Common use of Change of Control Involving Competitive Program Clause in Contracts

Change of Control Involving Competitive Program. If the Change of Control that is described in the ELAN Change of Control Notice involves a Third Party that has a Competitive Program, ELAN shall so notify ARCHEMIX and provide to ARCHEMIX a description of the nature of such Competitive Program; provided that, the existence of such Competitive Program following such a Change of Control shall not be deemed to be a breach of this Agreement. The Parties shall then promptly meet to discuss whether, notwithstanding any provision hereof, such Competitive Program would continue following such Change of Control. In any such meeting the Parties will review any restrictions applicable to such Competitive Program that may prevent its combination with the Collaboration, and other issues that may impact the potential combination of such Competitive Program with the Collaboration. If ELAN determines, in its sole discretion, that such Competitive Program should be combined with the Collaboration, then within [***] days the Parties shall agree upon an amendment to this Agreement such that each chemical compound or product that is part of the Competitive Program would be deemed to be a Collaboration Aptamer, whether or not such chemical compound or product meets standards or criteria hereunder for Collaboration Aptamers. The Parties’ rights and obligations under this Agreement then would apply in all relevant respects to any such deemed Collaboration Aptamers (including without limitation, the payment of the milestones and royalties set forth in this Agreement.) If ELAN determines, in its sole discretion, that it does not 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 treatment under Rule 406 of the Securities Act. desire to combine such Competitive Program with the Collaboration, then ELAN would have an additional [***] days during which it would determine whether to divest itself of the Competitive Program or terminate this Agreement pursuant to Section 10.2.1. If ELAN notifies ARCHEMIX in writing that it will divest itself of the Competitive Program within such time frame, then it shall do so as promptly as practicable while maintaining separate teams working on such Competitive Program and the Collaboration. If ELAN does not notify ARCHEMIX in writing that ELAN will terminate this Agreement or divest itself of such Competitive Program within such [***] day time period, then, unless otherwise agreed to by ARCHEMIX, the Aptamers binding specifically to the relevant Program Target that were identified or used in the Research Program shall be deemed to be Terminated Program Aptamers for purposes of this Agreement.

Change of Control Involving Competitive Program. If the merger, consolidation or acquisition (or other Change of Control Control) that is described in the ELAN AstraZeneca Change of Control Notice involves a Third Party that has a Competitive Program, ELAN shall so notify ARCHEMIX and provide to ARCHEMIX a description of the nature of such Competitive Program; provided thatthen, notwithstanding any provision hereof, the existence and continuation of such Competitive Program in any respect following such a merger, consolidation or acquisition (or other Change of Control Control) shall not be deemed to be a breach of this Agreement. The Parties shall then promptly meet to discuss whetherAgreement or result in any termination or limitation of any of Targacept’s exclusivity obligations under Sections 8.6.1 and 8.6.2, notwithstanding any provision hereofprovided that, such Competitive Program would continue following such Change of Control. In any such meeting unless the Parties will review any restrictions applicable to such Competitive Program that may prevent its combination with the Collaborationagree otherwise in writing, and other issues that may impact the potential combination of such Competitive Program with the Collaboration. If ELAN determinesAstraZeneca shall, in its sole discretion, that such Competitive Program should be combined with the Collaboration, then within [***] days the Parties shall agree upon an amendment to this Agreement such that each chemical compound or product that is part of the Competitive Program would be deemed to be a Collaboration Aptamer, whether or not such chemical compound or product meets standards or criteria hereunder for Collaboration Aptamers. The Parties’ rights and obligations under this Agreement then would apply in all relevant respects to any such deemed Collaboration Aptamers (including without limitation, the payment of the milestones and royalties set forth in this Agreement.) If ELAN determines, in its sole discretion, that it does not 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 treatment under Rule 406 of the Securities Act. desire to combine such Competitive Program with the Collaboration, then ELAN would have an additional [*****] days during which it would determine whether to divest itself after the date of the merger, consolidation or acquisition (or other Change of Control), notify Targacept whether it intends to: (x) cease, or cause its relevant Affiliate to cease, the Competitive Program Program; (y) divest, or cause its relevant Affiliate to divest, whether by license or otherwise, the Competitive Program; or (z) terminate this Agreement pursuant to Section 10.2.1. 