Common use of Termination Effect of Termination Clause in Contracts

Termination Effect of Termination. Section 15.01 OptiNose, in its sole discretion, may terminate this Agreement: (a) at any time without cause, by providing at least [***] prior written notice to Ximedica; (b) by providing Ximedica written notice if Ximedica fails an inspection or suffers a hold, 483, warning letter, or other disciplinary action by the FDA or any other government authority and Ximedica fails to cure such inspection shortcoming, or remove or resolve such hold or disciplinary action in such a manner that the Ximedica facility passes re-inspection by the FDA or government authority and/or is free of the hold or disciplinary action, in good standing with FDA or such other government authority, and is lawfully able to and does resume timely and conforming manufacture and delivery of OptiNose’s LDSAs requirements in accordance with this Agreement within thirty days of such original inspection, or imposition of the hold or disciplinary action; or (c) by providing Ximedica written notice if Ximedica fails to gain recommendation for approval by FDA to manufacture LDSAs in accordance with this Agreement (with such recommendation being either unqualified or with any qualifications resolved to FDA’s acknowledged satisfaction) in a manner that does not delay either (i) approval by the FDA of the New Drug Application filed by OptiNose for Finished Product with the FDA, or (ii) the ability of OptiNose to begin commercial manufacture of LDSAs immediately upon such approval by the FDA. Section 15.02 Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within [***] days after receipt of written notice of such breach. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Section 15.03 Upon expiration or termination of this Agreement for any reason: (a) OptiNose shall have the right at any time after a notice of termination has been given or an event has occurred which, with the passage of time, will cause this Agreement to terminate to [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. require Ximedica, as soon as reasonably practicable and in no more than [***] business days from the effective date of termination, to make available for removal by OptiNose or its designee [***]: (i) all LDSAs, all Material, all partially completed LDSAs, all Deliverables and all OptiNose Information [***], and (ii) all OptiNose Equipment. All of the foregoing items for removal shall be made available at the facility, [***], claims and encumbrances, and Ximedica shall provide [***] cooperation and assistance to OptiNose upon OptiNose’s written request [***] in transitioning the manufacture of LDSAs and related services under this Agreement to an alternate supplier. [***]. (b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, (ii) if the other party requests, use [***] efforts to permanently erase all of the other party’s Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that OptiNose may retain copies of any Confidential Information of Ximedica incorporated in the Deliverables or to the extent necessary to allow it to make full use of the LDSAs and any Deliverables; and provided further, however, that Ximedica shall retain such documents and tangible materials as are required to be maintained by Ximedica under Law. (c) In no event shall OptiNose be liable for [***]. Section 15.04 The rights and obligations of the parties set forth in this Section 15.04 and Article I, Sections 5.01, 5.03, 5.04, 5.05, 5.06 and 6.01(e), Article IX, Article X, Article XI, Article XII, Article XIII, Section 15.03, Article XVI, Article XVII, and Article XIX, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. For purposes of clarity, in no event shall any termination or expiration of this Agreement excuse either party from any breach or violation of this Agreement or other obligation that occurred prior to such termination or expiration and, in each such case, full legal and equitable remedies shall remain available to address such issues.

Termination Effect of Termination. Section 15.01 OptiNose, in its sole discretion, may terminate this Agreement: (a) at any time without cause, by providing at least [***] prior 12.01 This Agreement shall not be terminated except upon the written notice to Ximedica; (b) by providing Ximedica written notice if Ximedica fails an inspection or suffers a hold, 483, warning letter, or other disciplinary action by the FDA or any other government authority and Ximedica fails to cure such inspection shortcoming, or remove or resolve such hold or disciplinary action in such a manner that the Ximedica facility passes re-inspection by the FDA or government authority and/or is free agreement of the hold parties or disciplinary action, in good standing with FDA or such other government authority, and is lawfully able to and does resume timely and conforming manufacture and delivery of OptiNose’s LDSAs requirements in accordance with this Agreement within thirty days of such original inspection, or imposition of the hold or disciplinary action; or (c) by providing Ximedica written notice if Ximedica fails to gain recommendation for approval by FDA to manufacture LDSAs in accordance with Section 12.01. The parties may mutually terminate this Agreement (at any time, with such recommendation being either unqualified or with any qualifications resolved to FDA’s acknowledged satisfaction) in a manner that does not delay either (i) approval without default, by the FDA mutual written consent of the New Drug Application filed by OptiNose for Finished Product with the FDAboth parties, or (ii) the ability of OptiNose to begin commercial manufacture of LDSAs immediately upon such approval by the FDA. Section 15.02 Either and either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within [***] thirty (30) days after receipt of written notice of such breach. