Discontinuation Option. (a) A Program may only be discontinued in accordance with Section 4.2(c). In the event of such a Program discontinuation during the Term, (i) Symphony GenIsis shall so notify Isis promptly and in writing of such discontinuation, and (ii) Isis shall have the right and option (a “Discontinuation Option”), exercisable for [***] days after receipt of such written notice from Symphony GenIsis of such discontinuation, to buy back the Licensed Intellectual Property related to such discontinued Program for a price (payable by wire transfer to Symphony GenIsis) that is the sum of (x) the funds expended on such discontinued Program and (y) a share of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures (the “Discontinuation Price”), to be reasonably determined between the Parties, or, if the Parties are unable to come to a resolution, for a Discontinuation Price determined in accordance with Section 11.1(c) hereof. If the Discontinuation Price is determined in accordance with Section 11.1(c), then such [***] day period shall be extended by the time needed by the Experts for such determination. Any Discontinuation Price paid to Symphony GenIsis under this Section 11.1(a) and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. (b) Following the expiration of the Discontinuation Option without exercise by Isis, if Symphony GenIsis transfers or licenses such Program rights to a third party before the termination of the Term, all payments and other consideration that Holdings receives directly from such third party or that Symphony GenIsis receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. During the Term, under no circumstances may Symphony GenIsis or Isis (unless Isis has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued Program. (c) If Isis and Symphony GenIsis cannot agree on the Discontinuation Price, with respect to Section 11.1(a), Isis and Symphony GenIsis shall each appoint a nationally recognized expert in the field of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis and Symphony GenIsis in the preceding twelve (12) months), and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree on such Discontinuation Price as applicable, two (2) of such three (3) Experts shall jointly determine, the Discontinuation Price, which determination shall be made within thirty (30) days of the appointment of the third Expert and, absent manifest error, shall be (i) binding and conclusive and (ii) the Discontinuation Price at which the Discontinuation Option shall be exercised by Isis. All costs and expenses incurred in appointing the Experts shall be shared equally between Isis and Symphony GenIsis.
Appears in 1 contract
Samples: Research and Development Agreement (Isis Pharmaceuticals Inc)
Discontinuation Option. (a) A Program may only be discontinued in accordance with Section 4.2(c). In the event of such a Program discontinuation during the Term, (i) the Symphony GenIsis Collaboration shall so notify Isis the Company promptly and in writing of such discontinuation, and (ii) Isis the Company shall have the right and option (a “Discontinuation Option”), exercisable for [***[ * ] ([ * ]) days after receipt of such written notice from the Symphony GenIsis Collaboration of such discontinuation, to buy back all rights of the Symphony Collaboration to such discontinued Program, the Products being developed in such discontinued Program, and the Licensed Intellectual Property related to such discontinued Program for a price (payable by wire transfer to the Symphony GenIsisCollaboration) that is [ * ]% of the sum of (x) the funds expended on such discontinued Program and (y) a share of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures (such sum, the “Discontinuation Price”), to be reasonably determined between the Parties, or, if the Parties are unable to come to a resolutionresolution within [ * ] ([ * ]) days after receipt of such written notice from the Symphony Collaboration of such discontinuation, for a Discontinuation Price to be determined in accordance with Section 11.1(c11(b) hereof; provided, that if the Ophthalmology Program is discontinued, the Discontinuation Price with respect to such Program shall be reduced by [ * ]% of the purchase price paid by Holdings in consideration for the purchase of all Non-IV Shares pursuant to the Stock and Warrant Purchase Agreement. If the Discontinuation Price is determined in accordance with Section 11.1(c11(b), then such [***the [ * ] ([ * ]) day period for the Company’s exercise of a Discontinuation Option shall 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 24b-2 of the Securities Exchange Act of 1934, as amended. extended by the time needed by the Experts for such determinationdetermination so that the Company has at least [ * ] ([ * ]) days after such determination to decide whether it wishes to exercise a Discontinuation Option. Following the unexercised expiration of a Discontinuation Option, the Symphony Collaboration may transfer or license its rights to such Program to a third party at any time. Any Discontinuation Price paid to the Symphony GenIsis under this Section 11.1(a) Collaboration by the Company and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions.
