Common use of Compliance with Third Party Agreements Clause in Contracts

Compliance with Third Party Agreements. (a) The grants by MERRIMACK under Licensed Intellectual Property set forth in Section 7.1 include the sublicense of certain Licensed Intellectual Property that is not owned by MERRIMACK. SANOFI-AVENTIS’ rights and licenses under, or with respect to, Licensed Intellectual Property, including any prosecution or enforcement undertaken by the Parties pursuant to Article IX, are limited to the rights granted by Third Party licensors to MERRIMACK under the Existing Third Party Licenses and are subject to all applicable restrictions, limitations and obligations imposed on MERRIMACK or its sublicensees in such Existing Third Party Licenses. SANOFI-AVENTIS shall comply, and cause its Affiliates and sublicensees to comply, with all such restrictions, limitations and obligations (including Paragraphs 4.2, 4.3, 5.1, 5.2, 8.1, 9.1-9.5, 10.1-10.5, 12.5, 13.7-13.9 and 14.10 of the PHS Agreement, a copy of which provisions is attached hereto as Exhibit E). (b) During the Term, MERRIMACK shall use Commercially Reasonable Efforts to maintain the Existing Third Party Licenses in effect (and in particular shall use Commercially Reasonable Efforts not to commit any breach that would entitle the Third Party licensor to terminate an Existing Third Party License) and shall not terminate any Existing Third Party License without SANOFI-AVENTIS’ prior written consent. In addition, during the Term, MERRIMACK shall promptly notify SANOFI-AVENTIS of any written notice of breach or termination received by MERRIMACK with respect to any Existing Third Party License and SANOFI-AVENTIS shall have the right to cure any such breach on MERRIMACK’s behalf. (c) Any sublicensee obligations required by any Existing Third Party License to be included in a sublicense thereunder, including without limitation any required provision making the applicable Third Party licensor a third party beneficiary of any sublicense thereunder, shall be deemed to be included in this Agreement, provided a copy of the relevant agreement has been provided to SANOFI-AVENTIS prior to the Execution Date. (d) The license granted by MERRIMACK in Section 7.1 with respect to the Patent Rights licensed under the PHS Agreement are subject to rights reserved by the United States government as set forth in the PHS Agreement.

Compliance with Third Party Agreements. (a) The grants by MERRIMACK license grant under Licensed Intellectual Property set forth in Section 7.1 by Eisai to Company with respect to Molecule BAN2401 and Eisai Collaboration Products containing Molecule BAN2401 include the sublicense of certain Licensed Intellectual Property that is not owned by MERRIMACKrights licensed to Eisai under the Existing Third Party Licenses. SANOFI-AVENTIS’ Company’s rights and licenses under, or with respect to, Licensed Intellectual Property, including any prosecution or enforcement undertaken by the Parties pursuant to Article IX, such sublicense rights are limited to the rights granted by Third Party licensors [***] and [***] to MERRIMACK Eisai under the Existing Third Party Licenses [***] and the [***] and are subject to all applicable restrictions, limitations and obligations imposed on MERRIMACK Eisai or its sublicensees in such Existing Third Party Licensesthe [***] and the [***]. SANOFI-AVENTIS shall comply, and cause its Affiliates and sublicensees to comply, with all such restrictions, limitations and obligations (including Paragraphs 4.2, 4.3, 5.1, 5.2, 8.1, 9.1-9.5, 10.1-10.5, 12.5, 13.7-13.9 and 14.10 Company acknowledges receipt of unredacted copies of the PHS [***] and the [***], which Company shall maintain as part of the Confidential Information of Eisai and shall not use or disclose other than in connection with its exercise of rights and fulfillment of its obligations under this Agreement, a copy of which provisions is attached hereto as . Exhibit E). (b) During the Term, MERRIMACK shall use Commercially Reasonable Efforts to maintain 7.7 sets forth material obligations under the Existing Third Party Licenses that are obligations of Company under this Agreement other than those financial obligations described in effect (and in particular Section 8.3(a). Eisai shall use Commercially Reasonable Efforts not promptly provide to commit Company copies of any breach that would entitle the notices required to be given to any Third Party licensor to terminate an licensors (a) of Existing Third Party LicenseLicenses, on account of the execution of this Agreement (or any other sublicense executed under this Agreement), (b) of Third Party Licenses entered into after the Effective Date, on account of the grant of a sublicense to Company, and shall not terminate (c) of any Existing Third Party License without SANOFI-AVENTIS’ prior written consent. In addition, that is terminated during the Term, MERRIMACK wherein such notice would be required upon such termination to effect the applicable sublicensee survival provision with respect to Company’s rights under this Agreement. Eisai agrees that it shall promptly notify SANOFI-AVENTIS not provide a copy of this Agreement to any written notice Third Party licensor except to the extent otherwise required under the applicable Third Party License. Prior to providing any such copies, Eisai shall, (1) unless otherwise required under the applicable Third Party License, redact the terms of breach this Agreement to the extent not pertinent to an understanding of a Party’s obligations or termination received by MERRIMACK benefits under this Agreement or a verification of compliance with the -70- 132539616_1 applicable Third Party License; (2) provide Company a proposed redacted version of this Agreement within a reasonable amount of time to permit Company to review and comment thereon, and consider in good faith and take into account and implement Company’s reasonable comments with respect to any Existing Third Party License such proposed redactions; and SANOFI-AVENTIS shall have the right (3) provide to cure any such breach on MERRIMACK’s behalf. (c) Any sublicensee obligations required by any Existing Third Party License Company a copy of this Agreement provided to be included in a sublicense thereunder, including without limitation any required provision making the applicable Third Party licensor a third party beneficiary of any sublicense thereunder, shall be deemed to be included in this Agreement, provided a copy of the relevant agreement has been provided to SANOFI-AVENTIS prior to the Execution Datelicensor. (d) The license granted by MERRIMACK in Section 7.1 with respect to the Patent Rights licensed under the PHS Agreement are subject to rights reserved by the United States government as set forth in the PHS Agreement.

