Common use of Section 365(n) Clause in Contracts

Section 365(n). All rights and licenses granted under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy Laws”), licenses of rights to “intellectual property” as defined under the Bankruptcy Laws. If a case is commenced during the Term by or against a Party under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform all the obligations in this Agreement intended to be performed by such Party. If a case is commenced during the Term by or against a Party under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the other Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide to the non-bankrupt Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights under the terms of this Agreement. All rights, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case by or against the bankrupt Party under the Bankruptcy Laws. In particular, it is the intention and understanding of the Parties to this Agreement that the rights granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses and the Parties acknowledge that damages are not an adequate remedy in the event of any termination described in this Section 13.5 (Termination for Bankruptcy).

Section 365(n). (a) All rights and licenses now or hereafter granted by BioCryst to CSL under or pursuant to this Agreement Agreement, including, for the avoidance of doubt, the licenses granted to CSL pursuant to Section 2.1 are, and will otherwise be deemed to be, for all purposes of Section 365(n) of Title 11 of the United States Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy Laws”)Code, licenses of rights to “intellectual property” as defined in the Bankruptcy Code. Upon the occurrence of any Insolvency Event with respect to BioCryst, BioCryst agrees that CSL, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy LawsCode. Further, each Party agrees and acknowledges that all payments by CSL to BioCryst hereunder, other than royalty payments pursuant to Section 9.3, and the regulatory milestones pursuant to Section 9.2, do not constitute royalties within the meaning of Section 365(n) of the Bankruptcy Code or relate to licenses of intellectual property hereunder. BioCryst shall, during the term of this Agreement, create and maintain current copies or, if not amenable to copying, detailed descriptions or other appropriate embodiments, to the extent feasible, of all such intellectual property. BioCryst and CSL acknowledge and agree that “embodiments” of intellectual property within the meaning of Section 365(n) include, without limitation, laboratory notebooks, product samples and inventory, research studies and data, regulatory approvals and manufacturing know-how. If (i) a case under the Bankruptcy Code is commenced during the Term by or against a Party under Bankruptcy Laws thenBioCryst, unless and until (ii) this Agreement is rejected as provided pursuant in the Bankruptcy Code, and (iii) CSL elects to such retain its rights hereunder as provided in Section 365(n) of the Bankruptcy LawsCode, such Party BioCryst (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform shall: (i) provide to CSL all the obligations in this Agreement intended to be performed BioCryst Intellectual Property (including all embodiments thereof) held by BioCryst and such Party. If a case is commenced during the Term by or against a Party under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the other Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee)assigns, will provide or otherwise available to them, immediately upon CSL’s written request, in each case, if and to the non-bankrupt Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights extent licensed under the terms of this Agreement. Whenever BioCryst or any of its successors or assigns provides to CSL any of the BioCryst Intellectual Property licensed hereunder (or any embodiment thereof) pursuant to this Section 16.2, CSL shall have the right to perform BioCryst’s obligations hereunder with respect to such BioCryst Intellectual Property , but neither such provision nor such performance by CSL shall release BioCryst from liability resulting from rejection of this Agreement or the failure to perform such obligations; and (ii) not interfere with CSL’s rights under this Agreement, or any agreement supplemental hereto, to such BioCryst Intellectual Property (including such embodiments), including any right to obtain such intellectual property (or such embodiments) from another entity, to the extent provided in Section 365(n) of the Bankruptcy Code. (b) All rights, powers and remedies of the non-bankrupt Party as CSL provided herein are in addition to and not in substitution for any and all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy LawsCode) in the event of the commencement of a case by or against the bankrupt Party under the Bankruptcy LawsCode with respect to BioCryst. In particularThe Parties agree that they intend the following rights to extend to the maximum extent permitted by law, it is and to be enforceable under Bankruptcy Code Section 365(n): (i) the intention and understanding right of access to any intellectual property (including all embodiments thereof) of BioCryst, or any Third Party with whom BioCryst contracts to perform an obligation of BioCryst under this Agreement, and, in the case of the Parties to this Agreement that Third Party, which is necessary for the rights granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses and the Parties acknowledge that damages are not an adequate remedy manufacture, use, sale, import or export of Licensed Products in the event Field in accordance with the provisions of Section 2.1; and (ii) the right to contract directly with any termination described in this Third Party to complete the contracted work to the extent permitted by Section 13.5 (Termination for Bankruptcy)2.1.

Section 365(n). All rights and licenses granted under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy Laws”), licenses of rights to “intellectual property” as defined under the Bankruptcy Laws. If a case is commenced during the Term by or against a Party Arrowhead under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party Arrowhead (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform all of the obligations in this Agreement intended to be performed by such PartyArrowhead. If a case is commenced during the Term by or against a Party Arrowhead under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the other Party Takeda elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party Arrowhead (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide to the non-bankrupt Party Takeda copies of all Patent Rights, Know-How Rights and intellectual property information necessary for the non-bankrupt Party Takeda to prosecute, maintain and enjoy its rights under the terms of this Agreement. All rights, powers powers, and remedies of the non-bankrupt Party Takeda as provided herein are in addition to and not in substitution for any and all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case by or against the bankrupt Party Arrowhead under the Bankruptcy Laws. In particular, it is the intention and understanding of the Parties to this Agreement that the rights granted to each Party Takeda under this Section 13.5 15.3 (Termination for Bankruptcy) are essential to such PartyTakeda’s respective businesses and the Parties acknowledge that damages are not an adequate remedy in the event of any termination described in this Section 13.5 15.3 (Termination for Bankruptcy).

