Common use of Effect of Termination for Cause on License Clause in Contracts

Effect of Termination for Cause on License. (a) In the event MERCK terminates this Agreement under Section 9.3.1(a), MERCK's licenses pursuant to Sections 3.1 and 3.2 shall become perpetual licenses. It is understood that in the event MERCK contends it suffers damages as a result of the breach, MERCK may place a portion of the payments to be made by MERCK pursuant to Article 5 that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of any dispute between the parties relating to the material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6. In the event that ISIS terminates this Agreement under Section 9.3.1(a), MERCK's licenses pursuant to Sections 3.1 and 3.2 shall terminate as of such termination date. (b) In the event this Agreement is terminated by MERCK under Section 9.3.1(b) or due to the rejection of this Agreement by or on behalf of ISIS under Section 365 of the United States Bankruptcy Code (the "Code"), all licenses and rights to licenses granted under or pursuant to this Agreement by ISIS to MERCK are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to "intellectual property" as defined under Section 101(35A) of the Code. The parties agree that MERCK, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against ISIS under the Code, MERCK shall be entitled to a complete duplicate of or complete access to (as MERCK deems appropriate), any such intellectual property and all embodiments of such intellectual property. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCK, unless ISIS elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS upon written request therefore by MERCK. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is without prejudice to any rights MERCK may have arising under the Code or other applicable law.

Effect of Termination for Cause on License. (a) In the event MERCK that Merck terminates this Agreement under Section 9.3.1(a8.3.1(a), MERCKMerck's licenses pursuant to Sections 3.1 and 3.2 this Agreement shall become perpetual licenses, and Isis shall, within one month from such termination, return or cause to be returned to Merck all substances or compositions delivered or provided by Merck hereunder, as well as any other materials provided by Merck. It is understood that in the event MERCK Merck contends it suffers damages as a result of the breach, MERCK Merck may place a portion of the payments to be made by MERCK Merck pursuant to Article 5 that would reasonably cover MERCKMerck's alleged damages damages, into an interest-bearing escrow account pending resolution of any dispute between the parties relating to the material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6. In the event that ISIS terminates this Agreement under Section 9.3.1(a), MERCK's licenses pursuant to Sections 3.1 and 3.2 shall terminate as of such termination date9.6. (b) In the event that Isis terminates this Agreement under Section 8.3.1(a), Merck's exclusive licenses set forth under Article 3 will terminate and become non-exclusive. Merck shall pay to Isis fifty percent (50%) of the royalty payments set forth in Article 5. No milestone payments will be due from Merck. (c) In the event Merck terminates this Agreement under Section 8.3.1(b) or this Agreement is otherwise terminated by MERCK under Section 9.3.1(b) or due to the rejection of this Agreement by or on behalf of ISIS under Section 365 of the United States Bankruptcy Code (the "Code"8.3.1(b), all licenses rights and rights to licenses granted under or pursuant to this Agreement by ISIS to MERCK are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to "intellectual property" as defined under Section 101(35A) of the Bankruptcy Code. The parties Parties agree that MERCKMerck, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The Parties further agree that, and that upon in the event of the commencement of a bankruptcy proceeding by or against ISIS Isis under the Bankruptcy Code, MERCK Merck shall be entitled to a complete duplicate of (or complete access to (to, as MERCK deems appropriate), ) any such intellectual property and all embodiments of such intellectual propertyproperty upon written request therefore by Merck. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK Merck (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCKMerck, unless ISIS Isis elects to continue to perform all of its respective obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS Isis, as the case may be, upon written request therefore therefor by MERCK. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is without prejudice to any rights MERCK may have arising under the Code or other applicable lawMerck.

