EXHIBIT 10.2
TO
ICOS CORPORATION'S
FORM 10-Q
FOR THE QUARTER ENDED
SEPTEMBER 30, 1998
"[ * ]" = omitted, confidential material, which material has been
separately filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
EXHIBIT 10.2
LILLY
LICENSE AGREEMENT
THIS LILLY LICENSE AGREEMENT ("Agreement") is made this 30th day of
September, 1998, by and between LILLY ICOS LLC, a Delaware Limited Liability
Company ("Company"), and XXX XXXXX and COMPANY, an Indiana corporation
("LILLY").
RECITALS
WHEREAS, ICOS Corporation, a Delaware corporation ("ICOS"), has granted to
the Company a license to certain proprietary patent rights, technical
information, technology and know-how relating to and useful in the manufacture,
production and worldwide commercial sale of PDE5 Product (as defined in Article
1 below) for [ * ] use;
WHEREAS, ICOS and LILLY have entered into a Limited Liability Company
Agreement, dated September 30, 1998 ("LLC Agreement"), with respect to the
organization and capitalization of the Company to engage in the research,
development, manufacture, production and sale of PDE5 Products for [ * ] use
in the Field (as defined in Article 1 below);
WHEREAS, ICOS, LILLY and the Company have entered into a Research and
Development Service Agreement of even date herewith (the "Development
Agreement") pursuant to which ICOS and LILLY will conduct development work on
behalf of the Company with respect to the Background Technology (as defined in
Article 1 below);
WHEREAS, LILLY desires to obtain from the Company the PDE5 Technology (as
defined in the Article I below) and to acquire [ * ] license to the PDE5
Technology in order to develop, manufacture, market and sell PDE5 Products in
the Field in LILLY Territory; and in view of the LLC Agreement and the parties
further development activities pursuant to the Development Agreement, the
Company is willing to grant such a license to LILLY;
NOW, THEREFORE, it is hereby agreed as follows:
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ARTICLE I
DEFINITIONS
1.01 [ * ] OR API
The term [ * ] and/or API shall mean [ * ].
1.02 PDE5
The term PDE5 shall mean [ * ] phosphodiesterase.
1.03 PDE5 AGENT
The term PDE5 Agent shall mean [ * ].
1.04 PDE5 PRODUCT
The term PDE5 Product shall mean [ * ].
1.05 FIELD
The term Field shall mean [ * ].
1.06 BACKGROUND TECHNOLOGY
The term Background Technology shall mean those patents and patent
applications set forth in Appendix A and owned or controlled by ICOS as of the
date of this Agreement including any renewal, division, continuation or
continuation in part of any such applications and any patents issuing thereon,
and any reissues, extensions substitutions, confirmations, registrations,
revalidations, revisions, supplementary protection certificates and additions of
or to any such patents (hereafter Patents) and any currently identified PDE5
Agents and any Technical Information.
1.07 TECHNICAL INFORMATION
The term Technical Information shall mean [ * ].
1.08 PDE5 TECHNOLOGY
The term PDE5 Technology shall mean the Company Technology as defined in
the Development Agreement.
1.09 PROJECT
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The term Project shall mean the same as defined in the Development
Agreement.
1.10 PARTY
The term Party shall mean LILLY or the Company or, when used in the plural,
LILLY and the Company.
1.11 THIRD PARTY
The term Third Party shall mean any entity which is not a Party or
Affiliate of any Party to this Agreement.
1.12 AFFILIATE
The term Affiliate shall mean, with respect to any Person, another Person
that, directly or indirectly, controls, is controlled by or is under common
control with such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. The direct or indirect ownership of [ /*/ ] or, if
smaller, the maximum allowed by applicable law, of the voting securities of a
business entity or of an interest in the assets, profits or earnings of Entity
shall be deemed to constitute "control" of the Entity. For purposes of this
Agreement, LILLY and the Company shall not be deemed to be Affiliates of each
other.
1.13 NET SALES
The term Net Sales shall [ * ].
[ * ].
1.14 LILLY TERRITORY
The term LILLY Territory shall mean the same as defined in the LLC
Agreement.
1.15 TERRITORY
The term Territory shall mean the same as defined in the LLC Agreement.