Section 365(n). All rights and licenses granted under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Bankruptcy Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy LawsCode”), licenses of to rights to “intellectual property” as such term is defined under the Bankruptcy LawsCode. If Each Party acknowledges and agrees that, in the event a case Party files a voluntary petition for relief under the Bankruptcy Code (a “Voluntary Case”) or an involuntary petition for relief under the Bankruptcy Code is commenced during the Term by or filed against a Party and an order for relief is entered (an “Involuntary Case” and together with a Voluntary Case, a “Bankruptcy Case”), the other Party shall be entitled to retain all of its rights under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant and to such Bankruptcy Laws, such Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform fully exercise all the obligations in this Agreement intended rights available to be performed by such Party. If a case is commenced during the Term by or against a Party it under the Bankruptcy LawsCode, this Agreement is rejected as provided for including but not limited to, the rights granted under Section 365(n) of the Bankruptcy LawsCode. Each Party further agrees, and the other Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide to the non-bankrupt Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights under the terms of this Agreement. All rights, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) that in the event of the commencement of a case by Bankruptcy Case, and a Party hereto, as a debtor-in-possession (“Debtor”), or against a trustee appointed in such Bankruptcy Case (a “Trustee”), rejects this Agreement, the bankrupt other Party hereto may elect to retain its rights under this Agreement as provided in Section 365(n) of the Bankruptcy Laws. In particularCode, it is and Debtor or such Trustee will not interfere with the intention and understanding rights of the Parties other Party provided in this Agreement or any other agreement supplementary to this Agreement Agreement, or any intellectual property provided under such agreements. Each Party further acknowledges and agrees, that the rights granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses and the Parties acknowledge that damages are not an adequate remedy in the event of the commencement of a Bankruptcy Case, the enforcement by the other Party of any termination described rights under Section 365(n) of the Bankruptcy Code in connection with this Agreement will not violate the automatic stay of Section 13.5 (Termination for Bankruptcy)362 of the Bankruptcy Code and waives any right to object on such basis.

Section 365(n). (a) All rights and licenses granted under or pursuant to any section of this Agreement Agreement, including all rights to sublicense, are, and will shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States U.S. Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy LawsCode”), licenses of rights to “intellectual property” as defined in Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respective rights and elections under the Bankruptcy LawsCode. If Each Party agrees that the other Party, to the extent that it is a case is commenced during licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Term Bankruptcy Code, and that upon commencement of a bankruptcy proceeding by or against a Party under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform all the obligations in this Agreement intended to be performed by such Party. If a case is commenced during the Term by or against a one Party under the Bankruptcy LawsCode, the other Party shall be entitled to a complete duplicate of, or complete access to (as such other Party deems appropriate), any such Intellectual Property and all embodiments of such Intellectual Property; provided, that such other Party continues to fulfill its obligations as specified herein in full. Such Intellectual Property and all embodiments thereof shall be promptly delivered to the other Party (i) upon any such commencement of a bankruptcy [*] Certain portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. proceeding upon written request therefor by the other Party, unless the Party subject to such bankruptcy proceeding elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of the Party subject to such bankruptcy proceeding, upon written request therefor by the other Party. The foregoing is without prejudice to any rights that either Party may have arising under the Bankruptcy Code, other applicable Law, or this Agreement. (b) Nothing in this Section 2.4 shall be deemed any admission that this Agreement is an executory contract or that this Agreement or any obligation hereunder is otherwise subject to rejection or disavowal in the bankruptcy, liquidation, reorganization, receivership, assignment for the benefit of creditors, administration, insolvency, or similar proceeding or circumstance (an “Insolvency Proceeding”) of any Party (the “Withdrawing Party”), nor any admission that upon any such proceeding or circumstance involving a Party, or upon any such rejection or disavowal by a Party, the other Party (or any sublicensee thereof) would lose or not be able to enforce or benefit from any right hereunder (or under any applicable sublicense). (c) Each of the Parties agrees and acknowledges, as a licensor of Intellectual Property under this Agreement, in entering this Agreement and granting the rights it respectively grants under this Agreement, and in its efforts to protect its own valuable Intellectual Property, it has relied on the particular skills and business qualities of the other Party as recipient of such rights. Such skills and business qualities include the expected future innovation of the other Party, and the particular market segments addressed by the other Party in its business. Each of the Parties further agrees and acknowledges that upon the occurrence of any Insolvency Proceeding, this Agreement is rejected as provided for under of the type described in Section 365(c)(1) and (e)(2) of the Bankruptcy LawsCode, and under any other applicable Law, for such reasons. (d) In the event of an Insolvency Proceeding, the Party that is not the Withdrawing Party (the “Non-Withdrawing Party”) shall have the right, but not the obligation, to purchase the Withdrawing Party’s interests hereunder (the “Withdrawing Party’s Interest”), including any right to receive any future payments hereunder (whether for Net Profits, Incentive Payments, or otherwise), any rights to exclusive ownership of any Intellectual Property that is owned jointly hereunder, and any rights in the Withdrawing Party’s Customer Agreements. The purchase price for the Withdrawing Party’s Interest (the “Withdrawing Purchase Price”) shall be fair market value, where such fair market value takes into consideration future amounts payable under this Agreement, as well as all the additional development and manufacturing costs for Products that a Third Party with standard manufacturing capacity would bear alone (as opposed to splitting with the Withdrawing Party), and shall be determined by the applicable bankruptcy court overseeing the Insolvency Proceeding. In the event the Non-Withdrawing Party desires to exercise to purchase the Withdrawing Party’s Interest for the Withdrawing Purchase Price, the Non-Withdrawing Party shall deliver a written notice to the Withdrawing Party indicating the desire to exercise such right and setting a closing date for consummation of the purchase of the Withdrawing Party’s Interest, which closing date shall be no earlier than seventy-five (75) days after the date of such notice (the “Withdrawal Date”). Payment of the Withdrawing Purchase Price shall be made in cash on the Withdrawal Date unless the parties agree otherwise, and, upon the Withdrawal Date, the Withdrawing Party shall, and hereby does, assign all Intellectual Property that is owned jointly hereunder to the Non-Withdrawing Party, and the other Withdrawing Party elects further agrees to retain its rights hereunder as provided for under take all action and execute all documents in order to effectuate the Bankruptcy Laws, then transfer of the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide Withdrawing Party’s Interest to the nonNon-bankrupt Withdrawing Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights under the terms of this Agreement. All rights, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case by or against the bankrupt Party under the Bankruptcy Laws. In particular, it is the intention and understanding of the Parties to this Agreement that the rights granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses and the Parties acknowledge that damages are not an adequate remedy in the event of any termination described in this Section 13.5 (Termination for Bankruptcy)thereafter.