11.2.3. (a) If ELAN AstraZeneca notifies ARCHEMIX Targacept in writing that it will divest itself of the Competitive Program within such time frame, then it shall do so as promptly as practicable while maintaining separate teams working on such Competitive Program and the Collaboration. If ELAN does not notify ARCHEMIX in writing that ELAN will terminate this Agreement or divest itself of such Competitive Program within such [********] day time period that it intends to cease, or cause its relevant Affiliate or its acquiror or acquiree (as applicable) to cease the Competitive Program, AstraZeneca or its Affiliate, acquiror or acquiree, as the case may be, shall (i) promptly cease the Competitive Program with due regard for patient safety and the rights of any subjects that are participants in any clinical studies or post-approval studies relating to the Competitive Program and Applicable Laws; and (ii) keep Targacept reasonably informed of its efforts and progress in effecting such cessation of activities and shall provide a written summary of such efforts to Targacept each Calendar Quarter until completed. (b) If AstraZeneca notifies Targacept in writing within such [********] period that it intends to divest such Competitive Program, AstraZeneca or its Affiliate, acquiror or acquiree (as the case may be) shall use reasonable efforts to effect such divestiture as quickly as possible and shall keep Targacept reasonably informed of its efforts and progress in effecting such divestiture and shall provide a written summary of such efforts each Calendar Quarter until completed. If AstraZeneca or its Affiliate, acquiror or acquiree effects such divestiture by way of one or more sublicenses, the licensor shall be entitled to receive license fees, milestones and royalties on sales of any products developed pursuant to the Competitive Program so divested, provided that neither AstraZeneca nor any of its Affiliates (or its acquiror or acquiree, as applicable) funds or continues to conduct any development or commercialization of such products. For purposes of clarity, such retained financial interest shall not be deemed to be a “relevant factor” (but the existence or continuation by the acquiror of the Competitive Program shall continue to be deemed to be a “relevant factor”) for purposes of determining AstraZeneca’s Commercially Reasonable Efforts obligations under this Agreement. In addition, such licensor shall have the right to take back rights to such product if the licensee materially breaches its obligations under its license agreement with AstraZeneca or its Affiliate, acquiror or acquiree, in which event such product, if it continues to be a Competitive Program, shall again become subject to the terms of this Section 15.2.2. If, notwithstanding such reasonable efforts, AstraZeneca is not able to effect such a divestiture, it shall have the right to cease such Competitive Program as provided in Section 15.2.2(a). If AstraZeneca fails to provide the notice under this Section 15.2.2 within such [********] period, or having provided such notice, fails to carry out the designated actions, subject to Sections 15.2.2(a) and 15.2.2(b), then, unless otherwise agreed to by ARCHEMIXthe Parties agree otherwise, the Aptamers binding specifically to the relevant Program Target that were identified or used in the Research Program AstraZeneca shall be deemed to be Terminated Program Aptamers in breach of its exclusivity obligations under Section 8.6.3, if applicable, and [********] shall, if applicable, be limited or terminated as provided therein (provided that for purposes of this AgreementSection 15.2.2, the filing of a Drug Approval Application or the commercial sale of (i) an Alpha4Beta2 Agonist that is not a Collaboration Compound, Candidate Drug or Product in the Field or in Schizophrenia, or (ii) a Secondary Pharmacology Compound or an Other NNR Compound in the Field or, prior to the Schizophrenia Expiration Date, in Schizophrenia, in each case ((i) and (ii)), shall be deemed to be Initiation of a Clinical Trial for purposes of Section 8.6.1(a) or (b), as applicable) and Targacept shall thereafter have no further obligations under Section 5.10.3; provided, however, that, notwithstanding anything in this Agreement to the contrary, in no event shall a determination that AstraZeneca has breached its exclusivity obligations as a result of a merger, consolidation or acquisition (or other Change of Control) with a Third Party that has a Competitive Program give rise to a right to terminate this Agreement and the exclusive right and remedy available to Targacept with respect to such breach shall be as provided in this Section 15.2.2, provided that during the period in which the obligations set forth in Section 8.6.3 are in force, if AstraZeneca or any of its Affiliates merges or consolidates with, is otherwise acquired by, or acquires, a Third Party (including through a Change of Control) that has a Competitive Program, and AstraZeneca does not cease or divest such Competitive Program as provided in Section 15.2.2(a) or 15.2.2(b), then, solely with respect to the Development of any Candidate Drug or Product, and without expanding AstraZeneca’s obligations under Section 5.5.1 the effect of diverting effort or resources to such Candidate Drug or Product on such Competitive Program shall not be taken into account when determining whether AstraZeneca is exercising Commercially Reasonable Efforts with respect to such Development as and if required under Section 5.5.1.