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1.16 UNDERLYING AGREEMENTS
The term Underlying Agreements shall mean the Collaboration Agreement by
and among Glaxo Group Limited, Glaxo Inc. and ICOS Corporation dated October 3,
1991, as amended January 24, 1997, [ * ].
ARTICLE II
GRANT OF LICENSE
2.01 GRANT OF LICENSE
(a) Subject to the terms of this Agreement, the Company hereby grants to
LILLY [ * ] license to use the PDE5 Technology in the Field to offer to sell,
sell and import PDE5 Products in the LILLY Territory.
(b) XXXXX also has the right to purchase, and Company agrees to supply to
LILLY [ * ] at Company's cost for use in PDE5 Products and to then make, or
have made, finished PDE5 Products from such [ * ]. If the Company is utilizing
a third party (not an Affiliate) to supply API, and if the Company is unable or
fails to supply API to LILLY in the quantity ordered or quality required by
LILLY to meet forecasted demand and regulatory specifications in the LILLY
Territory, [ * ]. If there is an insufficient supply of API to meet the needs
of both the Company and Lilly, until such time as Lilly is able to make API or
obtain a supply of API from a Third Party, the available supply of API will be
apportioned by the Company between the Company and Lilly pro rata based on the
level of sales of each for the supply period in question at the time of the
insufficiency of supply.
2.02 RIGHT TO SUBLICENSE
The Company also hereby grants to LILLY the right to grant sublicenses
within and limited to the scope of the right and license granted by the Company
in Section 2.01. Any sublicensees of LILLY shall agree in writing to be bound by
the provisions of Section 3.02 to the same extent LILLY is bound. LILLY shall
notify the Company of the identity of each sublicensee for which a sublicense is
granted and provide the Company a true copy of such sublicense and any and all
modifications, amendments, and revisions. In the event that the license granted
herein to LILLY is terminated at any time in accordance with Article VII and the
Company shall not be in default under Section 7.03, the Company shall have the
option to terminate, or to have LILLY assign to the Company, retroactive to the
date of termination, any sublicenses granted hereunder by LILLY. LILLY shall
include in all of its sublicenses granted hereunder provisions for such
termination and assignment.
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2.03 LIMITATIONS
No right or license is granted to XXXXX xxxxxxxxx except as expressly
specified in Sections 2.01 and 2.02.
2.04 UNDERLYING AGREEMENTS
The foregoing grant and license under this Article II is subject to the
terms and conditions of the Underlying Agreements and any other of the Company's
agreements under which the Company may in-license PDE5 Technology after the date
of this Agreement. The Company shall comply and perform in accordance with the
Underlying Agreements and such in-license agreements, which the Company shall
promptly disclose to Lilly.
2.05 GRANTBACK
If during the course of conducting post marketing clinical trials (phase IV
trials) in the LILLY Territory an invention is discovered that results in a
patent, LILLY shall grant the Company a non-exclusive license to such patent
with the right of the Company to grant sublicenses.
ARTICLE III
DISCLOSURE
3.01 DISCLOSURE
(a) The Company shall, in accordance with the LLC Agreement and the
Development Agreement, reasonably disclose and deliver to LILLY all PDE5
Technology in sufficient detail to permit LILLY to employ such information for
the purposes provided herein, including for the purpose of obtaining marketing
authorizations within the LILLY Territory.
(b) XXXXX shall have the right to attend and participate in the
Company's technical meetings, conduct plant visits at reasonable intervals and
receive information regarding the PDE5 Technology. LILLY shall be provided with
reasonable notice of the time and place of such meetings.
(c) During the term of this Agreement, each Party shall inform the
other Party, promptly and in a manner to be agreed upon, of any abnormal
clinical findings or adverse events related to PDE5 Products in a clinical
setting or in post-market surveillance.
3.02 CONFIDENTIALITY
(a) Except to the extent expressly authorized by this Agreement, the
LLC Agreement, the Development Agreement or by other prior written consent of
the Company, LILLY shall, in accordance with Section 2.7 of the LLC Agreement,
keep completely
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confidential and shall not publish or otherwise disclose to others and shall not
use any confidential PDE5 Technology.
