Common use of Failure to Use Commercially Reasonable Efforts Clause in Contracts

Failure to Use Commercially Reasonable Efforts. Subject to Section 13.2.4 below, BMS shall have the right to terminate this Agreement on a country-by-country basis (except as otherwise set forth in this Section 13.2.3), at BMS’ sole discretion, in the event that Elixir fails to use Commercially Reasonable Efforts to Develop and/or Commercialize at * Confidential Treatment Requested least one Licensed Compound and Licensed Product in the Territory (in breach of Section 5.1(a) or Section 6.1), provided that Elixir has not exercised such Commercially Reasonable Efforts in the applicable country or countries within three (3) months following written notice by BMS to Elixir specifying the nature of such failure. Termination under this Section 13.2.3 shall apply to all Licensed Compounds and Licensed Products, but only for the affected country or countries, provided however, that (i) if the applicable termination event relates to a Major Market Country in the EU, then the termination shall apply to all countries in Europe, (ii) if the applicable termination event relates to Elixir’s Development efforts in any Major Market Country excluding Japan, then the termination shall apply to all countries in the Territory, and (iii) if the applicable termination event relates to Elixir’s Commercialization efforts in all the Major Market Countries excluding Japan, then the termination shall apply to all countries in the Territory. Notwithstanding the foregoing, if the applicable termination event relates to a breach of Section 5.1(a) or Section 6.1 in a country in the EU that is not a Major Market Country, then BMS shall not have the right to terminate this Agreement with respect to such country if Elixir is in compliance with such provisions with respect to all Major Market Countries plus five (5) additional countries in the EU. For clarity, it is understood and acknowledged that to the extent Elixir uses Commercially Reasonable Efforts (by itself or through its Affiliates or Sublicensees) to Develop at least one Licensed Product through a centralized filing with the EMEA, Elixir shall be in compliance with Section 5.1(a) with respect to all countries in the EU.

Failure to Use Commercially Reasonable Efforts. Subject to Section 13.2.4 13.2.5 below, BMS shall have the right to terminate this Agreement with respect to any or all licenses granted to Ambit pursuant to Article 2 of this Agreement and any or all rights granted under Section 2.1.3 on a country-by-country basis (except as otherwise set forth in this Section 13.2.3), at BMS’ sole discretion, in the event that Elixir Ambit fails to use Commercially Reasonable Efforts (by itself or through its Affiliates or Sublicensees) to Develop and/or and Commercialize at * Confidential Treatment Requested least one Licensed Compound and Licensed Product in the Territory (in breach of Section 5.1(a) or Section 6.1)Product, provided that Elixir Ambit has not exercised such Commercially Reasonable Efforts in the applicable country or countries within three (3) months […***…] following written notice by BMS to Elixir specifying the nature of such failure. BMS. (a) Termination under this Section 13.2.3 shall apply to all Licensed Compounds and Licensed Products, but only for the affected country or countries, provided however, that (i) if the applicable termination event relates to a breach of Section 5.1(a) or Section 6.1 in a country, then BMS shall not have the right to terminate this Agreement with respect to such country if Ambit is in compliance with such provisions with respect to the United States and four other Major Market Country in the EUCountries, then the termination shall apply to all countries in Europe, and (ii) if the applicable termination event relates to Elixir’s Development efforts in any Major Market Country excluding Japan, then the termination shall apply to all countries in the Territory, and (iii) if the applicable termination event relates to Elixir’s Commercialization efforts in all the Major Market Countries excluding Japan, then the termination shall apply to all countries in the Territory. Notwithstanding the foregoing, if the applicable termination event relates to a breach of Section 5.1(a) or Section 6.1 in a country in the EU that is not a Major Market CountryEU, then BMS shall not have the right to terminate this Agreement with respect to such country if Elixir Ambit is in compliance with such provisions with respect to all three Major Market Countries plus five (5) additional countries in the EU. . (b) For clarity, it is understood and acknowledged that to the extent Elixir Ambit uses Commercially Reasonable Efforts (by itself or through its Affiliates or Sublicensees) to Develop at least one Licensed Product through a centralized filing with the EMEAan MAA Filing, Elixir Ambit shall be in compliance with Section 5.1(a) with respect to all countries in the EU. For further clarity, it is understood and acknowledged that Commercially Reasonable Efforts in the Development of a Licensed Product in a particular country may include sequential implementation of clinical trials and/or intervals between clinical trials for data interpretation and clinical program planning, to the extent such implementation is consistent with the scientific, technical and commercial factors relevant to Development of such Licensed Product in such country. Accordingly, and for further clarity, it is understood and acknowledged that Commercially Reasonable Efforts may include the sequential Commercialization of the Licensed Product in the Major Market Countries.

Failure to Use Commercially Reasonable Efforts. Subject to Section 13.2.4 below, BMS shall have the right to terminate this Agreement on a country-by-country basis (except as otherwise set forth in this Section 13.2.3), at BMS’ sole discretion, in the event that Elixir Sunesis fails to use (by itself or through its Affiliates, Sublicensees, contractors or agents) Commercially Reasonable Efforts to Develop and/or Commercialize at * Confidential Treatment Requested least one Licensed Compound and or Licensed Product in the Territory (in breach of Section 5.1(a) or Section 6.1), provided that Elixir Sunesis has not exercised such Commercially Reasonable Efforts in the applicable country or countries within three (3) months following written notice by BMS to Elixir Sunesis specifying the nature of such failure. . (a) Termination under this Section 13.2.3 shall apply to all Licensed Compounds and Licensed Products, but only for the affected country or countries, provided however, that (i) if the applicable termination event relates to a breach of Section 5.1(a) or Section 6.1 in any Major Market Country in the EU, then the termination shall apply to all countries in Europe, ; (ii) if the applicable termination event relates to Elixir’s Development efforts a breach of Section 5.1(a) in any Major Market Country excluding Japanthe United States, then the termination shall apply to all countries in the Territory, and ; (iii) if the applicable termination event relates to Elixir’s Commercialization efforts a breach of Section 6.1 in the United States, then the termination shall apply to all countries in North America; and (iv) if the applicable termination event relates to a breach of Section 6.1 in all the Major Market Countries excluding Japan, then the termination shall apply to all countries in the Territory. Notwithstanding the foregoing, if the applicable termination event relates to a breach of Section 5.1(a) or Section 6.1 in in: (i) a country in the EU that is not a Major Market Country, then BMS shall not have the right to terminate this Agreement with respect to such country if Elixir Sunesis is in compliance with such provisions with respect to all Major Market Countries plus five (5) [*] additional countries in the EU. ; and (ii) a country within Caribbean and Central America, then BMS shall not have the right to terminate this Agreement with respect to such country if Sunesis is in compliance with such provisions with respect to all countries within North America. (b) For clarity, it is understood and acknowledged that to the extent Elixir Sunesis uses Commercially Reasonable Efforts (by itself or through its Affiliates Affiliates, Sublicensees, contractors or Sublicenseesagents) to Develop at least one Licensed Product through a centralized filing with the EMEA, Elixir Sunesis shall be in compliance with Section 5.1(a) with respect to all countries in the EU. For further clarity, it is understood and acknowledged that Commercially Reasonable Efforts in the Development of a Licensed Product in a particular country may include sequential implementation of clinical trials and/or intervals between clinical trials for data interpretation and clinical program planning, to the extent such implementation is consistent with the scientific, technical and commercial factors relevant to Development of such Licensed Product in such country (including those described in Section 1.22).