For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 below, BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 above: (a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme pursuant to such license; (b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme. (c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter; (d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of America, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”), payable as follows: (i) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ right, title and interest in Aldurazyme, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]; (ii) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and (iii) on the [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i), (ii) and (iii) shall not exceed the Breach Buyout Amount.
Appears in 2 contracts
Samples: Manufacturing, Marketing and Sales Agreement, Manufacturing, Marketing and Sales Agreement (Biomarin Pharmaceutical Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(ii) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology, rights in Joint Technology and Joint Patent Rights, and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, PROVIDED that such license shall be for the same level of exclusivity as the rights that had been or would be granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof; and PROVIDED, as the case may beFURTHER, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme Kallikrein LLC in its sole discretion; provided that in the event that BioMarin Dyax is the breaching Partyparty, it shall also cause BioMarin Genetics Subsidiary to assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and any licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLCKallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), “Orphan Drug” designations pre-clinical and clinical data owned or licensed by BioMarin/Genzyme Kallikrein LLC or the breaching Party and any trademarks owned or licensed by BioMarin/Genzyme Kallikrein LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;; and
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] to (i) eighty percent (80%) of the Fair Value (as defined in Section 13.3.6 below) of the breaching Party's interest in the Collaboration Products as of the date of termination, PLUS (ii) if applicable, the non-terminating Party's Percentage Interest of the net asset value of Kallikrein LLC as of the date of termination after deduction of net assets included in the Fair Value of Collaboration Products, PLUS (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of AmericaBankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”"BREACH BUYOUT AMOUNT"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]seventy-five percent (75%) of the net proceeds of such sale or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin Dyax with BioMarin GeneticsSubsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) [****] a percentage of Net Profits, which percentage shall equal (i) the breaching Party's (and, in the event that Dyax is the breaching Party, Subsidiaries) Percentage Interest as of the date of termination minus (ii) a percentage equal to the portion of the right, title and interest in the Collaboration Products sold or otherwise disposed of by the non-breaching Party (and in the event that Dyax is the non-breaching Party, Subsidiary) as described in the preceding paragraph; and
(iii3) on the [****] fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; providedPROVIDED, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount.
Appears in 2 contracts
Samples: Collaboration Agreement (Dyax Corp), Collaboration Agreement (Genzyme Corp)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Genzyme and Genzyme Aptein shall have the following rights and duties upon termination of this Agreement the Program pursuant to Section 12.2.1 13.2.1(ii) above:
(a) all licenses granted pursuant to Article 3 shall be revoked (except for the License Rights, which shall remain in full force and effect unless such rights shall have been terminated pursuant to Section 13.6), the non-breaching Party shall have an obtain from the breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party’s Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, provided that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof; and provided, as the case may befurther, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed filed, “orphan drug” designations in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations Field and clinical data owned or licensed by BioMarin/Genzyme LLC licensed, and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) breaching Party or its Affiliates shall be (i) assigned or exclusively licensed to the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals Approvals, “orphan drug” designations or trademarks under the applicable provisions of the Regulatory Scheme and (Bii) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;; provided, however, that in any country where such transfer or assignment is not possible, the breaching Party shall use commercially reasonable and diligent efforts to ensure that the non-breaching Party has the benefit of such Regulatory Approvals and “orphan drug” designations and to this end consents to any regulatory authority cross-referencing to the data and information on file with any regulatory authority as may be necessary; and
(dc) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: to [****] of the Fair Value (iiias defined in Section 13.3.6 below) of the breaching Party’s interest in the Program as of the effective date of termination, plus interest thereon at the Base Prime Rate of interest declared reported from time to time by Bank of Americathe Chase Manhattan Bank, N.A. in BostonNew York, Massachusetts New York, from the date of termination to the date payment is made (the “Breach Buyout Amount”), payable as follows:
(i1) if the non-breaching Party elects to sell sell, license or otherwise dispose of all or any portion of its the breaching Party’s (or its Affiliates’ ’) right, title and interest in Aldurazymethe Program, then the non-breaching Party shall, upon any such sale sale, license or other disposition, pay the breaching Party an amount equal to [****]] of the net proceeds of such sale, license or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold sold, licensed or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Program which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and]
(iii3) on the later to occur of: (A) the [****] of the date of terminationtermination and (B) the [***] of the date of First Commercial Sale of a Collaboration Product, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i), (ii) and (iii) shall not exceed the Breach Buyout Amount.[***];
Appears in 2 contracts
Samples: License and Collaboration Agreement, License and Collaboration Agreement (Cambridge Antibody Technology Group PLC)
For Certain Material Breaches. In addition to the rights and ----------------------------- duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Genetics shall have the following rights and BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1 above:
(a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology (i.e., the BioMarin Patent Rights and BioMarin Technology or the Genzyme Patent Rights and Genzyme Technology, as appropriate) and Manufacturing Know-How Controlled by the breaching Party to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, Section 3.1 hereof immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-non- breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLCLLC pursuant to Section 5.3 hereof), “"Orphan Drug” " designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-non- breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: to [**** * *] (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of AmericaBankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “"Breach Buyout Amount”"), payable as follows:: --------------------
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [**** * *];
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together in the case of [* CONFIDENTIAL TREATMENT REQUESTED] BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [**** * *] as described in the preceding paragraph; and
(iii3) on the [**** * *] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.4 hereof on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligations to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.4 hereof.
