLECTUAL
PROPERTY, THAT ARE IN THE LICENSING PARTY'S POSSESSION OR CONTROL, FREELY
LICENSEABLE WITHOUT FURTHER PAYMENT OR RESTRICTION BY THE LICENSING