(b) Following If the expiration of Company and the Discontinuation Option without exercise by Isis, if Symphony GenIsis transfers or licenses such Program rights to a third party before the termination of the Term, all payments and other consideration that Holdings receives directly from such third party or that Symphony GenIsis receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. During the Term, under no circumstances may Symphony GenIsis or Isis (unless Isis has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued Program.
(c) If Isis and Symphony GenIsis Collaboration cannot agree on the Discontinuation Price within [ * ] ([ * ]) days after receipt of such written notice from the Symphony Collaboration of such discontinuation, then at the Company’s request, the Chief Executive Officer of the Company and the Symphony Chairman shall make good faith efforts to resolve the disagreement(s) regarding the calculation of the Discontinuation Price, with respect to Section 11.1(a), Isis . If the Chief Executive Officer of the Company and Symphony GenIsis Chairman do not agree on the Discontinuation Price within [ * ] ([ * ]) days after the Company’s request, then the Parties shall each appoint jointly select a nationally recognized expert in the field to resolve any remaining disagreements regarding calculation of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis and Symphony GenIsis in the preceding twelve (12) months), and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree on such Discontinuation Price as applicable, two (2) of such three (3) Experts shall jointly determine, the Discontinuation Price, which . The Parties shall use their respective commercially reasonable efforts to cause such expert to make its determination shall be made of the Discontinuation Price within thirty [ * ] (30[ * ]) days of the appointment accepting its selection. The expert’s determination of the third Expert andDiscontinuation Price shall, absent manifest error, shall be (i) binding and conclusive and (ii) the Discontinuation Price at which the a Discontinuation Option shall may be exercised by Isisthe Company. All costs and expenses incurred in appointing of the Experts expert shall be shared equally between Isis the Company and the Symphony GenIsisCollaboration. Notwithstanding the foregoing, in any case, each Party shall be responsible for the payment of its respective costs and expenses, including any attorneys’ fees.
(c) Upon the exercise of a Discontinuation Option for a Program, such Program shall no longer be a Program and the Products being developed in such Program shall no longer be Products for purposes of the Operative Documents, except to the extent the Operative Documents deal with the rights of the Company and the obligations of the Symphony Collaboration following exercise of a Discontinuation Option.
Appears in 1 contract
Discontinuation Option. (a) A Program may only be discontinued in accordance with Section 4.2(c). In the event of such a Program discontinuation during the Term, (i) Symphony GenIsis Icon shall so notify Isis Lexicon promptly and in writing of such discontinuation, and (ii) Isis Lexicon shall have the right and option (a “Discontinuation Option”), exercisable for [***] days after receipt of such written notice from Symphony GenIsis Icon of such discontinuation, to buy back the Licensed Intellectual Property related to such discontinued Program for a price (payable by wire transfer to Symphony GenIsisIcon) that is the sum of [**] (x) the funds expended on such discontinued Program and (y) a share of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures (sum, the “Discontinuation Price”), to be reasonably determined between the Parties, or, if the Parties are unable to come to a resolutionresolution within [**] after receipt of such written notice from Symphony Icon of such discontinuation, for a Discontinuation Price to be determined in accordance with Section 11.1(c11(b) hereof. If the Discontinuation Price is determined in accordance with Section 11.1(c11(b), then such the [***] day period for Lexicon’s exercise of a Discontinuation Option shall be extended by the time needed by the Experts for such determinationdetermination so that Lexicon has at least [**] after such determination to decide whether it wishes to exercise a Discontinuation Option. Following the unexercised expiration of a Discontinuation Option, Symphony Icon may transfer or license its rights to such Program to a third party at any time prior to the expiration of the Term. Under no circumstances may Symphony Icon or Lexicon (unless Lexicon has exercised its Discontinuation Option for such Program) reinitiate work on a discontinued Program prior to the expiration or termination of the Purchase Option. Any Discontinuation Price paid to Symphony GenIsis under this Section 11.1(a) Icon by Lexicon and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions.
(b) Following the expiration of the Discontinuation Option without exercise by Isis, if Symphony GenIsis transfers or licenses such Program rights to a third party before the termination of the Term, all payments and other consideration that Holdings receives directly from such third party or that Symphony GenIsis receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. During the Term, under no circumstances may Symphony GenIsis or Isis (unless Isis has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued Program.
