For Certain Material Breaches. In addition to the rights and duties set forth in Sections 13.4 and 13.5 below, Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) above: (a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to such license; (b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme. (c) (i) any licenses granted pursuant to Article 3 shall be revoked, (ii) if 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical and clinical data owned or licensed by Kallikrein LLC or the breaching Party and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as 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 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 (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 BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows: (1) 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 the 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; (2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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 (3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 Section 12.4 below, Dyax BioMarin and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) 12.2.1 above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, have an 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 Collaboration Products in the Field and in the Territory, Aldurazyme 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 Section 3.1 Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; and 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 Collaboration Products Aldurazyme pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein BioMarin/Genzyme LLC in its sole discretion; provided that in the event that Dyax BioMarin is the breaching partyParty, it shall also cause Subsidiary BioMarin Genetics to assign and transfer all of its interest in Kallikrein 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) any all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked, ; (ii) if Kallikrein BioMarin/Genzyme 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereofBioMarin/Genzyme LLC), pre-clinical “Orphan Drug” designations and clinical data owned or licensed by Kallikrein BioMarin/Genzyme LLC or the breaching Party and any trademarks owned or licensed by Kallikrein BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 9.1.2 hereofof the Amended and Restated Collaboration Agreement) 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 Kallikrein BioMarin/Genzyme LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by such the non-breaching Party until such time as Kallikrein 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 Kallikrein BioMarin/Genzyme 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 (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 to: [****] (iii) interest thereon at the Base Rate of interest declared from time to time by BankBostonBank of America, 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:
(1i) 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 the Collaboration ProductsAldurazyme, 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[****];
(2ii) for as long as the non-breaching Party (together, in the case of Dyax BioMarin with SubsidiaryBioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) right, title and interest in the Collaboration Products Aldurazyme which is equal to or greater than the breaching Party's ’s (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) 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
(3iii) on the fourth anniversary [****] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (1i) and (2ii) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1i), (2ii) and (3iii) 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 Sections 13.4 and 13.5 below, Dyax Genzyme and Genzyme Aptein shall have the following rights and duties upon termination of this Agreement the Program pursuant to Section 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 obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant sublicenses, under the breaching Party's ’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 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and PROVIDEDprovided, FURTHERfurther, that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) any licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed filed, “orphan drug” designations in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical Field and clinical data owned or licensed by Kallikrein LLC or the breaching Party licensed, and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party its Affiliates shall be (Ai) assigned or exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as Kallikrein 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 Kallikrein 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 (i) eighty percent (80%) [***] of the Fair Value (as defined in Section 13.3.6 below) of the breaching Party's ’s interest in the Collaboration Products Program as of the effective 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) plus interest thereon at the Base Prime Rate of interest declared reported from time to time by BankBostonthe 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"“Breach Buyout Amount”), payable as follows:
(1) 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 the Collaboration ProductsProgram, then the non-breaching Party shall, upon any such sale sale, license or other disposition, pay the breaching Party an amount equal to seventy-five percent (75%) [***] of the net proceeds of such sale sale, license or other disposition when such payments are actually paid;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold sold, licensed or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products Program which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) ’s Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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[***]
(3) on the fourth anniversary 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 Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax 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 13.2.1(ii) 13.2.1 above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, 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, rights in Joint Technology and Joint Patent Rights, 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 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 Section 3.1 hereofhereof immediately prior to such termination; and 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 develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to the non-breaching Party, and the non-non- breaching Party may dissolve Kallikrein BioMarin/Genzyme LLC in its sole discretion; provided that in the event that Dyax BioMarin is the breaching partyParty, it shall also cause Subsidiary BioMarin Genetics to assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to Genzyme.