Compliance with Third Party Agreements. (a) The grants by MERRIMACK under Licensed Intellectual Property set forth in Section 7.1 include the sublicense of certain Licensed Intellectual Property that is not owned by MERRIMACKPharmaEngine. SANOFI-AVENTIS’ XXXXXX’x rights and licenses under, or with respect to, Licensed Intellectual Property, including any prosecution or enforcement undertaken by the Parties pursuant to Article IX, are limited with respect to the rights granted by Third Party licensors to MERRIMACK under the Existing Third Party Licenses PharmaEngine Collaboration Agreement and are subject to all applicable restrictions, limitations and obligations imposed on MERRIMACK or its sublicensees in Sections 4.2(b), 4.2(d), 4.4, 5.2(c), 5.4, 5.5, 8.3, 8.4(b) and 9.7 (the “Flow-Through Sections”) of such Existing Third Party LicensesPharmaEngine Collaboration Agreement; provided, however, if the Flow-Through Sections require communication with PharmaEngine, that MERRIMACK shall be responsible for such communication but XXXXXX shall not prevent or otherwise obstruct such communication and XXXXXX shall cooperate to provide MERRIMACK with timely information as may be needed for MERRIMACK to comply with such obligations. SANOFI-AVENTIS XXXXXX shall comply, and cause its Affiliates and sublicensees to comply, with all such restrictions, limitations and obligations (including Paragraphs 4.2, 4.3, 5.1, 5.2, 8.1, 9.1-9.5, 10.1-10.5, 12.5, 13.7-13.9 and 14.10 of the PHS AgreementFlow-Through Sections. For the avoidance of doubt, a copy of which provisions is attached hereto as Exhibit E)the Flow-Through Sections specifically do not include any payment obligations. (b) During The Flow-Through Sections of the Term, MERRIMACK shall use Commercially Reasonable Efforts to maintain the Existing Third Party Licenses in effect (and in particular shall use Commercially Reasonable Efforts not to commit any breach that would entitle the Third Party licensor to terminate an Existing Third Party License) and shall not terminate any Existing Third Party License without SANOFI-AVENTIS’ prior written consent. In addition, during the Term, MERRIMACK shall promptly notify SANOFI-AVENTIS of any written notice of breach or termination received by MERRIMACK with respect to any Existing Third Party License and SANOFI-AVENTIS shall have the right to cure any such breach on MERRIMACK’s behalf. (c) Any sublicensee obligations required by any Existing Third Party License to be included in a sublicense thereunder, including without limitation any required provision making the applicable Third Party licensor a third party beneficiary of any sublicense thereunder, PharmaEngine Collaboration Agreement shall be deemed to be included in this Agreement, provided a copy of the relevant agreement has been provided Agreement and XXXXXX shall cooperate with MERRIMACK as reasonably requested by MERRIMACK to SANOFI-AVENTIS prior enable MERRIMACK to comply with such provisions. (c) MERRIMACK shall be solely responsible for paying all amounts due pursuant to the Execution DatePharmaEngine Collaboration Agreement; provided, however, that if MERRIMACK fails to pay amounts due under the PharmaEngine Collaboration Agreement as a consequence of XXXXXX failing to pay amounts payable by XXXXXX to MERRIMACK hereunder in breach of this Agreement (which failure to pay materially contributes to MERRIMACK’s inability to pay PharmaEngine), then MERRIMACK shall not have any liability to XXXXXX hereunder for MERRIMACK’s failure to pay such amounts. (d) The license granted Upon a claim of breach of the PharmaEngine Collaboration by PharmaEngine, MERRIMACK and XXXXXX shall discuss in Section 7.1 with respect good faith a mutually agreeable solution to remedy such claim of breach which solution may, if mutually agreed by the Parties, include the assumption by XXXXXX and/or one of its Affiliates of the obligation to make any required payments related to the Licensed Technology and Licensed Patent Rights licensed under the PHS Agreement are subject directly to rights reserved PharmaEngine. MERRIMACK shall indemnify XXXXXX for any such amounts paid by the United States government as set forth XXXXXX to PharmaEngine, which may, at XXXXXX’x option, be credited against any amounts otherwise due or payable in the PHS Agreementfuture from XXXXXX to MERRIMACK hereunder.