Effect of Termination for Cause on License. (a) In the event MERCK If Merck terminates this Agreement under Section 9.3.1(a), MERCK's Merck’s licenses pursuant to Sections 3.1 and 3.2 shall become perpetual licensescontinue in effect, provided that Merck’s obligations to pay milestones and royalties under Section 5.4 hereof shall be reduced by [*]. It is understood that in In such case, Genetronics shall, within thirty (30) days after the event MERCK contends it suffers damages as a result effective date of the breachsuch termination, MERCK may place a portion of the payments return or cause to be made returned to Merck all Materials (including Target Antigens), Merck Products, all Confidential Information of Merck in tangible form, and all substances or compositions delivered or provided by MERCK pursuant to Article 5 that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of Merck, as well as any dispute between the parties relating to the other material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6provided by Merck in any medium. In the event that ISIS If Genetronics terminates this Agreement under Section 9.3.1(a), MERCK's Merck’s licenses pursuant to Sections 3.1 and 3.2 shall terminate as of such termination datedate and Merck shall, within thirty (30) days after the effective date of such termination, return or cause to be returned to Genetronics all Genetronics Devices, all Confidential Information of Genetronics in tangible form, and all substances or compositions delivered or provided by Genetronics, as well as any other material provided by Genetronics in any medium. (b) In the event If this Agreement is terminated by MERCK under Merck pursuant to Section 9.3.1(b) or due to the rejection of this Agreement by or on behalf of ISIS Genetronics under Section 365 of the United States Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (the "“Code"”), all licenses and rights to licenses granted under or pursuant to this Agreement by ISIS Genetronics to MERCK Merck are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to "“intellectual property" ” as defined under Section 101(35A) of the Code. The parties Parties agree that MERCKMerck, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against ISIS Genetronics under the Code, MERCK Merck shall be entitled to a complete duplicate of of, or complete access to (as MERCK Merck deems appropriate), any such intellectual property and all embodiments of such intellectual property. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK Merck (i) upon any such commencement of a bankruptcy proceeding upon written request therefore therefor by MERCKMerck, unless ISIS Genetronics elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS Genetronics upon written request therefore therefor by MERCKMerck. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is provisions of Section 9.3.2(b) are without prejudice to any rights MERCK Merck may have arising under the Code or other applicable law.

Effect of Termination for Cause on License. (a) In the event MERCK terminates this Agreement under Section 9.3.1(a)8.3.1 (a) due to material breach by NEOGENESIS then, in addition to any other remedies available to MERCK at law or equity, MERCK's licenses pursuant to Sections 3.1 and 3.2 shall become perpetual licenseslicenses and the milestone and/or royalty payment[s] to be paid by MERCK, if any, shall be determined by the arbitrators. It is understood that in the event NEOGENESIS shall, within thirty (30) days after such termination return or cause to be returned to MERCK contends it suffers damages as a result of the breachall Compounds, Materials, MERCK may place a portion of the payments to be made Proprietary Information and MERCK Know-How in NEOGENESIS's possession, as well as any other material provided by MERCK pursuant to Article 5 that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of in any dispute between the parties relating to the material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6medium. In the event that ISIS NEOGENESIS terminates this Agreement under Section 9.3.1(a8.3.1(a), MERCK's licenses pursuant to Sections Section 3.1 and 3.2 shall terminate as of such termination datedate and MERCK shall, within thirty (30) days after such termination, return or cause to be returned to NEOGENESIS all NEOGENESIS Proprietary Information. (b) In the event that MERCK terminates this Agreement under Section 8.3.1 (b) or this Agreement is terminated by MERCK under Section 9.3.1(b) or due to the rejection of this Agreement by or on behalf of ISIS NEOGENESIS under Section 365 of the United States Bankruptcy Code (the "Code"), all licenses and rights to licenses granted under or pursuant to this Agreement by ISIS NEOGENESIS to MERCK are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to "intellectual property" as defined under Section 101(35A) of the Code. The parties agree that MERCK, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against ISIS NEOGENESIS under the Code, MERCK shall be entitled to a complete duplicate of or complete access to (as MERCK deems appropriate), any such intellectual property and all embodiments of such intellectual property. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCK, unless ISIS NEOGENESIS elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS NEOGENESIS upon written request therefore by MERCK. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. *Confidential Treatment Requested 20 The foregoing is without prejudice to any rights MERCK may have arising under the Code or other applicable law.

Effect of Termination for Cause on License. (a) In the event MERCK If Merck terminates this Agreement under Section 9.3.1(a), MERCK's licenses pursuant to Sections 3.1 and 3.2 shall become perpetual licenses. It is understood that in the event MERCK contends it suffers damages as a result of the breach, MERCK may place a portion of the payments to be made by MERCK pursuant to Article 5 that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of any dispute between the parties relating to the material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6. In the event that ISIS terminates this Agreement under Section 9.3.1(a), MERCK's licenses pursuant to Sections 3.1 and 3.2 shall terminate as of such termination date8.3.1(a): *. (b) In the event If Avalon terminates this Agreement under subsection 8.3.1(a): *. (c) If this Agreement is terminated by MERCK under Section 9.3.1(bMerck pursuant to subsection 8.4.1(b) or due to the rejection of this Agreement by or on behalf of ISIS Avalon under Section 365 of the United States Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (the "“Code"”), all licenses and rights to licenses granted under or pursuant to this Agreement by ISIS Avalon to MERCK Merck are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to "“intellectual property" ” as defined under Section 101(35A) of the Code. The parties Parties agree that MERCKMerck, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against ISIS Avalon under the Code, MERCK Merck shall be entitled to a complete duplicate of or complete access to (as MERCK Merck deems appropriate), any such intellectual property and all embodiments of such intellectual property. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK Merck (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCKMerck, unless ISIS Avalon elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS Avalon upon written request therefore by MERCKMerck. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 The foregoing provisions of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is Section 8.3.2(c) are without prejudice to any rights MERCK Merck may have arising under the Code or other applicable law. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.