LILLY may disclose any PDE5 Technology to the extent such disclosure is
necessary for LILLY to comply with applicable laws or regulations or to make,
use or sell under the license granted herein by the Company or to sublicense
others to do so, or if required in response to litigation discovery requests, in
which case LILLY will attempt to obtain appropriate protective orders for such
disclosure; provided, that LILLY shall give the Company reasonable advance
notice of such proposed disclosure, shall use its best efforts to secure
confidential treatment of PDE5 Technology to be disclosed and shall advise the
Company in writing of the manner in which that was done.
(b) The obligation of confidentiality imposed by this Section 3.02
shall survive termination of this Agreement for any reason whatsoever for a
period of five (5) years.
ARTICLE IV
ROYALTY
4.01 ROYALTY
LILLY shall pay to the Company a royalty, at the applicable rate
hereinafter specified, on Net Sales of PDE5 Products that are sold or otherwise
disposed of by LILLY or any of its Affiliates or sublicensees in the LILLY
Territory, whether or not such Affiliates are sublicensed pursuant to Section
2.02. The royalty rate to be applied to Net Sales shall be: [ * ].
4.02 SALES TO AFFILIATES AND SUBLICENSEES
No royalties shall be payable with respect to any sale of PDE5 Products
among LILLY and any of its Affiliates or sublicensees, but royalties shall be
paid hereunder with respect to resale or other disposition, excluding samples,
of such PDE5 Products to a third party.
4.03 RECORDS
LILLY shall keep full, complete and accurate records with respect to the
sale or other disposition of PDE5 Products for the [ * ] sufficient to
enable the Company to verify the accuracy of the statements required by Section
4.04(a). The Company shall have the right, through Xxxxx'x independent public
accountants, to make an examination and audit, during normal business hours, not
more frequently than annually, of all such records and such other records and
accounts as may under recognized accounting practices contain information
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bearing upon the amount of royalty payable to it under this Agreement.
Adjustment shall be made within thirty (30) days to compensate for any errors or
omissions disclosed by such examination or audit. Neither such right to examine
and audit nor the right to receive such adjustment shall be affected by any
statement to the contrary, appearing on checks or otherwise, unless such
statement appears in a letter, signed by the party having such right and
delivered to the other party, expressly waiving such rights.
4.04 REPORTING
(a) Within [ * ] after the end of each [ * ], commencing with the
first [ * ] in which Net Sales occur, LILLY shall furnish to the Company a
statement, in form acceptable to the Company, setting forth on a country by
country basis the number of units of PDE5 Products sold or otherwise disposed of
during the period, the Net Sales and the amount of royalty payable thereon and
showing the applicable conversion from local currency to U.S. Dollars.
(b) Within such [ * ] period LILLY shall, irrespective of its own
business and accounting methods, pay to the Company the royalties payable for
such [ * ] period.
(c) LILLY shall furnish whatever additional information the Company
may reasonably request from time to time to enable the Company to ascertain
which PDE5 Products sold or otherwise disposed of by LILLY or any of its
Affiliates or sublicensees are subject to the payment of royalty to the Company
and the amount of royalty payable thereon.
4.05 LATE PAYMENTS
Royalty payments required under this Agreement shall, when overdue, be
subject to a late payment charge calculated at [ * ]; provided, however, that
if the amount of such late payment charge exceeds the maximum permitted by law
for such charge, such charge shall be reduced to such maximum amount.
4.06 PAYMENTS
Payment to the Company shall be made in United States dollars.
4.07 TAXES
LILLY shall bear all taxes, however designated, imposed as a result of the
existence or operation of this Agreement, including, but not limited to, any tax
on or measured by, any payment or receipt of payment hereunder, any registration
tax, and any tax imposed with respect to the granting or transfer of licenses or
other rights or considerations hereunder. The foregoing shall not include any
such tax imposed upon the Company by any governmental
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entity within or without the United States, including any such tax which LILLY
is required to withhold or deduct from payments to the Company.
4.08 CURRENCY CONVERSION
Royalties shall be calculated and paid in United States dollars. For the
purpose of computing the Net Sales made in a currency other than United States
dollars, LILLY shall convert such currency from local currency to United States
dollars monthly using LILLY standard conversion system for financial reporting
(internal and external), consistently applied and in accordance with U.S.
generally accepted accounting principles.
ARTICLE V
PATENT APPLICATIONS AND DEFENSE OF INFRINGEMENTS
5.01 Patent Applications
Subject to the rights of any licensor of PDE5 Technology to the Company,
the Company will file, prosecute and maintain in force and defend: [ * ].