Appears in 1 contract
Samples: Collaboration Agreement (Biomarin Pharmaceutical Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin RenaGel, Inc. shall have the following rights and GelTex and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(iii) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the exclusive and irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Territory and in the Field, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme RenaGel LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme RenaGel LLC in its sole discretion; , provided that in the event that BioMarin GelTex is the breaching Party, it shall also cause BioMarin Genetics RenaGel, Inc. to assign and transfer all of its interest in BioMarin/Genzyme RenaGel LLC to Genzyme.;
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; (ii) revoked and, if BioMarin/Genzyme RenaGel LLC is dissolved, the sublicense under the Nittobo License (if obtained) and any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations Approval and clinical data owned or licensed by BioMarin/Genzyme RenaGel LLC and any trademarks owned or licensed by BioMarin/Genzyme RenaGel LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [to ****] (iii) ***, plus interest thereon at the Base Rate of interest declared from time to time by The First National Bank of America, N.A. Boston in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”"BREACH BUYOUT AMOUNT"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]***;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin GelTex, with BioMarin GeneticsRenaGel, Inc.) has not sold or otherwise disposed of all or a portion of its * Confidential Treatment requested for information omitted and filed separately with the SEC. (together together, in the case of BioMarinGelTex, with BioMarin GeneticsRenaGel, Inc.'s) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together together, in the case of BioMarinGelTex, with BioMarin GeneticsRenaGel, Inc.'s) Percentage Interest (as defined in the Operating Agreement) as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin GelTex is the breaching Party, BioMarin GeneticsRenaGel, Inc.) [****] as described **** shall equal (i) the breaching Party's (and, in the preceding paragraphevent that GelTex is the breaching Party, RenaGel, Inc.'s) ********; and
(iii3) on the [****] **** of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin GelTex is the breaching Party, BioMarin GeneticsRenaGel, Inc.) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.1 on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligation to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.1, and if GelTex is the non-breaching Party and such payments remain unpaid after they have become due and payable, GelTex shall have the right to offset the payments otherwise due to Genzyme pursuant to clause (d) above in an amount equal to the outstanding payments due and payable to GelTex pursuant to Section 4.1 hereof.
Appears in 1 contract
Samples: Collaboration Agreement (Geltex Pharmaceuticals Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 below, BioMarin and Genzyme shall have the following [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. rights and duties upon termination of this Agreement pursuant to Section 12.2.1 above:
(a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of America, N.A. in Boston, Massachusetts from [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. the date of termination to the date payment is made (the “Breach Buyout Amount”), payable as follows:
(i) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ right, title and interest in Aldurazyme, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****];
(ii) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and
(iii) on the [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i), (ii) and (iii) shall not exceed the Breach Buyout Amount.