(c) (i) any all licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein BioMarin/Genzyme 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 Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical "Orphan Drug" designations and clinical data owned or licensed by Kallikrein BioMarin/Genzyme LLC or the breaching Party and any trademarks owned or licensed by Kallikrein BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or exclusively licensed to the non-non- breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by such the non-breaching Party until such time as Kallikrein 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 Kallikrein BioMarin/Genzyme 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 (i) eighty ninety percent (8090%) 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 plus (ii) if applicable, the non-non- ---- terminating Party's Percentage Interest of the net asset value of Kallikrein BioMarin/Genzyme LLC as of the date of termination after deduction of net assets included in the Fair Value of Collaboration Products, PLUS plus (iii) ---- interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNTBreach Buyout Amount"), payable as follows:: --------------------
(1) 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 the 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;
(2) for as long as the non-breaching Party (together, in the case of Dyax BioMarin with SubsidiaryBioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) a percentage of Net Profits, which percentage shall equal (i) the breaching Party's (and, in the event that Dyax BioMarin is the breaching Party, SubsidiariesBioMarin 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 Dyax BioMarin is the non-breaching nonbreaching Party, SubsidiaryBioMarin Genetics) as described in the preceding paragraph; and
(3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) above:
If (a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 either GelTex or desirable to effect the foregoing; 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 Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to perform any material duty imposed upon such license;
Party under this Agreement or a Development Plan, (b) either GelTex or Genzyme fails to make the program funding capital contributions in accordance with Article 4 hereof, (c) Genzyme fails to use commercially reasonable and diligent efforts to commercialize any Collaboration Product in any Major Market Country in accordance with the Commercialization Plan for such Collaboration Product or (d) (1) if applicableGelTex is obliged to supply the Starting Material pursuant to Section 7.5 hereof, GelTex fails to either maintain the breaching Nittobo License in full force and effect or supply RenaGel LLC or its contract manufacturer(s), as the case may be, 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 shall assign patents, including but not limited to those covered by the Nittobo License or (2) if RenaGel LLC is obliged to supply the Starting Material pursuant to Section 7.5 hereof, GelTex fails to maintain the Nittobo License in full force and transfer all 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 its interest in Kallikrein LLC to written notice thereof from the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC elect, in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) enforce the terms of this Agreement and seek any licenses granted pursuant and all remedies available to Article 3 shall be revokedit at law and in equity, (ii) if Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name case of an entity other than Kallikrein LLC clause (b) above, waive the terms of Article 4 with respect to any one or more required capital contributions and cause the nonPercentage 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-breaching Party pursuant day period shall be extended to Section 5.3 hereof), pre-clinical and clinical data owned or licensed by Kallikrein LLC or one hundred eighty (180) days if the breaching Party has engaged in good faith efforts to remedy such default within such 90-day period and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered indicated in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed writing to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in prior to the name expiration of an entity other than Kallikrein LLC or such 90-day period that it believes that it will be able to remedy the nondefault within such 180-breaching Party day period, but such extension shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time apply only so long as 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 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 is engaging in good faith efforts 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 BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows:
(1) 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 the Collaboration Products, then the non-breaching Party shall, upon any remedy 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;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax 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 13.2.1(ii) 13.2.1 above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, 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, rights in Joint Technology and Joint Patent Rights, 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 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 Section 3.1 hereofhereof immediately prior to such termination; and 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 develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to the non-breaching Party, and the non-non- breaching Party may dissolve Kallikrein BioMarin/Genzyme LLC in its sole discretion; provided that in the event that Dyax BioMarin is the breaching partyParty, it shall also cause Subsidiary BioMarin Genetics to assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to Genzyme.
(c) (i) any all licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein BioMarin/Genzyme 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 Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical "Orphan Drug" designations and clinical data owned or licensed by Kallikrein BioMarin/Genzyme LLC or the breaching Party and any trademarks owned or licensed by Kallikrein BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or exclusively licensed to the non-non- breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by such the non-breaching Party until such time as Kallikrein 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 Kallikrein BioMarin/Genzyme 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 (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 BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNTBreach Buyout Amount"), payable as follows:: --------------------
(1) 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 the 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[* * *];
(2) for as long as the non-breaching Party (together, in the case of Dyax BioMarin with SubsidiaryBioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax[* CONFIDENTIAL TREATMENT REQUESTED] BioMarin, with SubsidiariesBioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) 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
(3) on the fourth anniversary [* * *] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax GTC and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii13.2.1(iv) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein ATIII LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein ATIII LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.;