The Company and LILLY will cooperate to the extent necessary and provide
reasonable assistance in support of the defense of any suit or action involving
infringement of any [ * ] or interference with any other intellectual property
right included in PDE5 Technology licensed to LILLY in the Field pursuant to
this Agreement.
If the Company declines to file, prosecute, maintain, and defend any patent
application or patent covering the PDE5 Technology or a trademark or copyright
in the LILLY Territory, LILLY shall have the right, but not the obligation, to
file, prosecute, maintain, or defend at its cost and expense, the patent
application, patent, trademark or copyright.
5.02 [ * ] FOR THIRD PARTY INFRINGEMENT DAMAGES AND ROYALTIES
In the event of a judgment or settlement of a Third Party infringement
claim, [ * ].
ARTICLE VI
PATENT, COPYRIGHT, AND TRADE SECRET ENFORCEMENT
6.01 Rights of LILLY and the Company
Except as provided in the PDE5 License Agreement and Section 6.02, LILLY
shall have the right, but not the obligation, to bring, defend and maintain any
appropriate suit or action involving infringement of any patent, or copyright,
misappropriation of any trade
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secret or interference with any other intellectual property right included in
the PDE5 Technology in the LILLY Territory that LILLY has licensed hereunder. If
LILLY declines to bring, defend or maintain any appropriate action the Company
shall have the right, but not the obligation to bring, defend and maintain any
appropriate suit or action involving infringement of any patent, or copyright,
misappropriation of any trade secret or interference with any other intellectual
property right included in the PDE5 Technology in the LILLY Territory that LILLY
has licensed hereunder. Any amount recovered in any such suit or action, whether
by judgment or settlement, shall be [ * ].
6.02 NOTICE OF INFRINGEMENT
LILLY shall notify the Company of any infringement in the Field in the
LILLY Territory of any copyright, trade secret or patent within the PDE5
Technology which would in the absence of this Agreement preclude the making, use
or sale of products or the use of processes both within and outside the Field
and shall provide the Company with any available evidence of such infringement.
ARTICLE VII
TERM AND TERMINATION
7.01 TERM
Unless sooner terminated as provided below, this Agreement shall remain in
full force and effect [ * ]. Upon the expiration of this Agreement as provided
in the preceding sentence, the license granted to LILLY hereunder shall [ * ]
in the Field in the LILLY Territory except for any obligation to make a payment
under a license to the Company from a Third Party.
7.02 EFFECTIVE DATE
This Agreement (including the license and rights granted under Sections
2.01 and 2.02) shall come into effect as of the date hereof and shall remain in
full force and effect until the earlier of (a) the liquidation or dissolution of
the Company other than in connection with a continuation of the business of the
Company in some other legal form, (b) termination pursuant to Section 7.03 or
(c) expiration pursuant to Section 7.01.
7.03 RIGHT OF TERMINATION
Except under circumstances that are described in Section 13.4 of the LLC
Agreement (which shall be handled in accordance with the provisions thereunder),
LILLY shall have the right, but not the obligation, to terminate this Agreement
if either LILLY or ICOS ceases to be a Member of the Company. Similarly, except
under circumstances that are described in
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Section 13.4 of the LLC Agreement (which shall be handled in accordance with the
provisions thereunder), the Company shall have the right, but not the
obligation, to terminate this Agreement if either ICOS or LILLY ceases to be a
Member of the Company. Termination under this Section 7.03 shall be effective
upon thirty (30) days written notice from the party that desires to exercise
such termination right to the other parties.
7.04 DEFAULT
In the event that a Party (the "Defaulting Party") shall (a) fail to make
any payment hereunder when and as due, or otherwise default in its obligations
hereunder and fail to remedy such default within sixty (60) days after such
default shall have been called to its attention by notice from another Party,
(b) become bankrupt or insolvent, or file a petition in bankruptcy or make a
general assignment for the benefit of creditors or otherwise acknowledge
insolvency, or be adjudged bankruptcy, (c) go or be placed in a process of
complete liquidation other than in connection with a continuation of the
business of the Company in some other legal form, or (d) suffer the appointment
of a receiver for any substantial portion of its business who shall not be
discharged within one hundred and eighty (180) days after his appointment, then,
and in any such event, the other Party, at its option, may terminate its
obligations to and the rights of the Defaulting Party under this Agreement upon
ten (10) days' written notice to the Defaulting Party, which termination shall
be effective as of the occurrence of the event giving rise to the option to
terminate.