Appears in 1 contract
Samples: Manufacturing, Marketing and Sales Agreement (Genzyme Corp)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin GTC and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(iv) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, ------------------------ *Confidential treatment for indicated portion respectfully requested offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, ; that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme ATIII LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme ATIII LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.;
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme ATIII LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations ATIII LLC pursuant to Section 5.3 hereof) and clinical data owned or licensed by BioMarin/Genzyme ATIII LLC and any trademarks owned or licensed by BioMarin/Genzyme ATIII LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme ATIII LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme ATIII LLC shall be (A) exclusively licensed to BioMarin/Genzyme ATIII LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme ATIII LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme ATIII LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] (iii) to * plus interest thereon at the Base Rate of interest declared from time to time by The First National Bank of America, N.A. Boston in Boston, Massachusetts from the date of termination to the date payment is made (the “"Breach Buyout Amount”"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****];
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) 's Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party * which * shall equal (andi) *, in the event that BioMarin is the breaching Party, BioMarin Genetics(ii) [****] * as described in the preceding paragraph; and
(iii3) on the [****] of * the date of termination, the non-non- breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; ------------------------ *Confidential treatment for indicated portion respectfully requested provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.4 hereof on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligations to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.4 hereof.
Appears in 1 contract
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin RenaGel, Inc. shall have the following rights and GelTex and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(iii) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the exclusive and irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Territory and in the Field, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme RenaGel LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme RenaGel LLC in its sole discretion; , provided that in the event that BioMarin GelTex is the breaching Party, it shall also cause BioMarin Genetics RenaGel, Inc. to assign and transfer all of its interest in BioMarin/Genzyme RenaGel LLC to Genzyme.;
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme RenaGel LLC is dissolved, the sublicense under the Nittobo License (if obtained) and any applicable Regulatory Approvals Approval (other than any Regulatory Approvals Approval filed in the name of an entity other than BioMarin/or obtained by Genzyme LLC), “Orphan Drug” designations and/or its Affiliates pursuant to Section 5.3 hereof) and clinical data owned or licensed by BioMarin/Genzyme RenaGel LLC and any trademarks owned or licensed by BioMarin/Genzyme RenaGel LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any in the case of Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/obtained by Genzyme LLC and/or its Affiliates pursuant to Section 5.3 hereof, such Regulatory Approvals shall be (A) exclusively licensed (as against all parties, including the breaching Party) to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme RenaGel LLC, the non-breaching Party or its designee until such time as RenaGel LLC, the non-breaching Party or its designee, as determined by the non-breaching Party, is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme RenaGel LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [to * * Confidential information omitted and filed separately. ****] (iii) , plus interest thereon at the Base Rate of interest declared from time to time by The First National Bank of America, N.A. Boston in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”"BREACH BUYOUT AMOUNT"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****];
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin GelTex, with BioMarin GeneticsRenaGel, Inc.) has not sold or otherwise disposed of all or a portion of its (together together, in the case of BioMarinGelTex, with BioMarin GeneticsRenaGel, Inc.'s) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together together, in the case of BioMarinGelTex, with BioMarin GeneticsRenaGel, Inc.'s) Percentage Interest (as defined in the Operating Agreement) as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin GelTex is the breaching Party, BioMarin GeneticsRenaGel, Inc.) [****] as described * shall equal (i) the breaching Party's (and, in the preceding paragraphevent that GelTex is the breaching Party, RenaGel, Inc.'s) *; and
(iii3) on the [****] * of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin GelTex is the breaching Party, BioMarin GeneticsRenaGel, Inc.) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.1 on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligation to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.1, and if GelTex is the non-breaching Party and such payments remain unpaid after they have become due and payable, GelTex shall have the right to offset the payments otherwise due to Genzyme pursuant to clause (d) above in an amount equal to the outstanding payments due and payable to GelTex pursuant to Section 4.1 hereof.
Appears in 1 contract
Samples: Collaboration Agreement (Geltex Pharmaceuticals Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(ii) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, PROVIDED that such license shall be for the same level of exclusivity as the rights that had been or would be granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof; and PROVIDED, as the case may beFURTHER, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme Kallikrein LLC in its sole discretion; provided that in the event that BioMarin Dyax is the breaching Partyparty, it shall also cause BioMarin Genetics Subsidiary to assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and any licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLCKallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), “Orphan Drug” designations pre-clinical and clinical data owned or licensed by BioMarin/Genzyme Kallikrein LLC or the breaching Party and any trademarks owned or licensed by BioMarin/Genzyme Kallikrein LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;; and
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] to (i) eighty percent (80%) of the Fair Value (as defined in Section 13.3.5 below) of the breaching Party's interest in the Collaboration Products as of the date of termination, plus (ii) if applicable, the non-terminating Party's Percentage Interest of the net asset value of Kallikrein LLC as of the date of termination after deduction of net assets included in the Fair Value of Collaboration Products, plus (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of AmericaBankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “"Breach Buyout Amount”"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]seventy-five percent (75%) of the net proceeds of such sale or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin Dyax with BioMarin GeneticsSubsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) [****] a percentage of Net Profits, which percentage shall equal (i) the breaching Party's (and, in the event that Dyax is the breaching Party, Subsidiaries) Percentage Interest as of the date of termination minus (ii) a percentage equal to the portion of the right, title and interest in the Collaboration Products sold or otherwise disposed of by the non-breaching Party (and in the event that Dyax is the non-breaching Party, Subsidiary) as described in the preceding paragraph; and
(iii3) on the [****] fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; providedPROVIDED, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount.