Section 365(n). All Each Party and ▇▇▇▇ Zeiss, as licensor, acknowledges and agrees that the licenses, immunities and rights and licenses granted under or pursuant to this Agreement areto the other Parties and their Affiliates by such licensor are licenses, immunities and will otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy Laws”), licenses of rights as to “intellectual property” as defined under within the definition of Section 101(35A) of the United States Bankruptcy Laws. If a case is commenced during the Term by or against a Party under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party Code (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform all the obligations in this Agreement intended to be performed by such Party. If a case is commenced during the Term by or against a Party under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the other Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide to the non-bankrupt Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights under the terms purposes of this AgreementSection, the “Code”). All rightsThe Parties and ▇▇▇▇ Zeiss hereto further agree that, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case bankruptcy proceeding by or against the bankrupt licensor Party or ▇▇▇▇ Zeiss, as applicable, under the Bankruptcy LawsCode, the licensee Party and its Affiliates shall be entitled, at such licensee Party’s option, to retain all their licenses, immunities and rights under this Agreement, including the licenses and immunities granted under Sections 3.1 through 3.4, as applicable, pursuant to Code Section 365(n). In particularTo the extent that United States Law is held by a court of competent jurisdiction not to apply with respect to a non-US bankruptcy proceeding of a Party or ▇▇▇▇ Zeiss, it is each Party and ▇▇▇▇ Zeiss shall take all actions that are reasonably necessary to effectuate the intention and understanding intent of the Parties foregoing provisions in the country in which it and each Affiliate holding any rights with respect to this Agreement that its Licensed Patents or Restricted Patents is incorporated or conducts its business, subject to any mandatory provisions of applicable Law. Without limiting the rights generality of the foregoing, Nikon agrees to take all reasonable measures necessary to ensure the survival of the rights, immunities, and licenses granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses ASML Grantee Entities and the Parties acknowledge that damages are not an adequate remedy Zeiss Grantee Entities in the event that Nikon or any other Nikon Grantor Entities is subject to a bankruptcy proceeding under the laws of Japan; ASML agrees to take all reasonable measures necessary to ensure the survival of the rights, immunities, and licenses granted to Nikon Grantee Entities in the event that ASML or any termination described other ASML Grantor Entities is subject to a bankruptcy proceeding under the laws of the Netherlands; and Zeiss and ▇▇▇▇ Zeiss agree to take all reasonable measures necessary to ensure the survival of the rights, immunities, and licenses granted to Nikon Grantee Entities in this Section 13.5 (Termination for Bankruptcy)the event that Zeiss Grantor Entities is subject to a bankruptcy proceeding under the laws of Germany in each case in accordance with applicable Law.