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business 10 days or is not dismissed or vacated within forty-five 60 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Section 15.03 12.02 Upon expiration or termination of this Agreement for any reason: (a) OptiNose Service Provider shall have the right at any time after a notice of termination has been given or an event has occurred which, with the passage of time, will cause this Agreement to terminate to [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. require Ximedica, as soon as reasonably practicable and in no more than [***] business days from the effective date of termination, to make available for removal by OptiNose or its designee [***]: (i) all LDSAs, all Material, all partially completed LDSAs, promptly deliver to PERC all Deliverables (whether complete or incomplete) for which PERC has paid and all OptiNose Information [***]PERC Materials, and (ii) all OptiNose Equipment. All of the foregoing items for removal shall be made available promptly remove any Service Provider Equipment located at the facilityPERC’s premises, [***], claims and encumbrances, and Ximedica shall (iii) provide [***] reasonable cooperation and assistance to OptiNose PERC upon OptiNosePERC’s written request [***] and at PERC’s expense in transitioning the manufacture of LDSAs and related services under this Agreement Services to an alternate supplier. [***]Service Provider, and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided. (b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, (ii) if the other party requests, use [***] efforts to permanently erase all of the other party’s Confidential Information from its computer systems, systems and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that OptiNose PERC may retain copies of any Confidential Information of Ximedica Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the LDSAs Services and any Deliverables; and provided further, however, that Ximedica shall retain such documents and tangible materials as are required to be maintained by Ximedica under Law. (c) In no event shall OptiNose PERC be liable for [***]any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement. Section 15.04 12.03 The rights and obligations of the parties set forth in this Section 15.04 12.03 and Article I, Sections 5.01Article VII, 5.03, 5.04, 5.05, 5.06 and 6.01(e)Article VIII, Article IX, Article X, Article XI, Article XII, Article XIII, Section 15.03, Article XVI, Article XVII12.02, and Article XIXXV, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. For purposes of clarity, in no event shall any termination or expiration of this Agreement excuse either party from any breach or violation of this Agreement or other obligation that occurred prior to such termination or expiration and, in each such case, full legal and equitable remedies shall remain available to address such issues.

Termination Effect of Termination. Section 15.01 OptiNose, in its sole discretion, may terminate this Agreement: (a) at any time without cause, by providing at least [***] prior written notice to Ximedica]; (b) by providing Ximedica VTM written notice if Ximedica VTM fails an inspection or suffers a hold, 483, warning letter, or other disciplinary action by the FDA or any other government authority and Ximedica VTM fails to cure such inspection shortcoming, or remove or resolve such hold or disciplinary action in such a manner that the Ximedica VTM facility passes re-inspection by the FDA or government authority and/or is free of the hold or disciplinary action, in good standing with FDA or such other government authority, and is lawfully able to and does resume timely and conforming manufacture and delivery of OptiNose’s LDSAs DSAs requirements in accordance with this Agreement within thirty days of such original inspection, or imposition of the hold or disciplinary action; or (c) by providing Ximedica VTM written notice if Ximedica VTM fails to gain recommendation for approval by FDA to manufacture LDSAs DSAs in accordance with this Agreement (with such recommendation being either unqualified or with any qualifications resolved to FDA’s acknowledged satisfaction) in a manner that does not delay either (i) approval by the FDA of the New Drug Application filed by OptiNose for Finished Product with the FDA, or (ii) the ability of OptiNose to begin commercial manufacture of LDSAs immediately upon such approval by the FDA. Section 15.02 Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within [***] days after receipt of written notice of such breach. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Section 15.03 Upon expiration or termination of this Agreement for any reason: (a) OptiNose shall have the right at any time after a notice of termination has been given or an event has occurred which, with the passage of time, will cause this Agreement to terminate to [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. require XimedicaVTM, as soon as reasonably practicable and in no more than [***] business days from the effective date of termination, to make available for removal by OptiNose or its designee [***]: (i) all LDSAsDSAs, all MaterialInventory, all partially completed LDSAsDSAs, all Deliverables and all OptiNose Information ([***]), and (ii) all OptiNose Equipment. All Upon payment, as applicable, all of the foregoing items for removal shall be made available at the facility, [***], claims and encumbrances, and Ximedica VTM shall provide [***] cooperation and assistance to OptiNose upon OptiNose’s written request [***] in transitioning the manufacture of LDSAs DSAs and related services under this Agreement to an alternate supplier. [***]. (b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, (ii) if the other party requests, use [***] efforts to permanently erase all of the other party’s Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that OptiNose may retain copies of any Confidential Information of Ximedica VTM incorporated in the Deliverables or to the extent necessary to allow it to make full use of the LDSAs DSAs and any Deliverables; and provided further, however, that Ximedica VTM shall retain such documents and tangible materials as are required to be maintained by Ximedica VTM under Law. (c) In no event shall OptiNose be liable for [***]. Section 15.04 The rights and obligations of the parties set forth in this Section 15.04 and Article I, Sections 5.01, 5.03, 5.04, 5.05, 5.06 and 6.01(e), Article IX, Article X, Article XI, Article XII, Article XIII, Section 15.03, Article XVI, Article XVII, XVI and Article XIXXVIII, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. For purposes of clarity, in no event shall any termination or expiration of this Agreement excuse either party from any breach or violation of this Agreement or other obligation that occurred prior to such termination or expiration and, in each such case, full legal and equitable remedies shall remain available to address such issues.