Appears in 1 contract
Samples: Collaboration Agreement (Dyax Corp)
For Certain Material Breaches. In addition to the rights and ----------------------------- duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Genetics shall have the following rights and BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1 above:
(a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology (i.e., the BioMarin Patent Rights and BioMarin Technology or the Genzyme Patent Rights and Genzyme Technology, as appropriate) and Manufacturing Know-How Controlled by the breaching Party to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, Section 3.1 hereof immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-non- breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLCLLC pursuant to Section 5.3 hereof), “"Orphan Drug” " designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-non- breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] to (i) ninety percent (90%) of the Fair Value (as defined in Section 13.3.6 below) of the breaching Party's interest in the Collaboration Products as of the date of termination, plus (ii) the non- ---- terminating Party's Percentage Interest of the net asset value of BioMarin/Genzyme LLC as of the date of termination after deduction of net assets included in the Fair Value of Collaboration Products, plus (iii) ---- interest thereon at the Base Rate of interest declared from time to time by Bank of AmericaBankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “"Breach Buyout Amount”"), payable as follows:: --------------------
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]seventy-five percent (75%) of the net proceeds of such sale or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] a percentage of Net Profits, which percentage shall equal (i) the breaching Party's (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) Percentage Interest as of the date of termination minus (ii) a percentage equal to the portion of the right, title and interest in the Collaboration Products sold or otherwise disposed of by the non-breaching Party (and in the event that BioMarin is the nonbreaching Party, BioMarin Genetics) as described in the preceding paragraph; and
(iii3) on the [****] fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.4 hereof on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligations to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.4 hereof.
Appears in 1 contract
Samples: Collaboration Agreement (Biomarin Pharmaceutical Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 below, BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 above:
If (a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme and the breaching Party shall execute such documents and take all action as may be necessary either GelTex or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party Genzyme fails to use commercially reasonable and diligent efforts to manufactureperform any material duty imposed upon such Party under this Agreement or a Development Plan, develop and market Aldurazyme pursuant to such license;
(b) either GelTex or Genzyme fails to make the breaching Party shall assign and transfer all of its interest program funding capital contributions in BioMarin/Genzyme LLC to the non-breaching Partyaccordance with Article 4 hereof, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by Genzyme fails to use commercially reasonable and diligent efforts to commercialize any Collaboration Product in any Major Market Country in accordance with the non-breaching party provided in paragraph Commercialization Plan for such Collaboration Product or (ad) of this Section 12.3.1: (i1) all rights and licenses or rights granted if GelTex is obliged to supply the Starting Material pursuant to Article 3 Section 7.5 hereof, GelTex fails to either maintain the Nittobo License in full force and effect or Article 4supply RenaGel LLC or its contract manufacturer(s), as the case may be, shall be revoked; Starting Material in accordance with Section 7.5 hereof in a manner such that the manufacture, use and sale of such Starting Material will not infringe any Third Party patents, including but not limited to those covered by the Nittobo License or (ii2) if BioMarin/Genzyme RenaGel LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in obliged to supply the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC Starting Material pursuant to Section 9.1.2 7.5 hereof, GelTex fails to maintain the Nittobo License in full force and effect and the Steering Committee has not provided GelTex with prior written authorization to terminate the Nittobo License, and, in any case described in clauses (a) - (d), such failure to perform is not cured within ninety (90) days of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to written notice thereof from the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party may elect, in its sole discretion, to (i) enforce the terms of this Agreement and seek any and all remedies available to it at law and in equity, (ii) in the case of clause (b) above, waive the terms of Article 4 with respect to any one or any Third more required capital contributions and cause the Percentage Interests (as defined in the Operating Agreement) and future funding responsibilities of the Parties to be adjusted in accordance with Section 4.2 hereof or (iii) terminate this Agreement with the consequences set forth in Section 13.3.1 below. Such 90-day period shall be extended to one hundred eighty (180) days if the breaching Party or Affiliate designated by has engaged in good faith efforts to remedy such default within such 90-day period and indicated in writing to the non-breaching Party until prior to the expiration of such time 90-day period that it believes that it will be able to remedy the default within such 180-day period, but such extension shall apply only so long as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] (iii) interest thereon at the Base Rate of interest declared from time is engaging in good faith efforts to time by Bank of America, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”), payable as follows:
(i) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ right, title and interest in Aldurazyme, then the non-breaching Party shall, upon any remedy such sale or other disposition, pay the breaching Party an amount equal to [****];
(ii) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and
(iii) on the [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i), (ii) and (iii) shall not exceed the Breach Buyout Amountdefault.