(c) If Isis Lexicon and Symphony GenIsis Icon cannot agree on the Discontinuation Price within [**] after receipt of such written notice from Symphony Icon of such discontinuation, then at Lexicon’s request, the Chief Executive Officer of Lexicon and Chairman of the Symphony Icon Board shall make good faith efforts to resolve the disagreement(s) regarding the calculation of the Discontinuation Price. If the Chief Executive Officer of Lexicon and Chairman of the Symphony Icon Board do not agree on the Discontinuation Price within [**] after Lexicon’s request, with respect to Section 11.1(a), Isis and Symphony GenIsis then the Parties shall each appoint jointly select a nationally recognized expert in the field to resolve any remaining disagreements regarding calculation of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis and Symphony GenIsis in the preceding twelve (12) months), and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree on such Discontinuation Price as applicable, two (2) of such three (3) Experts shall jointly determine, the Discontinuation Price, which . The Parties shall use their respective commercially reasonable efforts to cause such expert to make its determination shall be made within thirty (30) days of the appointment Discontinuation Price within [**] of accepting its selection. The expert’s determination of the third Expert andDiscontinuation Price shall, absent manifest error, shall be (i) binding and conclusive and (ii) the Discontinuation Price at which the a Discontinuation Option shall be exercised by IsisLexicon. All costs and expenses incurred in appointing of the Experts expert shall be shared equally between Isis Lexicon and Symphony GenIsisIcon. Notwithstanding the foregoing, in any case, each Party shall be responsible for the payment of its respective costs and expenses, including any attorneys’ fees.
Appears in 1 contract
Samples: Research and Development Agreement (Lexicon Pharmaceuticals, Inc./De)
Discontinuation Option. (a) A Program may only be discontinued or abandoned in accordance with Section 4.2(c4.2(g). In the event of such a Program discontinuation or abandonment during the Term, (i) Symphony GenIsis Evolution shall so notify Isis Exelixis and GlaxoSmithKline promptly and in writing of such discontinuationdiscontinuance or abandonment, and (ii) Isis Exelixis shall have the right and option (a the “Discontinuation Option”), exercisable for [***[ * ] days after receipt of such written notice from Symphony GenIsis Evolution of such discontinuationdiscontinuance or abandonment, to buy back the Licensed Intellectual Property related to such discontinued or abandoned Program for a price (payable by wire transfer to Symphony GenIsis) that is the sum of (x) the funds expended on such discontinued Program and (y) a share of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures (the “Discontinuation Price”), ) to be reasonably determined between the Parties, or, if the Parties are unable to come to a resolution, for a Discontinuation Price determined in accordance with Section 11.1(c11.2(c) hereof. If the Discontinuation Price is determined in accordance with Section 11.1(c11.2(c), then such [***[ * ] day period shall be extended by the time needed by the Experts for such determination. Any Discontinuation Price paid to Symphony GenIsis under this Section 11.1(a11.2(a) and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributionspayment.
(b) Following the expiration of the Discontinuation Option without exercise by IsisExelixis, if Symphony GenIsis Evolution proposes to transfer or license the discontinued Program to a third party, then (i) Symphony Evolution shall so notify GlaxoSmithKline (with a copy to Exelixis) of its intention promptly and in writing, and (ii) GlaxoSmithKline shall have, for a period of [ * ] after receipt of such written notice, the exclusive right to negotiate with Symphony Evolution for the acquisition or the license of the rights to such discontinued or abandoned Program. At GlaxoSmithKline’s request, Symphony Evolution shall negotiate in good faith with GlaxoSmithKline the terms of such acquisition or license and upon any agreement of terms, shall enter into a binding agreement setting forth such terms. Following such [ * ] period, Symphony Evolution may transfer or license such rights relating to such discontinued or abandoned Program to any third party. If Symphony Evolution so transfers or licenses such Program rights to a third party before the termination of the Term, all payments and other consideration that Holdings receives directly from such third party or amounts that Symphony GenIsis Evolution receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributionspayment. During the Term, under no circumstances may Symphony GenIsis Evolution or Isis Exelixis (unless Isis Exelixis has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued or abandoned Program. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(c) If Isis Exelixis and Symphony GenIsis Evolution cannot agree on the Discontinuation Price, with respect to Section 11.1(a11.2(a), Isis Exelixis and Symphony GenIsis Evolution shall each appoint a nationally recognized expert in the field of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis Exelixis and Symphony GenIsis Evolution in the preceding twelve (12) months), and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c11.2(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree on such Discontinuation Price as applicable, two (2) of such three (3) Experts shall jointly determine, the Discontinuation Price, which determination shall be made within thirty (30) days [ * ] of the appointment of the third Expert and, absent manifest error, shall be (i) binding and conclusive and (ii) the Discontinuation Price at which the Discontinuation Option shall be exercised by IsisExelixis. All costs and expenses incurred in appointing the Experts shall be shared equally between Isis Exelixis and Symphony GenIsisEvolution.