Effect of Termination for Cause on License. (a) In the event MERCK terminates that either Transcell or Interneuron breaches its material obligations hereunder and Merck notifies Transcell and Interneuron of the termination of this Agreement under Section 9.3.1(a)8.3.1(a) or initiates arbitration against Transcell or Interneuron for breach of this Agreement pursuant to Section 9.6, MERCKor both, any milestone or royalty payments that Merck may be required to pay pursuant to this Agreement and that are not subject to Section 8.4 shall be paid by Merck instead into an escrow account pending the resolution of the arbitration or other agreement of the Parties. If the arbitrators determine that Merck had the right to terminate this Agreement under Section 8.3.1(a) due to a breach of material obligations by Transcell or Interneuron which was not cured as set forth therein, Merck's licenses pursuant to Sections 3.1 and 3.2 this Agreement shall become perpetual licenses. It is understood that in , and the event MERCK contends it suffers damages as a result of the breach, MERCK may place a portion of the payments royalty to be made paid by MERCK pursuant to Article 5 that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of any dispute between Merck, if any, shall be determined by the parties relating to the material breach or termination of the agreement, including a dispute over damages, pursuant to paragraph 10.6arbitrators. In the event that ISIS terminates this Agreement under Section 9.3.1(a)addition, MERCK's licenses pursuant Licensors shall, within one month from such determination, return or cause to Sections 3.1 and 3.2 shall terminate be returned to Merck all Licensed Products, Compounds, Know-How or other substances or composition, delivered or provided by Merck, as of such termination datewell as any other materials and/or documents provided by Merck in any medium. (b) In the event this Agreement is terminated by MERCK under Section 9.3.1(b) or due to that Merck breaches its material obligations hereunder and Licensors notify Merck of the rejection termination of this Agreement by or on behalf of ISIS under Section 365 8.3.1(a) or initiate arbitration against Merck for breach of the United States Bankruptcy Code (the "Code")this Agreement pursuant to Section 9.6, all licenses and rights or both, Merck shall continue to licenses granted under pay to Transcell any milestone or royalty payments that Merck may be required to pay pursuant to this Agreement pending the resolution of the arbitration or other agreement of the Parties. If the arbitrators determine that Licensors had the right to terminate this Agreement under Section 8.3.1(a) due to a breach of material obligations by ISIS Merck which was not cured as set forth therein, Licensors shall be entitled to MERCK The information below marked by * and [ ] has been omitted pursuant to a request for confidential treatment. The omitted portion has been separately filed with the Commission. -------------------------------------------------------------------------------- any payments then due or owing under this Agreement and Merck shall have no further rights with respect to Transcell Intellectual Property or Interneuron Intellectual Property. Merck shall, within one month from such determination, return or cause to be returned to Licensors all Licensed Products, Compounds, Know-How or other substances or composition, delivered or provided by Licensors, as well as any other materials and/or documents provided by Licensors in any medium. (c) In the event Merck terminates this Agreement under Section 8.3.1(b) or this Agreement is otherwise terminated under 8.3.1(b), all rights and licenses granted pursuant to this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to "intellectual property" as defined under Section 101(35A) of the Bankruptcy Code. The parties Parties agree that MERCKMerck, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The Parties further agree that, and that upon in the event of the commencement of a bankruptcy proceeding by or against ISIS Transcell or Interneuron under the Bankruptcy Code, MERCK Merck shall be entitled to a complete duplicate of (or complete access to (to, as MERCK deems appropriate), ) any such intellectual property and all embodiments of such intellectual propertyproperty upon written request therefore by Merck. Such intellectual property and all embodiments thereof shall be promptly delivered to MERCK Merck (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCKMerck, unless ISIS elects Transcell and Interneuron elect to continue to perform all of its their respective obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS Transcell or Interneuron, as the case may be, upon written request therefore therefor by MERCK. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is without prejudice to any rights MERCK may have arising under the Code or other applicable lawMerck.