Appears in 1 contract
Samples: Collaboration Agreement (Geltex Pharmaceuticals Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 below, BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 above:
If (a) the non-breaching Party shall have an irrevocable right and license, with the right to grant and authorize sublicenses, to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme and the breaching Party shall execute such documents and take all action as may be necessary either GelTex or desirable to effect the foregoing; provided, that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party Genzyme fails to use commercially reasonable and diligent efforts to manufactureperform any material duty imposed upon such Party under this Agreement or a Development Plan, develop and market Aldurazyme pursuant to such license;
(b) either GelTex or Genzyme fails to make the breaching Party shall assign and transfer all of its interest program funding capital contributions in BioMarin/Genzyme LLC to the non-breaching Partyaccordance with Article 4 hereof, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by Genzyme fails to use commercially reasonable and diligent efforts to commercialize any Collaboration Product in any Major Market Country in accordance with the non-breaching party provided in paragraph Commercialization Plan for such Collaboration Product or (ad) of this Section 12.3.1: (i1) all rights and licenses or rights granted if GelTex is obliged to supply the Starting Material pursuant to Article 3 Section 7.5 hereof, GelTex fails to either maintain the Nittobo License in full force and effect or Article 4supply RenaGel LLC or its contract manufacturer(s), as the case may be, shall be revoked; Starting Material in accordance with Section 7.5 hereof in a manner such that the manufacture, use and sale of such Starting Material will not infringe any Third Party patents, including but not limited to those covered by the Nittobo License or (ii2) if BioMarin/Genzyme RenaGel LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in obliged to supply the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations and clinical data owned or licensed by BioMarin/Genzyme LLC and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC Starting Material pursuant to Section 9.1.2 7.5 hereof, GelTex fails to maintain the Nittobo License in full force and effect and the Steering Committee has not provided GelTex with prior written authorization to terminate the Nittobo License, and, in any case described in clauses (a) - (d), such failure to perform is not cured within ninety (90) days of the Amended and Restated Collaboration Agreement) shall be assigned or exclusively licensed to written notice thereof from the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party may elect, in its sole discretion, to (i) except with respect to clause (b) above, enforce the terms of this Agreement and seek any and all remedies available to it at law and in equity, (ii) in the case of clause (b) above, waive the terms of Article 4 with respect to any one or any Third more required capital contributions and cause the Percentage Interests (as defined in the Operating Agreement) and future funding responsibilities of the Parties to be adjusted in accordance with Section 4.2 hereof or (iii) terminate this Agreement with the consequences set forth in Section 13.3.1 below. Such 90-day period shall be extended to one hundred eighty (180) days if the breaching Party or Affiliate designated by has engaged in good faith efforts to remedy such default within such 90-day period and indicated in writing to the non-breaching Party until prior to the expiration of such time 90-day period that it believes that it will be able to remedy the default within such 180-day period, but such extension shall apply only so long as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] (iii) interest thereon at the Base Rate of interest declared from time is engaging in good faith efforts to time by Bank of America, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”), payable as follows:
(i) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ right, title and interest in Aldurazyme, then the non-breaching Party shall, upon any remedy such sale or other disposition, pay the breaching Party an amount equal to [****];
(ii) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and
(iii) on the [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount; provided, that the aggregate amount of all payments made under clauses (i), (ii) and (iii) shall not exceed the Breach Buyout Amountdefault.