Appears in 1 contract
Discontinuation Option. (a) A Program may only be discontinued in accordance with Section 4.2(c)) hereof. In the event of such a Program discontinuation during the Term, (i) Symphony GenIsis Dynamo shall so notify Isis Dynavax promptly and in writing of such discontinuation, and (ii) Isis Dynavax shall have the right and option (a “Discontinuation Option”), exercisable for [***[ * ] days after receipt of such written notice from Symphony GenIsis of such discontinuationDynamo, to buy back the Licensed Intellectual Property related to such discontinued Program for a price (payable by wire transfer to Symphony GenIsis) that is deferred purchase price, the sum payment of (x) which shall be contingent upon the funds expended on such discontinued Program and (y) a share termination or unexercised expiration of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures Purchase Option (the “Discontinuation Price”), to be reasonably determined between the Parties, or. The Discontinuation Price, if any, [ * ], and [ * ]. Following the Parties are unable unexercised expiration of the Discontinuation Option, Symphony Dynamo may transfer or license its rights to come such Program to a resolution, for a Discontinuation Price determined in accordance with Section 11.1(c) hereof. If the Discontinuation Price is determined in accordance with Section 11.1(c), then such [***] day period shall be extended by the third party at any time needed by the Experts for such determination. Any Discontinuation Price paid prior to Symphony GenIsis under this Section 11.1(a) and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions.
(b) Following the expiration of the Discontinuation Option without exercise by Isis, if Symphony GenIsis transfers or licenses such Program rights to a third party before the termination of the Term, all payments and other consideration that Holdings receives directly from such third party or that Symphony GenIsis receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. During the Term, under Under no circumstances may Symphony GenIsis Dynamo or Isis Dynavax (unless Isis Dynavax has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued Program. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(b) In the event that, following the Discontinuation Closing Date, either Party objects to the calculation of the portion of the Committed Capital expended on the development of the Program subject to the Discontinuation Option as used to determine the final Discontinuation Price (the “Discontinuation Program Funding”), then, within [ * ] of the Discontinuation Closing Date, such objecting Party shall provide written notice to the other Party (a “Discontinuation Price Dispute Notice”) specifying the amount disputed and the basis for the dispute, together with supporting documentation reflecting the analysis of and justification for any re-computation made. In the event that a Discontinuation Price Dispute Notice is issued by either Party, such dispute shall be resolved in accordance with the terms of Section 11.3(c). The Discontinuation Price shall be final, binding and conclusive, shall be non-appealable and shall not be subject to further review if the disputing Party does not deliver a Discontinuation Price Dispute Notice within such [ * ] period. For the avoidance of doubt, nothing in this Section 11.3(b) shall restrict or delay the Parties’ performance of those activities identified in this Agreement or the Novated and Restated Technology License Agreement as taking place following the exercise of the Discontinuation Option.