(c) (i) any all licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein ATIII 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 Kallikrein ATIII LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical ) and clinical data owned or licensed by Kallikrein ATIII LLC or the breaching Party and any trademarks owned or licensed by Kallikrein ATIII LLC (other than any trademarks registered in the name of an entity other than Kallikrein ATIII LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein ATIII LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein ATIII LLC, the non-non- breaching Party or any Third Party or Affiliate designated by such Party until such time as Kallikrein 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 Kallikrein 37 ATIII 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 (i) eighty percent (80%) of the Fair Value (as defined in Section 13.3.6 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) plus interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. The First National Bank of Boston in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows:
(1) 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 the 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;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of the date of termination, the non-non- breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) any licenses granted pursuant to Article 3 shall be revoked, (ii) if 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical and clinical data owned or licensed by Kallikrein LLC or the breaching Party and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as 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 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 (i) eighty percent (80%) of the Fair Value (as defined in Section 13.3.6 13.3.5 below) of the breaching Party's interest in the Collaboration Products as of the date of termination, PLUS 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 plus (iii) interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNTBreach Buyout Amount"), payable as follows:
(1) 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 the 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;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax GTC and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii13.2.1(iv) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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, ------------------------ *Confidential treatment for indicated portion respectfully requested offer for sale, sell, have sold, import and export 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein ATIII LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein ATIII LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.;
(c) (i) any all licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein ATIII 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 Kallikrein ATIII LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical ) and clinical data owned or licensed by Kallikrein ATIII LLC or the breaching Party and any trademarks owned or licensed by Kallikrein ATIII LLC (other than any trademarks registered in the name of an entity other than Kallikrein ATIII LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein ATIII LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein ATIII LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as Kallikrein 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 Kallikrein ATIII 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 (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) * plus interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. The First National Bank of Boston in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNTBreach Buyout Amount"), payable as follows:
(1) 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 the 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*;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of * the date of termination, the non-non- breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED------------------------ *Confidential treatment for indicated portion respectfully requested provided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax Genzyme and Genzyme Aptein shall have the following rights and duties upon termination of this Agreement the Program pursuant to Section 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 obtain from the breaching Breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and PROVIDEDprovided, FURTHERfurther, 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 develop and market Collaboration Products pursuant to such license;
(b2) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) any licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed filed, "orphan drug" designations in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical Field and clinical data owned or licensed by Kallikrein LLC or the breaching Party licensed, and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party its Affiliates shall be (Ai) assigned or exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as Kallikrein 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 Kallikrein LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter; and
(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 this end consents 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 nonany regulatory authority cross-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 BankBoston, N.A. in Boston, Massachusetts from the date of termination 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
(1) 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 the Collaboration ProductsProgram, then the non-non- breaching Party shall, upon any such sale sale, license or other disposition, pay the breaching Party an amount equal to seventy-five percent (75%) [***] of the net proceeds of such sale sale, license or other disposition when such payments are actually paid;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold sold, licensed or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products Program which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) 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 Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) shall not exceed the Breach Buyout Amount.
Appears in 1 contract
Samples: License and Collaboration Agreement (Cambridge Antibody Technology Group PLC)
For Certain Material Breaches. In addition to the rights and duties set forth in Sections 13.4 and 13.5 below, Dyax 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 13.2.1(ii13.2.1(iii) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, exclusive and irrevocable right and license, with the right to grant 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 Collaboration Products in the Field Territory and in the TerritoryField, 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and PROVIDED, FURTHERprovided, that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein RenaGel LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein RenaGel LLC in its sole discretion; , provided that in the event that Dyax GelTex is the breaching partyParty, it shall also cause Subsidiary RenaGel, Inc. to assign and transfer all of its interest in Kallikrein RenaGel LLC to Genzyme.;