Appears in 1 contract
Samples: Collaboration Agreement (Geltex Pharmaceuticals Inc)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(ii) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect the foregoing; provided, provided that such license shall be for the same level of exclusivity as the rights that had been or would be granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof; and provided, as the case may befurther, immediately prior to such termination; provided further that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme Kallikrein LLC in its sole discretion; provided that in the event that BioMarin Dyax is the breaching Partyparty, it shall also cause BioMarin Genetics Subsidiary to assign and transfer all of its interest in BioMarin/Genzyme Kallikrein LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and any licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLCKallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), “Orphan Drug” designations pre-clinical and clinical data owned or licensed by BioMarin/Genzyme Kallikrein LLC or the breaching Party and any trademarks owned or licensed by BioMarin/Genzyme Confidential material omitted and filed separately with the Securities and Exchange Commission. Asterisks denote such omissions. Kallikrein LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme Kallikrein LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;; and
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [to ****] (iii) interest thereon at the Base Rate of interest declared from time to time by Bank of America, N.A. in Boston, Massachusetts from the date of termination to the date payment is made ********* (the “"Breach Buyout Amount”"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]*********;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin Dyax with BioMarin GeneticsSubsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s 's (together in the case of BioMarinDyax, with BioMarin GeneticsSubsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) [****] as described in the preceding paragraph; and
(iii) on the [****] of *****
(3) on the ************* the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin Dyax is the breaching Party, BioMarin GeneticsSubsidiary) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount*************; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount.
Appears in 1 contract
Samples: Collaboration Agreement (Dyax Corp)
For Certain Material Breaches. In addition to the rights and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin GTC and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 12.2.1 13.2.1(iv) above:
(a) the non-breaching Party shall have an obtain from the breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, PROVIDED; that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof, as the case may be, immediately prior to such termination; provided further PROVIDED FURTHER that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme ATIII LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme ATIII LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.;
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; , (ii) if BioMarin/Genzyme ATIII LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations ATIII LLC pursuant to Section 5.3 hereof) and clinical data owned or licensed by BioMarin/Genzyme ATIII LLC and any trademarks owned or licensed by BioMarin/Genzyme ATIII LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme ATIII LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreementhereof) shall be assigned or exclusively licensed to the non-breaching Party; Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme ATIII LLC shall be (A) exclusively licensed to BioMarin/Genzyme ATIII LLC, the non-non- breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme ATIII LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals or trademarks under the applicable provisions of the Regulatory Scheme and (B) transferred or assigned to BioMarin/Genzyme 37 ATIII LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal to: [****] to eighty percent (iii80%) of the Fair Value (as defined in Section 13.3.5 below) of the breaching Party's interest in the Collaboration Products as of the date of termination, plus interest thereon at the Base Rate of interest declared from time to time by The First National Bank of America, N.A. Boston in Boston, Massachusetts from the date of termination to the date payment is made (the “Breach Buyout Amount”"BREACH BUYOUT AMOUNT"), payable as follows:
(i1) if the non-breaching Party elects to sell or otherwise dispose of all or any portion of its or its Affiliates’ ' right, title and interest in Aldurazymethe Collaboration Products, then the non-breaching Party shall, upon any such sale or other disposition, pay the breaching Party an amount equal to [****]seventy-five percent (75%) of the net proceeds of such sale or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Collaboration Products which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) 's Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party a percentage of Net Profits, which percentage shall equal (and, in the event that BioMarin is i) the breaching Party's Percentage Interest as of the date of termination minus (ii) a percentage equal to the portion of the right, BioMarin Genetics) [****] title and interest in the Collaboration Products sold or otherwise disposed of by the non-breaching Party as described in the preceding paragraph; and
(iii3) on the [****] fourth anniversary of the date of termination, the non-non- breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i1) and (ii2) above and the Breach Buyout Amount; providedPROVIDED, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount; and
(e) if Genzyme has not paid all of the payments described in Section 4.4 hereof on or before the date of termination, termination of this Agreement shall not relieve Genzyme of its obligations to pay any such unpaid amount at such time as it becomes due and payable in accordance with the schedule set forth in Section 4.4 hereof.