7.05 SURVIVAL
Notwithstanding the termination or expiration of a Party's obligations to
or the rights of the Defaulting Party under this Agreement in accordance with
the provisions of Sections 7.01, 7.02 or 7.03, the provisions of Sections 2.05,
3.02, 4.03, 4.05, 7.01, 7.04 and 10.10 and any accrued obligations shall survive
such termination or expiration and continue in full force and effect for an
indefinite term. Upon termination of this Agreement for any reason under Section
7.02 or 7.03, and without limitation of other remedies, LILLY shall immediately
return to the Company (to the extent such return is technically feasible) all
PDE5 Technology in the possession of LILLY or its Affiliates or sublicensees,
or, at the sole election of the Company, shall destroy such PDE5 Technology (to
the extent technically feasible).
ARTICLE VIII
CONSENTS AND APPROVALS
8.01 Diligence
The Parties hereto shall use reasonable and diligent efforts to
commercialize the PDE5 Products in those countries in the LILLY Territory that
offer substantial opportunity for sales at a profitable level taking into
consideration the amount of royalties required by this Agreement.
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ARTICLE IX
NOTICE
9.01 Notices
All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
mailed to the Party to whom notice is to be given, by telex or facsimile, and
confirmed by first class mail, registered or certified, return receipt
requested, postage prepaid, and properly addressed as follows (in which case
such notice shall be deemed to have been duly given on the third (3rd) day
following the date of such sending):
"LILLY" Xxx Xxxxx and Company
Lilly Corporate Center
Indianapolis, IN 46285
Attn: Xxxxxxx X. Xxxx
Vice President and General Counsel
"Company" LILLY ICOS LLC
c/o ICOS Corporation
00000 - 00xx Xxxxxx X.X.
Bothell, WA 98021
U.S.A.
Attn: Xxxxxx X. Xxxxx, Esq.
Legal Department
With a copy to: Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
U.S.A.
Attn: Xxxxx X. Xxxxxxxxx, Esq.
and to: Xxx Xxxxx and Company
Lilly Corporate Center
Indianapolis, IN 46285
Attn: Xxxxxxx X. Xxxx
Vice President and General Counsel
Any Party by giving notice to the others in the manner provided above may change
such Party's address for purposes of this Section 9.01.
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ARTICLE X
MISCELLANEOUS
10.01 Entire Agreement
This Agreement, together with the other written agreements between the
Parties hereto which are referenced in the LLC Agreement, sets forth the entire
agreement of the Parties with respect to the subject matter hereof and may not
be modified except by a writing signed by authorized representatives of the
Parties hereto. To the extent that there may be conflicts or inconsistencies
between the provisions of this Agreement and those contained in the LLC
Agreement, the provisions of the LLC Agreement shall prevail and govern
interpretation.
10.02 HEADINGS
Article and section headings and numbers in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
10.03 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different Parties hereto in separate counterparts each of which when so executed
and delivered shall be deemed to be an original and all of which counterparts of
this Agreement taken together shall constitute but one and the same instrument.
10.04 FORCE MAJEURE
It is agreed that each of the Parties hereto is excused from performing
such acts as are required hereunder as may be prevented by or whose purpose is
frustrated by Force Majeure. The Party so affected shall give notice to the
other Party in writing promptly and thereupon shall be excused from such of its
obligations hereunder as it is unable to perform on account of the Force Majeure
throughout the duration thereof plus a period of thirty (30) days.
10.05 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
internal laws, and not the law of conflicts, of the State of Delaware applicable
to agreements made and to be performed in such state.
10.06 ASSIGNMENT ON WRITTEN CONSENT
This Agreement may not be assigned in whole or in part by LILLY, except
with the prior written consent of the Company or except as part of the sale of
XXXXX'x entire business relating to the Field. This Agreement shall be binding
upon and inure to the benefit of the
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Company and LILLY and their respective successors and assigns to the extent it
is assignable.
10.07 SEVERABILITY
In the event any one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. In such event, such invalid
provision or provisions shall be validly reformed to as nearly approximate the
intent of the Parties as possible and if unreformable, shall be severed and
deleted from this Agreement.