(c) (i) any all licenses granted pursuant to Article 3 shall be revokedrevoked and, (ii) if Kallikrein RenaGel LLC does not yet exist or 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical Approval and clinical data owned or licensed by Kallikrein RenaGel LLC or the breaching Party and any trademarks owned or licensed by Kallikrein RenaGel LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as 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 Kallikrein LLC, the non-breaching Party or its designee, as appropriate, as soon as practicable thereafter; andParty;
(d) the non-breaching Party shall become obligated to pay the breaching Party an amount equal 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) plus interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. The First National Bank of Boston in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows:
(1) 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 the 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*******;
(2) for as long as the non-breaching Party (together, in the case of Dyax GelTex, with SubsidiaryRenaGel, 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 DyaxGelTex, with SubsidiariesRenaGel, Inc.'s) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together together, in the case of DyaxGelTex, with SubsidiariesRenaGel, 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 Dyax GelTex is the breaching Party, SubsidiaryRenaGel, Inc.) a percentage of Net Profits, which percentage ******** shall equal (i) the breaching Party's (and, in the event that Dyax GelTex is the breaching Party, SubsidiariesRenaGel, Inc.'s) 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
(3) on the fourth anniversary ******** of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax GelTex is the breaching Party, SubsidiaryRenaGel, Inc.) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 Section 12.4 below, Dyax 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 13.2.1(ii) 12.2.1 above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, have an 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 Collaboration Products in the Field and in the Territory, Aldurazyme 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 Section 3.1 Article 3 or Article 4 hereof, as the case may be, immediately prior to such termination; and 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 Collaboration Products Aldurazyme pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein BioMarin/Genzyme LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein BioMarin/Genzyme LLC in its sole discretion; provided that in the event that Dyax BioMarin is the breaching partyParty, it shall also cause Subsidiary BioMarin Genetics to assign and transfer all of its interest in Kallikrein 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) any all rights and licenses or rights granted pursuant to Article 3 or Article 4, as the case may be, shall be revoked, ; (ii) if Kallikrein BioMarin/Genzyme 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereofBioMarin/Genzyme LLC), pre-clinical “Orphan Drug” designations and clinical data owned or licensed by Kallikrein BioMarin/Genzyme LLC or the breaching Party and any trademarks owned or licensed by Kallikrein BioMarin/Genzyme LLC (other than any trademarks registered in the name of an entity other than Kallikrein BioMarin/Genzyme LLC or the non-breaching Party pursuant to Section 9.1.2 hereofof the Amended and Restated Collaboration Agreement) 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 Kallikrein BioMarin/Genzyme LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein BioMarin/Genzyme LLC, the non-breaching Party or any Third Party or Affiliate designated by such the non-breaching Party until such time as Kallikrein 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 Kallikrein BioMarin/Genzyme 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 (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 to: [**] (iii) interest thereon at the Base Rate of interest declared from time to time by BankBostonBank 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"“Breach Buyout Amount”), payable as follows:
(1i) 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 the Collaboration ProductsAldurazyme, 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[**];
(2ii) for as long as the non-breaching Party (together, in the case of Dyax BioMarin with SubsidiaryBioMarin Genetics) has not sold or otherwise disposed of all or a portion of its (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) right, title and interest in the Collaboration Products Aldurazyme which is equal to or greater than the breaching Party's ’s (together in the case of DyaxBioMarin, with SubsidiariesBioMarin Genetics) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) 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
(3iii) on the fourth anniversary [**] of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax BioMarin is the breaching Party, SubsidiaryBioMarin Genetics) the difference between the aggregate amounts paid pursuant to clauses (1i) and (2ii) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1i), (2ii) and (3iii) 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 Sections 13.4 and 13.5 below, Dyax 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 13.2.1(ii13.2.1(iii) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, exclusive and irrevocable right and license, with the right to grant 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 Collaboration Products in the Field Territory and in the TerritoryField, 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 that had been or would be granted with respect thereto under Section 3.1 hereof; and PROVIDED, FURTHERprovided, that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein RenaGel LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein RenaGel LLC in its sole discretion; , provided that in the event that Dyax GelTex is the breaching partyParty, it shall also cause Subsidiary RenaGel, Inc. to assign and transfer all of its interest in Kallikrein RenaGel LLC to Genzyme.;
(c) (i) any all licenses granted pursuant to Article 3 shall be revoked, (ii) if Kallikrein RenaGel LLC does not yet exist or 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 Kallikrein LLC or the non-breaching Party obtained by Genzyme and/or its Affiliates pursuant to Section 5.3 hereof), pre-clinical ) and clinical data owned or licensed by Kallikrein RenaGel LLC or the breaching Party and any trademarks owned or licensed by Kallikrein RenaGel LLC (other than any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any in the case of Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party obtained by Genzyme 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 Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as Kallikrein 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 Kallikrein RenaGel 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 (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* * Confidential information omitted and filed separately. *, 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) plus interest thereon at the Base Rate of interest declared from time to time by BankBoston, N.A. The First National Bank of Boston in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows:
(1) 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 the 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;*
(2) for as long as the non-breaching Party (together, in the case of Dyax GelTex, with SubsidiaryRenaGel, Inc.) has not sold or otherwise disposed of all or a portion of its (together together, in the case of DyaxGelTex, with SubsidiariesRenaGel, Inc.'s) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together together, in the case of DyaxGelTex, with SubsidiariesRenaGel, 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 Dyax GelTex is the breaching Party, SubsidiaryRenaGel, Inc.) a percentage of Net Profits, which percentage * shall equal (i) the breaching Party's (and, in the event that Dyax GelTex is the breaching Party, SubsidiariesRenaGel, Inc.'s) 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