Termination Effect of Termination. Section 15.01 OptiNose, in its sole discretion, may terminate this Agreement: (a) at any time without cause, by providing at least [***] prior 12.01 This Agreement shall not be terminated except upon the written notice to Ximedica; (b) by providing Ximedica written notice if Ximedica fails an inspection or suffers a hold, 483, warning letter, or other disciplinary action by the FDA or any other government authority and Ximedica fails to cure such inspection shortcoming, or remove or resolve such hold or disciplinary action in such a manner that the Ximedica facility passes re-inspection by the FDA or government authority and/or is free agreement of the hold parties or disciplinary action, in good standing with FDA or such other government authority, and is lawfully able to and does resume timely and conforming manufacture and delivery of OptiNose’s LDSAs requirements in accordance with this Agreement within thirty days of such original inspection, or imposition of the hold or disciplinary action; or (c) by providing Ximedica written notice if Ximedica fails to gain recommendation for approval by FDA to manufacture LDSAs in accordance with this Agreement (with such recommendation being either unqualified or with any qualifications resolved to FDA’s acknowledged satisfaction) in a manner that does not delay either (i) approval by the FDA of the New Drug Application filed by OptiNose for Finished Product with the FDA, or (ii) the ability of OptiNose to begin commercial manufacture of LDSAs immediately upon such approval by the FDA. Section 15.02 12.01. Either party may terminate this Agreement, effective upon written notice to the other party (the “"Defaulting Party”"), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within [***] thirty (30) days after receipt of written notice of such breach. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business 10 days or is not dismissed or vacated within forty-five 60 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Section 15.03 12.02 Upon expiration or termination of this Agreement for any reason: (a) OptiNose Service Provider shall have the right at any time after a notice of termination has been given or an event has occurred which, with the passage of time, will cause this Agreement to terminate to [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. require Ximedica, as soon as reasonably practicable and in no more than [***] business days from the effective date of termination, to make available for removal by OptiNose or its designee [***]: (i) all LDSAs, all Material, all partially completed LDSAs, promptly deliver to Aerex all Deliverables (whether complete or incomplete) for which Aerex has paid and all OptiNose Information [***]Aerex Materials, and (ii) all OptiNose Equipment. All of the foregoing items for removal shall be made available promptly remove any Service Provider Equipment located at the facilityAerex's premises, [***], claims and encumbrances, and Ximedica shall (iii) provide [***] reasonable cooperation and assistance to OptiNose Aerex upon OptiNose’s Aerex's written request [***] and at Aerex's expense in transitioning the manufacture of LDSAs and related services under this Agreement Services to an alternate supplier. [***]Service Provider, and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided. (b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s 's Confidential Information, (ii) if the other party requests, use [***] efforts to permanently erase all of the other party’s 's Confidential Information from its computer systems, systems and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that OptiNose Aerex may retain copies of any Confidential Information of Ximedica Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the LDSAs Services and any Deliverables; and provided further, however, that Ximedica shall retain such documents and tangible materials as are required to be maintained by Ximedica under Law. (c) In no event shall OptiNose Aerex be liable for [***]any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement. Section 15.04 12.03 The rights and obligations of the parties set forth in this Section 15.04 12.03 and Article I, Sections 5.01Article VII, 5.03, 5.04, 5.05, 5.06 and 6.01(e)Article VIII, Article IX, Article X, Article XI, Article XII, Article XIII, Section 15.03, Article XVI, Article XVII12.02, and Article XIXXV, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. For purposes of clarity, in no event shall any termination or expiration of this Agreement excuse either party from any breach or violation of this Agreement or other obligation that occurred prior to such termination or expiration and, in each such case, full legal and equitable remedies shall remain available to address such issues.