Appears in 1 contract
For Certain Material Breaches. In addition to the rights ----------------------------- and duties set forth in Section 12.4 Sections 13.4 and 13.5 below, BioMarin Genzyme and Genzyme Aptein shall have the following rights and duties upon termination of this Agreement the Program pursuant to Section 12.2.1 13.2.1(ii) above:
(a1) all licenses granted pursuant to Article 3 shall be revoked (except for the License Rights, which shall remain in full force and effect unless such rights shall have been terminated pursuant to Section 13.6), the non-breaching Party shall have an obtain from the Breaching Party the irrevocable right and license, with the right to grant and authorize sublicenses, under the breaching Party's Patent Rights, Technology and Manufacturing Know-How to develop, make, have made, use, offer for sale, sell, have sold, import and export Aldurazyme Collaboration Products in the Field and in the Territory, and the breaching Party shall execute such documents and take all action as may be necessary or desirable to effect affect the foregoing; provided, provided that such license shall be for the same level of exclusivity as the rights granted with respect thereto under Article 3 or Article 4 Section 3.1 hereof; and provided, as the case may befurther, immediately prior to such termination; provided further that tha t any license granted hereunder shall be subject to the obligation of the non-non- breaching Party to use commercially reasonable and diligent efforts to manufacture, develop and market Aldurazyme Collaboration Products pursuant to such license;
(b2) the breaching Party shall assign and transfer all of its interest in BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve BioMarin/Genzyme LLC in its sole discretion; provided that in the event that BioMarin is the breaching Party, it shall also cause BioMarin Genetics to assign and transfer all of its interest in BioMarin/Genzyme LLC to Genzyme.
(c) upon exercise of its license option by the non-breaching party provided in paragraph (a) of this Section 12.3.1: (i) all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked; (ii) if BioMarin/Genzyme LLC is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed filed, "orphan drug" designations in the name of an entity other than BioMarin/Genzyme LLC), “Orphan Drug” designations Field and clinical data owned or licensed by BioMarin/Genzyme LLC licensed, and any trademarks owned or licensed by BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC pursuant to Section 9.1.2 of the Amended and Restated Collaboration Agreement) breaching Party or its Affiliates shall be (i) assigned or exclusively licensed to the non-breaching Party; and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than BioMarin/Genzyme LLC shall be (A) exclusively licensed to BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by the non-breaching such Party until such time as BioMarin/Genzyme LLC, the non-breaching Party or its designee is qualified to hold such Regulatory Approvals Approvals, "orphan drug" designations or trademarks under the applicable provisions of the Regulatory Scheme and (Bii) transferred or assigned to BioMarin/Genzyme LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter;
(d) ; provided, however, that in any country where such transfer or assignment is not possible, the breaching Party shall use commercially reasonable and diligent efforts to ensure that the non-breaching Party shall become obligated has the benefit of such Regulatory Approvals and "orphan drug" designations and to pay the breaching Party an amount equal to: [****] (iii) interest thereon at the Base Rate of interest declared from time this end consents to time by Bank of America, N.A. in Boston, Massachusetts from the date of termination any regulatory authority cross-referencing to the date payment is made (the “Breach Buyout Amount”), payable data and information on file with any regulatory authority as follows:may be necessary; and
(i1) if the non-breaching Party elects to sell sell, license or otherwise dispose of all or any portion of its the breaching Party's (or its Affiliates’ ') right, title and interest in Aldurazymethe Program, then the non-non- breaching Party shall, upon any such sale sale, license or other disposition, pay the breaching Party an amount equal to [****]] of the net proceeds of such sale, license or other disposition when such payments are actually paid;
(ii2) for as long as the non-breaching Party (together, in the case of BioMarin with BioMarin Genetics) has not sold sold, licensed or otherwise disposed of all or a portion of its (together in the case of BioMarin, with BioMarin Genetics) right, title and interest in Aldurazyme the Program which is equal to or greater than the breaching Party’s (together in the case of BioMarin, with BioMarin Genetics) 's Percentage Interest as of the date of termination, the non- breaching Party shall pay the breaching Party [***]; and
(3) on the later to occur of: (A) the [***] of the date of termination and (B) the [***] of the date of First Commercial Sale of a Collaboration Product, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) [****] as described in the preceding paragraph; and
(iii) on the [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that BioMarin is the breaching Party, BioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (i) and (ii) above and the Breach Buyout Amount]; provided, that the aggregate amount of all payments made under clauses (i1), (ii2) and (iii3) shall not exceed the Breach Buyout Amount.
Appears in 1 contract
Samples: License and Collaboration Agreement (Cambridge Antibody Technology Group PLC)