10.08 NO WAIVER
No failure or delay on the part of either Party in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder or the remedies provided by law.
10.10 INDEMNITY
LILLY hereby (a) releases the Company from any obligation to defend,
indemnify or hold LILLY and its agents and employees harmless from and (b)
agrees to defend, indemnify and hold the Company, its members, agents and
employees harmless from any and all cost, expenses (including attorneys' fees),
liabilities, damages and claims for any injury or death to persons or damage to
or destruction of property, or other loss, arising out of XXXXX'x activities
hereunder or otherwise arising out of or related to the performance of this
Agreement.
10.11 OTHER AGREEMENTS
Any other provision of this Agreement notwithstanding, nothing in this
Agreement shall obligate the Company to disclose to LILLY any information or to
make available to LILLY any materials in violation of an obligation of secrecy
or a limitation of use imposed by a third party from whom such information or
materials shall have been received.
10.12 REMEDIES
No right, power or remedy herein conferred upon or reserved to any Party is
intended to be exclusive of any other right, power or remedy or remedies, and
each and every right, power and remedy of any Party pursuant to this Agreement
or now or hereafter existing at law or in equity or by statute or otherwise
shall to the extent permitted by law be cumulative and concurrent, and shall be
in addition to every other right, power or remedy pursuant to this Agreement, or
now or hereafter existing at law or in equity or by statute or otherwise and the
exercise or beginning of the exercise by any Party of any one or more of such
rights, powers
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or remedies shall not preclude the simultaneous or later exercise by any Party
of any or all such other rights, powers or remedies.
10.13 ATTORNEYS' FEES AND COSTS
In the event of any action at law or in equity between the Parties hereto
to enforce any of the provisions hereof, the unsuccessful party or parties to
such litigation shall pay to the successful party or parties all costs and
expenses, including actual attorneys' fees, incurred therein by such successful
party or parties; and if such successful party or parties shall recover judgment
in any such action or proceeding, such costs, expenses and attorneys' fees may
be included in and as part of such judgment. The successful party shall be the
party who is entitled to recover its costs of suit, whether or not the suit
proceeds to final judgment. A party not entitled to recover its costs shall not
recover attorneys' fees.
10.14 NUMBER AND GENDER
Words in the singular shall include the plural, and words in a particular
gender shall include either or both additional genders, when the context in
which such words are used indicates that such is the intent.
10.15 AGREEMENT TO PERFORM NECESSARY ACTS
Each Party agrees to perform any further acts and execute and deliver any
and all further documents and/or instruments which may be reasonably necessary
to carry out the provisions of this Agreement.
10.16 REPRESENTATIONS
Each of the Parties hereto acknowledges and agrees (i) that no
representation or promise not expressly contained in this Agreement has been
made by any other Party hereto or by any of its agents, employees,
representatives or attorneys; (ii) that this Agreement is not being entered into
on the basis of, or in reliance on, any promise or representation, expressed or
implied, covering the subject matter hereof, other than those which are set
forth expressly in this Agreement; and (iii) that each has had the opportunity
to be represented by counsel of its own choice in this matter, including the
negotiations which preceded the execution of this Agreement.
10.17 RIGHTS IN THE EVENT OF BANKRUPTCY
All rights in the PDE5 Technology granted under this Agreement to LILLY by
the Company are, and shall otherwise be deemed to be, for purposes of Section
365(n) of the U.S. Bankruptcy Code, a license of rights to "intellectual
property" as defined in Section 101 of the U.S. Bankruptcy Code. LILLY, as
licensee of such rights under this Agreement, shall retain and may fully
exercise all of its rights and elections under the U.S. Bankruptcy Code. In the
event of the commencement of a bankruptcy proceeding by or against the Company
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under the U.S. Bankruptcy Code, LILLY shall be entitled to complete access to
(or a complete duplicate of, as appropriate) such PDE5 Technology.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives in the manner legally binding on them
as of the date first above written.
LILLY ICOS LLC
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
On behalf of ICOS Corporation, Member
By /s/ Xxxxxx Xxxxxx
--------------------------------------------
On behalf of Xxx Xxxxx and Company, Member
XXX XXXXX AND COMPANY
By /s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx
President and Chief Executive Officer