Change of Control Involving Competitive Program. If the Change of Control that is described in the ELAN ARCHEMIX Change of Control Notice involves a Third Party 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 treatment under Rule 406 of the Securities Act. that has a Competitive Program, ELAN ARCHEMIX shall so notify ARCHEMIX ELAN and provide to ARCHEMIX ELAN a description of the nature of such Competitive Program; provided provided, that, the existence of such Competitive Program following such a Change of Control shall not be deemed to be a breach of this Agreement. The Parties shall then promptly meet to discuss whether, notwithstanding any provision hereof, such Competitive Program would continue following such Change of Control. In any such meeting the Parties will review any restrictions applicable to such Competitive Program that may prevent its combination with the Collaboration, and other issues that may impact the potential combination of such Competitive Program with the Collaboration. If ELAN determines, in its sole discretion, that such Competitive Program should be combined with the Collaboration, then within [***] days the Parties shall agree upon an appropriate amendment to this Agreement such that each chemical compound or product that is part of the Competitive Program would be deemed to be a Collaboration Aptamer, Aptamer whether or not such chemical compound or product meets standards or criteria hereunder for Collaboration Aptamers. The Parties’ rights and obligations under this Agreement then would apply in all relevant respects to any such deemed Collaboration Aptamers (including without limitation, the payment of the milestones and royalties set forth in this Agreement.) ). If ELAN determines, in its sole discretion, that it does not desire to combine such Competitive Program with the Collaboration, then it will so notify ARCHEMIX and ARCHEMIX shall have thirty (30) days during which it would determine whether to divest itself of the Competitive Program. If ARCHEMIX notifies ELAN within such time frame that it will divest itself of the Competitive Program, then it shall do so as promptly as practicable while maintaining separate teams working on such Competitive Program and the Collaboration. If within such [***] day period ARCHEMIX does not respond in writing to ELAN, or ARCHEMIX notifies ELAN that it will not divest itself of such Competitive Program, then ELAN shall have the right to either (A) terminate that portion of the Research Program related to the Program Target(s) involved in the Competitive Program, including a permanent reduction in all Research Program funding and FTE support related thereto to a rate of [***] FTEs per Program Target (notwithstanding Section 5.2.1), or (B) terminate this Agreement, in which case the consequences of termination shall be as set forth in Section 10.3.2. In the event ELAN elects either option (A) or (B), above, such Program Target shall not be deemed a Rejected Program Target, nor shall Aptamers binding to that Program Target be 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 treatment under Rule 406 of the Securities Act. desire to combine such Competitive Program with the Collaboration, then ELAN would have an additional [***] days during which it would determine whether to divest itself of the Competitive Program or terminate this Agreement pursuant to Section 10.2.1. If ELAN notifies ARCHEMIX in writing that it will divest itself of the Competitive Program within such time frame, then it shall do so as promptly as practicable while maintaining separate teams working on such Competitive Program and the Collaboration. If ELAN does not notify ARCHEMIX in writing that ELAN will terminate this Agreement or divest itself of such Competitive Program within such [***] day time period, then, unless otherwise agreed to by ARCHEMIX, the Aptamers binding specifically to the relevant Program Target that were identified or used in the Research Program shall be deemed to be Terminated Program Aptamers for purposes or otherwise revert or be licensed to ARCHEMIX as a result of this Agreementsuch election.

Change of Control Involving Competitive Program. If the merger, consolidation or acquisition (or other Change of Control Control) that is described in the ELAN AstraZeneca Change of Control Notice involves a Third Party that has a Competitive Program, ELAN shall so notify ARCHEMIX and provide to ARCHEMIX a description of the nature of such Competitive Program; provided thatthen, notwithstanding any provision hereof, the existence and continuation of such Competitive Program in any respect following such a merger, consolidation or acquisition (or other Change of Control Control) shall not [********] or result in [********], provided that, unless the Parties agree otherwise in writing, AstraZeneca shall, within [********] after the date of the merger, consolidation or acquisition (or other Change of Control), notify Targacept whether it intends to: (x) cease, or cause its relevant Affiliate to cease, the Competitive Program; (y) divest, or cause its relevant Affiliate to divest, whether by license or otherwise, the Competitive Program; or (z) terminate this Agreement pursuant to Section 11.2.3. (a) If AstraZeneca notifies Targacept in writing within such [********] period that it intends to cease, or cause its relevant Affiliate or its acquiror or acquiree (as applicable) to cease the Competitive Program, AstraZeneca or its Affiliate, acquiror or acquiree, as the case may be, shall (i) promptly cease the Competitive Program with due regard for patient safety and the rights of any subjects that are participants in any clinical studies or post-approval studies relating to the Competitive Program and Applicable Laws; and (ii) keep