(3) on the fourth anniversary * of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax GelTex is the breaching Party, SubsidiaryRenaGel, Inc.) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) above:
(a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 Section 3.1 hereof; and PROVIDEDprovided, FURTHERfurther, that any license granted hereunder shall be subject to the obligation of the non-breaching Party to use commercially reasonable and diligent efforts to develop and market Collaboration Products pursuant to such license;
(b) if applicable, the breaching Party shall assign and transfer all of its interest in Kallikrein LLC to the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) any licenses granted pursuant to Article 3 shall be revoked, (ii) if 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 Kallikrein LLC or the non-breaching Party pursuant to Section 5.3 hereof), pre-clinical and clinical data owned or licensed by Kallikrein LLC or the breaching Party and any trademarks owned or licensed by 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 Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in the name of an entity other than Kallikrein LLC or the non-breaching Party shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time as 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 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 (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 BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made ************* (the "BREACH BUYOUT AMOUNTBreach Buyout Amount"), payable as follows:
(1) 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 the 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*************;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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*************
(3) on the fourth anniversary of ************* the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount*************; PROVIDEDprovided, that the aggregate amount of all payments made under clauses (1), (2) and (3) 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 Sections 13.4 and 13.5 below, Dyax and Genzyme shall have the following rights and duties upon termination of this Agreement pursuant to Section 13.2.1(ii) above:
If (a) the non-breaching Party shall obtain from the breaching Party the worldwide, exclusive, irrevocable right and license, with the right to grant 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 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 either GelTex or desirable to effect the foregoing; 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 Section 3.1 hereof; and 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 develop and market Collaboration Products pursuant to perform any material duty imposed upon such license;
Party under this Agreement or a Development Plan, (b) either GelTex or Genzyme fails to make the program funding capital contributions in accordance with Article 4 hereof, (c) Genzyme fails to use commercially reasonable and diligent efforts to commercialize any Collaboration Product in any Major Market Country in accordance with the Commercialization Plan for such Collaboration Product or (d) (1) if applicableGelTex is obliged to supply the Starting Material pursuant to Section 7.5 hereof, GelTex fails to either maintain the breaching Nittobo License in full force and effect or supply RenaGel LLC or its contract manufacturer(s), as the case may be, 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 shall assign patents, including but not limited to those covered by the Nittobo License or (2) if RenaGel LLC is obliged to supply the Starting Material pursuant to Section 7.5 hereof, GelTex fails to maintain the Nittobo License in full force and transfer all 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 its interest in Kallikrein LLC to written notice thereof from the non-breaching Party, and the non-breaching Party may dissolve Kallikrein LLC elect, in its sole discretion; provided that in the event that Dyax is the breaching party, it shall also cause Subsidiary to assign and transfer all of its interest in Kallikrein LLC to Genzyme.
(c) (i) except with respect to clause (b) above, enforce the terms of this Agreement and seek any licenses granted pursuant and all remedies available to Article 3 shall be revokedit at law and in equity, (ii) if Kallikrein LLC does not yet exist or is dissolved, any applicable Regulatory Approvals (other than any Regulatory Approvals filed in the name case of an entity other than Kallikrein LLC clause (b) above, waive the terms of Article 4 with respect to any one or more required capital contributions and cause the nonPercentage 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-breaching Party pursuant day period shall be extended to Section 5.3 hereof), pre-clinical and clinical data owned or licensed by Kallikrein LLC or one hundred eighty (180) days if the breaching Party has engaged in good faith efforts to remedy such default within such 90-day period and any trademarks owned or licensed by Kallikrein LLC (other than any trademarks registered indicated in the name of an entity other than Kallikrein LLC or the non-breaching Party pursuant to Section 9.1.2 hereof) shall be assigned or licensed writing to the non-breaching Party and (iii) any Regulatory Approvals filed and any trademarks registered in prior to the name expiration of an entity other than Kallikrein LLC or such 90-day period that it believes that it will be able to remedy the nondefault within such 180-breaching Party day period, but such extension shall be (A) exclusively licensed to Kallikrein LLC, the non-breaching Party or any Third Party or Affiliate designated by such Party until such time apply only so long as 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 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 is engaging in good faith efforts 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 BankBoston, N.A. in Boston, Massachusetts from the date of termination to the date payment is made (the "BREACH BUYOUT AMOUNT"), payable as follows:
(1) 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 the Collaboration Products, then the non-breaching Party shall, upon any remedy 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;
(2) for as long as the non-breaching Party (together, in the case of Dyax with Subsidiary) has not sold or otherwise disposed of all or a portion of its (together in the case of Dyax, with Subsidiaries) right, title and interest in the Collaboration Products which is equal to or greater than the breaching Party's (together in the case of Dyax, with Subsidiaries) Percentage Interest as of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) 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
(3) on the fourth anniversary of the date of termination, the non-breaching Party shall pay the breaching Party (and, in the event that Dyax is the breaching Party, Subsidiary) the difference between the aggregate amounts paid pursuant to clauses (1) and (2) above and the Breach Buyout Amount; PROVIDED, that the aggregate amount of all payments made under clauses (1), (2) and (3) shall not exceed the Breach Buyout Amountdefault.
Appears in 1 contract
Samples: Collaboration Agreement (Geltex Pharmaceuticals Inc)