Effect of Termination for Cause on License. (a) In the event MERCK If Merck terminates this Agreement under Section 9.3.1(a8.3.1(a) or (b), MERCK's then in addition to any other remedies available to Merck at law or in equity: (i) Merck retains the exclusive right to access the TALON Registry (and the Biological Samples and Data contained therein), for any purpose, including to support regulatory filings, and to the extent [ * ] the TALON Registry or any portion of the Prospective Registry or the CPCS Samples and Data, FHT shall [ * ] such [ * ] to Merck in accordance with Merck’s instructions; (ii) Merck’s licenses pursuant to Sections 3.1 and 3.2 3.1.4 shall become perpetual licenses. It is understood that , subject to continued payment of milestones and royalties thereon as provided in Article 5; provided that, Merck may reduce milestone and/or royalty obligations by the event MERCK contends it suffers amount of the monetary damages suffered by Merck as a result of the breach, MERCK may place a portion material breach of this Agreement by FHT to the payments to be made by MERCK extent those damages have been determined pursuant to Article 5 Section 9.7, and provided, further, that would reasonably cover MERCK's alleged damages into an interest-bearing escrow account pending resolution of any dispute between the parties relating to the if such grounds for termination is a material breach or termination of the agreementFHT’s [ * ] , including a dispute over damages, pursuant to paragraph 10.6. In the event that ISIS terminates this Agreement under Section 9.3.1(a), MERCK's Merck’s licenses pursuant to Sections 3.1 and 3.1.4 shall become perpetual exclusive licenses, without payment of any fees as provided in Section 5.7.1 or 5.9, and Merck shall only be obligated to pay FHT milestones and royalties following the effective date of such termination at a rate which is [ * ] of the rate that would otherwise be payable pursuant to Article 5 if this Agreement had not been so terminated with respect to either Products and/or Tests; (iii) Merck’s obligations under the Collaboration Program and under Section 2.4.6 shall terminate; (iv) FHT’s licenses pursuant to Section 3.2 from Merck shall terminate, and Merck will have no obligations under Section 5.4.2; (v) FHT shall, within thirty (30) days after the effective date of such termination shall return or cause to be returned to Merck all Information in tangible form, as well as any Excluded Merck Compound Rights; and (vi) except as specified in this Section 8.3.2(a) and the surviving obligations specified in Section 8.4, all rights and obligations under this Agreement shall terminate as of such termination date. [ * ] = 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 ON THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (b) In If FHT terminates this Agreement under Section 8.3.1(a) or (b), then in addition to any other remedies available to FHT at law or in equity: (i) Merck’s licenses pursuant to Sections 3.1 and 3.1.4 shall terminate as of such termination date, and Merck’s exclusive access to the event TALON Registry (and any Biological Samples and Data contained therein) shall terminate; (ii) FHT’s licenses pursuant to Sections 3.2.2 shall survive and become perpetual licenses; (iii) FHT’s obligations under the Collaboration Program shall terminate; (iv) Merck shall, within thirty (30) days after the effective date of such termination return or cause to be returned to FHT all Information in tangible form; and (v) except as specified in this Section 8.3(b), and the surviving obligations specified in Section 8.4, all rights and obligations under this Agreement shall terminate as of such termination date. If this Agreement is terminated by MERCK under Merck pursuant to Section 9.3.1(b8.3.1(b) or due to the rejection of this Agreement by or on behalf of ISIS FHT under Section 365 of the United States Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (the "“Code"”), all licenses and rights to licenses granted under or pursuant to this Agreement by ISIS FHT to MERCK Merck are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Code, licenses of rights to "“intellectual property" ” as defined under Section 101(35A) of the Code. The parties Parties agree that MERCKMerck, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against ISIS FHT under the Code, MERCK Merck shall be entitled to a complete duplicate of or complete access to (as MERCK deems appropriate)[ * ] , any such intellectual property [ * ] and all embodiments of such intellectual property[ * ] . Such intellectual property and all embodiments thereof [ * ] shall be promptly delivered to MERCK Merck (i) upon any such commencement of a bankruptcy proceeding upon written request therefore by MERCKMerck, unless ISIS FHT elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of ISIS FHT upon written request therefore by MERCKMerck. Where MERCK does retain and is able to fully exercise all licenses and rights to licenses granted under this Agreement, MERCK's payment obligations to ISIS for milestones and royalties in accordance with Section 5.3 and/or Section 5.4 of this Agreement in connection with such exercise by MERCK of MERCK's licenses hereunder shall continue in effect. *Confidential Treatment Requested 20 The foregoing is provisions of Section 8.3.2 are without prejudice to any rights MERCK Merck may have arising under the Code or other applicable law.