Targacept reasonably informed of its efforts and progress in effecting such cessation of activities and shall provide a written summary of such efforts to Targacept each Calendar Quarter until completed. (b) If AstraZeneca notifies Targacept in writing within such [********] period that it intends to divest such Competitive Program, AstraZeneca or its Affiliate, acquiror or acquiree (as the case may be) shall use reasonable efforts to effect such divestiture as quickly as possible and shall keep Targacept reasonably informed of its efforts and progress in effecting such divestiture and shall provide a written summary of such efforts each Calendar Quarter until completed. If AstraZeneca or its Affiliate, acquiror or acquiree effects such divestiture by way of one or more sublicenses, the licensor shall [********] pursuant to the Competitive Program so divested, provided that neither AstraZeneca nor any of its Affiliates (or its acquiror or acquiree, as applicable) [********]. For purposes of clarity, such [********] shall not be deemed to be a breach of this Agreement. The Parties shall then promptly meet to discuss whether, notwithstanding any provision hereof, such Competitive Program would continue following such Change of Control. In any such meeting “relevant factor” (but the Parties will review any restrictions applicable to such Competitive Program that may prevent its combination with existence or continuation by the Collaboration, and other issues that may impact the potential combination of such Competitive Program with the Collaboration. If ELAN determines, in its sole discretion, that such Competitive Program should be combined with the Collaboration, then within [***] days the Parties shall agree upon an amendment to this Agreement such that each chemical compound or product that is part acquiror of the Competitive Program would shall continue to be deemed to be a Collaboration Aptamer, whether or not such chemical compound or product meets standards or criteria hereunder “relevant factor”) for Collaboration Aptamers. The Parties’ rights and purposes of determining AstraZeneca’s Commercially Reasonable Efforts obligations under this Agreement then would apply in all relevant respects Agreement. In addition, such licensor shall have the right to any take back rights to such deemed Collaboration Aptamers (including without limitationproduct if the licensee materially breaches its obligations under its license agreement with AstraZeneca or its Affiliate, the payment of the milestones and royalties set forth in this Agreement.) If ELAN determinesacquiror or acquiree, in its sole discretionwhich event such product, that if it does not Portions continues to be a Competitive Program, shall again become subject to the terms of this Exhibit were omitted and Section 15.2.2. If, notwithstanding such reasonable efforts, AstraZeneca is not able to effect such a divestiture, it shall have been filed separately with the Secretary of the Commission pursuant right to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. desire to combine cease such Competitive Program with the Collaboration, then ELAN would have an additional [***] days during which it would determine whether to divest itself of the Competitive Program or terminate this Agreement pursuant to as provided in Section 10.2.115.2.2(a). If ELAN notifies ARCHEMIX in writing that it will divest itself of AstraZeneca fails to provide the Competitive Program within such time frame, then it shall do so as promptly as practicable while maintaining separate teams working on such Competitive Program and the Collaboration. If ELAN does not notify ARCHEMIX in writing that ELAN will terminate notice under this Agreement or divest itself of such Competitive Program Section 15.2.2 within such [********] day time period, or having provided such notice, fails to carry out the designated actions, subject to Sections 15.2.2(a) and 15.2.2(b), then, unless otherwise agreed to by ARCHEMIXthe Parties agree otherwise, AstraZeneca shall [********], if applicable, and [********] shall, if applicable, be limited or terminated as provided therein (provided that for purposes of this Section 15.2.2, the Aptamers binding specifically filing of a Drug Approval Application or the commercial sale of (i) an Alpha4Beta2 Agonist that is not a Collaboration Compound, Candidate Drug or Product in the Field or in Schizophrenia, or (ii) a Secondary Pharmacology Compound or an Other NNR Compound in the Field or, prior to the relevant Program Target that were identified or used Schizophrenia Expiration Date, in the Research Program Schizophrenia, in each case ((i) and (ii)), shall be deemed to be Terminated [********], as applicable) and Targacept shall thereafter have no further obligations under Section 5.10.3; provided, however, that, notwithstanding anything in this Agreement to the contrary, in no event shall a determination that AstraZeneca has breached its exclusivity obligations as a result of a merger, consolidation or acquisition (or other Change of Control) with a Third Party that has a Competitive Program Aptamers for purposes [********], provided that during the period in which [********], if AstraZeneca or any of this Agreementits Affiliates merges or consolidates with, is otherwise acquired by, or acquires, a Third Party (including through a Change of Control) that has a Competitive Program, and AstraZeneca does not cease or divest such Competitive Program as provided in Section 15.2.2(a) or 15.2.2(b), then, solely with respect to the Development of any Candidate Drug or Product, and without expanding AstraZeneca’s obligations under Section 5.5.1, the effect of diverting effort or resources to such Candidate Drug or Product on such Competitive Program shall not be [********].