Diligence Failures. If Hospital determines that Company has failed to fulfill any of its obligations under Section 3.1, then Hospital may treat such failure as a default and may terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4.
Diligence Failures. In the event of either party’s failure, for any reason, to complete any of its respective Diligence Obligations (in each case, a “Diligence Failure”), the following provisions shall apply; provided, however, that Evogene shall not be deemed to have suffered a Diligence Failure if (i) for any Gene Group or Delivery Group, the number of Collaboration Hits constituting or included in such Gene Group or Delivery Group is up to [* * *] percent ([* * *]%) lower than the number that Evogene was required to provide under Section 5.2.2 or if for any Gene Group or Delivery Group, the number of Collaboration Hits (or Collaboration Hit Homologs thereof if approved by the Research Committee as provided in 5.2.4) as to which Evogene has completed Model Plant Validation is up to [* * *] percent ([* * *]%) lower than the number Evogene was required to complete under Section 5.2.3, and (ii) the percentage of Validated Hits from such Gene Group or Delivery Group, based on the required minimum number of Base Collaboration Hits under Section 5.2.2, exceeds [* * *] percent ([* * *]%). For example, if a Gene Group was supposed to comprise at least 600 Collaboration Hits but actually comprises [* * *] Collaboration Hits, and the number of Validated Hits from such Gene Group exceeds [* * *] ([* * *]), then Evogene will not be deemed to have suffered a Diligence Failure. If either party believes that the other party has suffered a Diligence Failure, such party, after at least [* * *] business ([* * *]) days’ prior written notice to the Steering Committee that it intends to send such a notice, may assert such Diligence Failure by written notice hereunder. If such party fails to deliver such notice within [* * *] ([* * *]) days after the notifying party becomes aware of such Diligence Failure, then such Diligence Failure shall be deemed accepted, and neither party shall have any rights or obligations hereunder as a result of such Diligence Failure. *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.
Diligence Failures. If HOSPITAL determines that COMPANY has failed to fulfill any of its obligations under Section 3.1 then HOSPITAL may treat such failure as a default and may terminate this AGREEMENT and/or the licenses granted hereunder in accordance with Section 10.4, provided, however, that in the event that COMPANY reasonably believes that it may fail to meet any of its obligations under Section 3.1 above due to circumstances that COMPANY could not have reasonably avoided, such as technical difficulties or delays in pre-clinical or clinical studies or regulatory processes, and COMPANY notifies HOSPITAL of such anticipated failure at least thirty (30) days in advance of such milestone, COMPANY may request a reasonable extension for such milestone, which HOSPITAL shall consider in good faith. Any grant of a milestone extension shall be at HOSPITAL’s sole discretion, provided that if in HOSPITAL’s sole judgment COMPANY has made commercially reasonable efforts to meet its obligations under Section 3.1, the grant of such milestone extension shall not be unreasonably withheld.
Diligence Failures. If Company fails to fulfill any of its obligations under Section 3.1(b) with respect to any of the countries listed in Section 3.1(b)(ii)(a) or with respect to at least [**] of the countries listed in Section 3.1(b)(ii)(b) in any material respect, then, subject to the notice and cure provisions of Section 10.4, Hospital may treat such failure as a default and, at Hospital’s option, may, solely with respect to the country(ies) to which such failure relates, either convert the License under 2(a)(i) to non-exclusive or terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4. For the avoidance of doubt, Hospital shall not, based on Company’s failure to fulfill it obligations under Section 3.1(b), have the right to terminate this Agreement or Company’s licenses hereunder, or convert Company’s licenses hereunder to non-exclusive, with respect to countries in which Company satisfies its obligations under Section 3.1 (b). In addition, if Company, together with its Affiliates, Sublicensees and Clinical End Users, ceases all development and commercialization activities with respect to all Products and Processes for more than [**], Hospital may treat such failure as a default and, at Hospital’s option, may either convert the License under 2(a)(i) to non-exclusive or terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4.
Diligence Failures. If Company fails to fulfill any of its obligations under Section 3.1(c) with respect to any of the countries listed in Section 3.1(c)(ii)(a) or with respect to at least three of the countries listed in Section 3.1(c)(ii)(b) in any material respect, then, subject to the notice and cure provisions of Section 10.4, Hospital may treat such failure as a default and, at Hospital’s option, may, solely with respect to the country(-ies) to which such failure relates, either convert the License under 2(a)(i) to non-exclusive or terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4. For the avoidance of doubt, Hospital shall not, based on Company’s failure to fulfill it obligations under Section 3.1(c), have the right to terminate this Agreement or Company’s licenses hereunder, or convert Company’s licenses hereunder to non-exclusive, with respect to countries in which Company satisfies its obligations under Section 3.1(c). In addition, if Company, together with its Affiliates, Sublicensees and Clinical End Users, ceases all development and commercialization activities with respect to all Products and Processes for more than [**], Hospital may treat such failure as a default and, at Hospital’s option, may either convert the License under 2(a)(i) to non-exclusive or terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4. If Company fails to fulfill any of its obligations under Section 3.1 (a) or 3.1(b), then, subject to the notice and cure provisions of Section 10.4, Hospital may treat such failure as a default and, at Hospital’s option, may, in the case of such failure with respect to Section 3.1 (a), solely with respect to the Hospital Patent Rights, or in the case of such failure with respect to Section 3.1(b), solely with respect to the Media Patent Rights, either convert the License under 2(a)(i) to non-exclusive with respect to the Hospital Patent Rights or Media Patent Rights, as applicable, or terminate any license granted hereunder with respect to the Hospital Patent Rights or Media Patent Rights, as applicable, in accordance with Section 10.4. For the avoidance of doubt, Hospital shall not, based on Company’s failure to fulfill it obligations under Section 3.1 (a) or 3.1(b), have the right to terminate this Agreement or Company’s licenses hereunder, or convert Company’s licenses hereunder to non-exclusive, other than with respect to the Hospital Patent Rights or Media Patent Right...
