Common use of Breach of WCCI Diligence Obligation Clause in Contracts

Breach of WCCI Diligence Obligation. (a) Paratek may provide WCCI with written notice of any material breach by WCCI of its covenants set forth in Section 3.9.2 hereof that is not caused by Paratek’s failure to meet a Paratek Diligence Obligation pursuant to Section 3.9.1 above (a “WCCI Diligence Failure”), at any time Paratek reasonably believes a WCCI Diligence Failure has taken place. Such written notice (a “Diligence Failure Notice”) shall set forth in reasonable detail the nature of the alleged failure and shall request written justification, in the form of detailed reasons, that would support the proposition that WCCI is meeting such diligence obligations. in such event, WCCI shall provide such written justification to Paratek within thirty (30) days after such Diligence Failure Notice is given and shall identify any Commercially Reasonable Justification applicable thereto. If Paratek does not receive a Commercially Reasonable Justification from WCCI within such thirty (30) day period or if Paratek and WCCI are not able to resolve any disagreement with respect to a WCCI Diligence Failure within sixty (60) days after WCCI’s receipt of the Diligence Failure Notice, then either Paratek or WCCI, acting alone, may at any time following WCCI’s receipt of such Diligence Failure Notice by delivery to the. other Party of a written notice indicating such Party’s election to have the disagreement resolved by arbitration, cause the matter to be submitted to binding arbitration under Section 13.1.2 hereof; provided that (i) the arbitrators shall be entitled to review and resolve only whether or not a WCCI Diligence Failure occurred during the applicable reporting period of time that is the subject of such disagreement, and (ii) the arbitrators shall be individuals who are knowledgeable in the field of the development, manufacture, and sale of drugs and drug products, and shall have no current or prior business relationships with Paratek, WCCI or any of their respective Affiliates. (b) If the arbitrator determines that a WCCI Diligence Failure occurred, then Paratek’s sole and exclusive remedy shall be, on a Product-by-Product basis as to the Product with respect to which such WCCI Diligence Failure occurred to (i) terminate any or all of the licenses and rights granted under Section 7.2.1 hereof and the restrictions of Sections 3.8 and 7.1.1, or (ii) convert the licenses and rights granted under any or all of Section 7.2.1 from exclusive licenses to non-exclusive licenses and terminate the restrictions of Sections 3.8 and 7.1.1, in either case only as such licenses and rights apply to such Product, which termination and/or conversion, as the case may be, shall be at the discretion of Paratek and he effective sixty (60) days after Paratek gives written notice to WCCI specifying the remedy that Paratek is electing to exercise under this Section 3.9.3. (c) The Parties agree that Paratek’s sole and exclusive remedy, with respect to a WCCI Diligence Failure shall be as set forth in this Section 3.9.3, and Paratek shall not bring, commence, continue or prosecute any claim, legal action or proceeding under, in relation to, arising out of or in connection with a WCCI Diligence Failure except as set forth in this Section 3.9.3.

Breach of WCCI Diligence Obligation. (a) Paratek may provide WCCI with written notice of any material breach by WCCI of its covenants set forth in Section 3.9.2 hereof that is not caused by Paratek’s failure to meet a Paratek Diligence Obligation pursuant to Section 3.9.1 above (a “WCCI Diligence Failure”), at any time Paratek reasonably believes a WCCI Diligence Failure has taken place. Such written notice (a “Diligence Failure Notice”) shall set forth in reasonable detail the nature of the alleged failure and shall request written justification, in the form of detailed reasons, that would support the proposition that WCCI is meeting such diligence obligations. in such event, WCCI shall provide such written justification to Paratek within thirty (30) days after such Diligence Failure Notice is given and shall identify any Commercially Reasonable Justification applicable thereto. If Paratek does not receive a Commercially Reasonable Justification from WCCI within such thirty (30) day period or if Paratek and WCCI are not able to resolve any disagreement with respect to a WCCI Diligence Failure within sixty (60) days after WCCI’s receipt of the Diligence Failure Notice, then either Paratek or WCCI, acting alone, may at any time following WCCI’s receipt of such Diligence Failure Notice by delivery to the. other Party of a written notice indicating such Party’s election to have the disagreement resolved by arbitration, cause the matter to be submitted to binding arbitration under Section 13.1.2 hereof; provided that (i) the arbitrators shall be entitled to review and resolve only whether or not a WCCI Diligence Failure occurred during the applicable reporting period of time that is the subject of such disagreement, and (ii) the arbitrators shall be individuals who are knowledgeable in the field of the development, manufacture, and sale of drugs and drug products, and shall have no current or prior business relationships with Paratek, WCCI or any of their respective Affiliates. (b) If the arbitrator determines that a WCCI Diligence Failure occurred, then Paratek’s sole and exclusive remedy shall be, on a Product-by-Product basis as to the Product with respect to which such WCCI Diligence Failure occurred to (i) terminate any or all of the licenses and rights granted under Section 7.2.1 hereof and the restrictions of Sections 3.8 and 7.1.1, or (ii) convert the licenses and rights granted under any or all of Section 7.2.1 from exclusive licenses to non-exclusive licenses and terminate the restrictions of Sections 3.8 and 7.1.1, in either case only as such licenses and rights apply to such Product, which termination and/or conversion, as the case may be, shall be at the discretion of Paratek and he effective sixty (60) days after Paratek gives written notice to WCCI specifying the remedy that Paratek is electing to exercise under this Section 3.9.3. (c) The Parties agree that ParatekXxxxxxx’s sole and exclusive remedy, with respect to a WCCI Diligence Failure shall be as set forth in this Section 3.9.3, and Paratek shall not bring, commence, continue or prosecute any claim, legal action or proceeding under, in relation to, arising out of or in connection with a WCCI Diligence Failure except as set forth in this Section 3.9.33.9.