(c) In the event that either Party delivers to the other a Discontinuation Price Dispute Notice within the time limit set forth in Section 11.3(b), then both Parties shall make good faith efforts to resolve any dispute relating to the calculation of the Discontinuation Program Funding through negotiations for a period of [ * ] following the date on which a Discontinuation Price Dispute Notice is delivered. If Isis and Symphony GenIsis cannot the Parties agree on the calculation of the Discontinuation Program Funding (or a revision thereto) before or within such [ * ] period, and (x) the recalculated Discontinuation Program Funding results in a recalculated Discontinuation Price (including as revised through negotiations) that is less than the Discontinuation Price paid on the Discontinuation Closing Date, then Symphony Dynamo shall promptly, and in any event within [ * ] of the date on which the Discontinuation Price recalculation becomes final, pay to Dynavax the amount by which the recalculated Discontinuation Price is less than Discontinuation Price paid on the Discontinuation Closing Date, or (y) the recalculated Discontinuation Program Funding results in a recalculated Discontinuation Price (including as revised through negotiations) that is greater than the Discontinuation Price paid on the Discontinuation Closing Date, then Dynavax shall promptly, and in any event within [ * ] of the date on which the recalculated Discontinuation Price becomes final, pay to Symphony Dynamo the amount by which the recalculated Discontinuation Price is greater than the Discontinuation Price paid on the Discontinuation Closing Date. In the event that neither of the conditions set forth in the previous clauses (x) and (y) exist, then no payment shall be made. To the extent that any matter remains unresolved following negotiations during such [ * ] period (as determined by notice by any Party to the other Party), the Parties shall jointly select an independent accountant of recognized national standing to resolve any remaining disagreements, which independent accountant shall not have provided services to either of the Parties or any of their respective Affiliates during the five-year period preceding the date of its selection (the “Independent Accountant”). The Parties shall use their respective commercially reasonable efforts to cause such Independent Accountant to make its determination of the Discontinuation Price (the “Final Discontinuation Price”) within [ * ] days of accepting its selection. The decision of the Independent Accountant shall be a final, binding and conclusive resolution of the Parties’ dispute, shall be non-appealable and shall not be subject to further review. The costs and expenses of the Independent Accountant shall be split between the Parties equally. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Notwithstanding the foregoing, in any case, each Party shall be responsible for the payment of its respective costs and expenses, including any attorneys’ and accountants’ fees (other than any accountants’ fees payable to the Independent Accountant) incurred in connection with the dispute. If the Final Discontinuation Price is less than the Discontinuation Price paid on the Discontinuation Closing Date, then Symphony Dynamo shall promptly, and in any event within [ * ] of the date on which the Independent Accountant makes its determination of the Final Discontinuation Price, with respect pay to Section 11.1(a)Dynavax the amount by which the Final Discontinuation Price is less than the Discontinuation Price paid on the Discontinuation Closing Date. If the Final Discontinuation Price is greater than the Discontinuation Price paid on the Discontinuation Closing Date, Isis and Symphony GenIsis then Dynavax shall each appoint a nationally recognized expert in the field of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis and Symphony GenIsis in the preceding twelve (12) months)promptly, and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree in any event within [ * ] of the date on such Discontinuation Price as applicable, two (2) which the Independent Accountant makes its determination of such three (3) Experts shall jointly determine, the Final Discontinuation Price, pay to Symphony Dynamo the amount by which determination shall be made within thirty (30) days of the appointment of the third Expert and, absent manifest error, shall be (i) binding and conclusive and (ii) Final Discontinuation Price is greater than the Discontinuation Price at which paid on the Discontinuation Option Closing Date. In the event that neither of the conditions set forth in the previous two sentences exist, then no payment shall be exercised by Isis. All costs and expenses incurred in appointing the Experts shall be shared equally between Isis and Symphony GenIsismade.