Diligence Failures. If BIDMC determines that any of the obligations under Section 3.1 have not been fulfilled, then BIDMC may treat such failure as a default and may terminate this Agreement in accordance with the terms set forth in Section 10.4.
Diligence Failures. The benchmark dates set out in Section 3.1 shall be material obligations of this Agreement. Company shall demonstrate compliance with the benchmark dates set out in Section 3.1. If events or difficulties encountered by Company in the development of Products or Processes occur that Company can demonstrate to Hospital’s reasonable satisfaction are not due to Company’s (or Affiliates or Sublicensees, as the case may be) failure to exercise commercially reasonable efforts, and Company (or Affiliates or Sublicensees, as the case may be) has taken commercially reasonable effective steps to correct the failure, in which case Hospital shall agree to an extension of one year of the time allowed for achieving the benchmarks detailed in Section 3.1 above (or, in Hospital’s sole discretion, such longer period as is demonstrated by Company to be required for diligent development), providing that Company shall notify Hospital, in writing, the reason for the delay no later than sixty (60 days) prior to the date of the relevant diligence benchmark, and such writing shall state Company’s plan to facilitate achievement of the relevant benchmark within the one year extension period, and by paying to Hospital a non-refundable, non-creditable extension fee of $50,000 within thirty (30) days of sending such notice to Hospital. Company shall be entitled to no more than one extension for any individual benchmark described in Section 3.1, and no more than a total of two extensions in the aggregate.
Diligence Failures. If Hospital determines that Company has materially breached any of its obligations under Section 3.1, Hospital shall notify Company in writing specifying in detail the bases for such alleged breach. If Company fails to cure such breach within [***] ([***]) days after such written notice from Hospital, then Hospital may treat such failure as a default and may terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4
Diligence Failures. (a) If Company envisages that it will fail to meet one of the obligations under Section 3.1, it will notify Hospital at least three (3) months before the respective obligation is due. Following Hospital’s receipt of such notice, the Parties will, in good faith, negotiate regarding Hospital granting an extension of the dates for the obligations set forth under Section 3.1. If Hospital grants an extension of diligence milestones such that FDA submission contemplated by Section 3.1(a)(iv) happens beyond [***], then diligence extension milestone fees as described below will be due upon FDA approval.
(i) 1 year delay [***];
(ii) 2 year delay [***] (i.e., [***] for 2nd year of failure, if [***] for 1st year of extension has already been paid);
(iii) 3 year delay [***] (i.e., [***] for 3rd year of failure, if [***] for 1st year of extension and [***] for 2nd year of extension has already been paid); and
(iv) >3 years, royalty on Net Sales would equal [***] in addition to these above payment obligations.
(b) Hospital’s determination regarding granting the above mentioned diligence extensions, as well as Hospital’s right to terminate this Agreement in the event that Company fails to meet any of its obligations under Section 3.1 shall be guided by the level of continued commitment by Company to bring a Product or Process to the market, the ability of Company relative to alternate opportunities available to Hospital to bring Products and Processes to the market to benefit patients, and by the level investment of money that Company has made in Hospital’s Patent Rights.
(c) Subject to Section 3.2(b), if Hospital determines that Company has failed to fulfill any of its obligations under Section 3.1, then Hospital may treat such failure as a default and may terminate this Agreement and/or any license granted hereunder in accordance with Section 10.4.
Diligence Failures. If Auxilium believes in good faith that Pfizer has failed to utilize Commercially Reasonable Efforts (which, for clarity would include the failure to satisfy the requirements set forth in Section 6.3.1) with respect to the Commercialization of the Product in the Field in the Territory pursuant to this Agreement, then Auxilium shall first raise such issue through the JSC, identifying the countries at issue and specific detailed reasons underlying such allegation. Within sixty (60) days following Pfizer’s receipt of any such notice from Auxilium, Pfizer shall provide Auxilium with a written response specifying, in reasonable detail, how it is using or has begun to use such Commercially Reasonable Efforts.