Appears in 1 contract
Samples: Research and Development Agreement (Dynavax Technologies Corp)
Discontinuation Option. (a) A Program may only be discontinued in accordance with Section 4.2(c). In the event of such a Program discontinuation during the Term, (i) Symphony GenIsis Holdings shall so notify Isis the Company promptly and in writing of such discontinuation, and (ii) Isis the Company shall have the right and option (a “Discontinuation Option”), exercisable for [***[ * ] ([ * ]) days after receipt of such written notice from Symphony GenIsis Holdings of such discontinuation, to buy back all rights of Holdings to such discontinued Program, the Products being developed in such discontinued Program, and the Licensed Intellectual Property related to such discontinued Program for a price (payable by wire transfer to Symphony GenIsisHoldings) that is [ * ]% of the sum of (x) the funds expended on such discontinued Program and (y) a share of all non-Program-specific expenditures that is in the same proportion to the total of all non-Program-specific expenditures as the amount in clause (x) of this sentence is to the aggregate of all Program-specific expenditures (such sum, the “Discontinuation Price”), to be reasonably determined between the Parties, or, if the Parties are unable to come to a resolutionresolution within [ * ] ([ * ]) days after receipt of such written notice from Holdings of such discontinuation, for a Discontinuation Price to be determined in accordance with Section 11.1(c11(b) hereof; provided, that if the Ophthalmology Program is discontinued, the Discontinuation Price with respect to such Program shall be reduced by [ * ]% of the purchase price paid by Holdings in consideration for the purchase of all Non-IV Shares pursuant to the Stock and Warrant Purchase Agreement. If the Discontinuation Price is determined in accordance with Section 11.1(c11(b), then such [***the [ * ] ([ * ]) day period for the Company’s exercise of a Discontinuation Option shall be extended by the time needed by Portions of this Exhibit were omitted and have been filed separately with the Experts Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. for such determination. Any determination so that the Company has at least [ * ] ([ * ]) days after such determination to decide whether it wishes to exercise a Discontinuation Price paid to Symphony GenIsis under this Section 11.1(a) and subsequently dividended or otherwise distributed to Holdings shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributionsOption.
(b) Following If the expiration of the Discontinuation Option without exercise by Isis, if Symphony GenIsis transfers or licenses such Program rights to a third party before the termination of the Term, all payments Company and other consideration that Holdings receives directly from such third party or that Symphony GenIsis receives from such third party in connection with such transfer or license prior to the termination of the Term, and subsequently dividends or otherwise distributes to Holdings, shall reduce the Purchase Option Exercise Price in the amount of such dividends or other distributions. During the Term, under no circumstances may Symphony GenIsis or Isis (unless Isis has exercised a Discontinuation Option in respect of such Program) reinitiate work on a discontinued Program.
(c) If Isis and Symphony GenIsis cannot agree on the Discontinuation Price within [ * ] ([ * ]) days after receipt of such written notice from Holdings of such discontinuation, then at the Company’s request, the Chief Executive Officer of the Company and the Manager shall make good faith efforts to resolve the disagreement(s) regarding the calculation of the Discontinuation Price. If the Chief Executive Officer of the Company and the Manager do not agree on the Discontinuation Price within [ * ] ([ * ]) days after the Company’s request, with respect to Section 11.1(a), Isis and Symphony GenIsis then the Parties shall each appoint jointly select a nationally recognized expert in the field to resolve any remaining disagreements regarding calculation of pharmaceutical technology and licensing (each, an “Expert”) (that, in each case, has had no prior dealings with either of Isis and Symphony GenIsis in the preceding twelve (12) months), and such two (2) Experts shall appoint a third Expert. In accordance with this Section 11.1(c), such three (3) Experts shall jointly determine, or, if all three (3) Experts shall not be able to agree on such Discontinuation Price as applicable, two (2) of such three (3) Experts shall jointly determine, the Discontinuation Price, which . The Parties shall use their respective commercially reasonable efforts to cause such expert to make its determination shall be made of the Discontinuation Price within thirty [ * ] (30[ * ]) days of the appointment accepting its selection. The expert’s determination of the third Expert andDiscontinuation Price shall, absent manifest error, shall be (i) binding and conclusive and (ii) the Discontinuation Price at which the a Discontinuation Option shall may be exercised by Isisthe Company. All costs and expenses incurred in appointing of the Experts expert shall be shared equally between Isis the Company and Symphony GenIsisHoldings. Notwithstanding the foregoing, in any case, each Party shall be responsible for the payment of its respective costs and expenses, including any attorneys’ fees.
(c) Upon the exercise of a Discontinuation Option for a Program, such Program shall no longer be a Program and the Products being developed in such Program shall no longer be Products for purposes of the Operative Documents, except to the extent the Operative Documents deal with the rights of the Company and the obligations of Holdings following exercise of a Discontinuation Option..
Appears in 1 contract
