Common use of Termination upon Material Breach Clause in Contracts

Termination upon Material Breach. Material failure by a Party to comply with any of its obligations contained herein shall entitle the Party not in default to give to the Party in default written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party to make good or otherwise cure such default, and stating the non-defaulting Party’s intention to terminate this Amended and Restated License Agreement if such default is not cured. If such default is not cured within sixty (60) days after the date the Default Notice was sent, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that in the event that as a result of such resolution, the Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party.

Termination upon Material Breach. Material failure by a Party to comply with any of its obligations contained herein shall entitle the Party not in default to give to the Party in default written notice (a “Default Notice”) specifying the nature of the defaultdefault in reasonable detail, requiring such defaulting Party to make good or otherwise cure such default, and stating the non-defaulting Party’s intention to terminate this Amended and Restated License Research Agreement if such default is not cured. If such default is not cured within sixty (60) days after the date the Default Notice was sent, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Research Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Research Agreement by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.712.7; provided further that in the event that as a result of such resolution, the Disputing Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Research Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Research Agreement by written notice of termination to the defaulting Disputing Party.

Termination upon Material Breach. Material failure by a Party to comply with any of its obligations contained herein shall entitle the a Party not in default and injured by such material failure to give to the a Party in default written notice (a “Default Notice”) specifying the nature of the defaultdefault in reasonable detail, requiring such defaulting Party to make good or otherwise cure such default, and stating the such non-defaulting Party’s intention to terminate this Amended and Restated License Agreement if such default is not cured. If such default is not cured within sixty (60) days after the date the Default Notice was sent, then the such non-defaulting Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Disputing Party provides written notice thereof to the other Party that provided the Default Notice before the expiration of such sixty (60) day cure period, then the Disputing Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.711.9; provided further that in the event that as a result of such resolution, the Disputing Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default that provided the Default Notice shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Disputing Party. A copy of any and all written notices given by any Party to any other Party pursuant to this Section 10.4 shall also be given to the third Party to this Agreement.

Termination upon Material Breach. Material failure by If a Party to comply with breaches any of its material obligations contained herein shall entitle under this Agreement, the Party not in default to may give to the breaching Party in default a written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party it to make good or otherwise cure such defaultbreach, and and, if desired, stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default breach is not cured. If such default breach is not capable of being cured, or is capable of being cured but nonetheless has not within sixty (60) 60 days after the date the Default Notice was sentreceipt of such notice been cured, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and (in addition to any and not in lieu of all other remedies available rights and remedies) be entitled to it by law or in equity, to at its option either (a) terminate this Amended and Restated License Agreement immediately by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party, or (b) continue this Agreement in full force and effect and seek any legal or equitable remedies that the non-breaching Party before may have. Notwithstanding the expiration foregoing provisions, in the event of a good-faith dispute as to whether any alleged breach is in fact a breach, termination under this Section 10.2 in respect of such sixty alleged breach shall not take effect unless and until (60y) such dispute is finally resolved (by the final unappealable decision of a court or arbitrator or otherwise) in favor of the Party alleging the breach or (z) the breaching Party’s denial that the alleged breach is in fact a breach ceases to be in good faith. In case of a breach of an obligation to pay money, which obligation to pay is not disputed in good faith, the cure period shall be 15 days instead of 60 days. The Parties agree that any failure by Coronado to pay when due 100% of such portion of any amount of money owing from Coronado to Licensor that is not disputed in good faith by Coronado (subject to the 15-day cure period, then the Disputing Party ) shall have the right, prior conclusively be deemed to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that in the event that as constitute a result of such resolution, the Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party“material” breach.

Termination upon Material Breach. Material failure by (a) If a Party to comply with any commits a material breach of its obligations contained herein shall entitle this Agreement, the other Party not in default to give may provide to the alleged breaching Party in default a written notice (a “Default Notice”) specifying the nature of the defaultbreach, requiring such defaulting the alleged breaching Party to make good or otherwise cure such defaultbreach, and stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default breach is not cured. If such default breach is not cured within sixty ninety (6090) days after the date the Default Notice was sentreceipt of such notice, then subject to Section 14.2(b), the Party not in default shall be entitled, without prejudice to any of its other rights conferred on it by under this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting other Party; provided, however, that if the cause of the material breach is non-payment of the amounts due under this Agreement, then the cure period for such non-payment shall be fifteen (15) days from the date of notice of material breach by the non-breaching Party. (b) If the alleged breaching Party receiving such Default Notice (disputes in good faith the “Disputing Party”) has existence or materiality of a reasonable basis for disputing that it is breach specified in default and such Party provides written a notice thereof to provided by the other Party before in accordance with Section 14.2(a), and such alleged breaching Party provides the expiration other Party notice of such sixty dispute within fifteen (6015) day cure perioddays of the date of the notice provided by the other Party in accordance with Section 14.2(a), then the Disputing non-breaching Party shall will not have the rightright to terminate this Agreement under Section 14.2(a) unless and until (i) the arbitrators, prior in accordance with Section 14.2(c), have determined that the alleged breaching Party has materially breached this Agreement (an “Arbitral Decision”), and (ii) the alleged breaching Party has failed to cure such breach within ninety (90) days following such Arbitral Decision (except to the expiration extent such breach involves the failure to make a payment when due, which breach must be cured within fifteen (15) days following such an Arbitral Decision). The Arbitral Decision will include a description of what is required to cure such breach. If the arbitrators determine that a Party should be regarded as the prevailing Party, then such prevailing Party in such arbitration shall be reimbursed by the other Party for all of such sixty prevailing Party’s expenses related to such arbitration proceeding. It is understood and agreed that during the pendency of such dispute, all of the terms and conditions of this Agreement will remain in effect. (60c) day periodThe Arbitral Decision shall be reached, to submit such dispute for resolution and the arbitration proceeding shall be conducted, in accordance with the provisions Commercial Arbitration Rules and Supplementary Procedures for Large Complex Disputes of the American Arbitration Association. The number of arbitrators shall be three, one of whom shall be appointed by each of the parties and the third of whom shall be selected by mutual agreement of the co-arbitrators with the input of the parties, within 30 days of the selection of the second arbitrator and thereafter by the American Arbitration Association. The seat of the arbitration will be New York, New York. The arbitration award rendered by the arbitrators shall be final and binding on the parties. Judgment on the award may be entered in any court having jurisdiction thereof. (d) The Parties agree that termination pursuant to Section 10.7; provided further that in the event that as 14.2(a) is a result of such resolution, the Party receiving such Default Notice is found remedy to be in default invoked only if the breach cannot be adequately remedied through a combination of specific performance and such default is not cured within forty-five the payment of money damages. (45e) days after the date The right of such resolution, then the a Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement Agreement, as provided in this Article 14, shall not be affected in any way by written notice of termination its waiver or failure to the defaulting Partytake action with respect to any prior default or breach. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH THREE ASTERISKS (***), HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Termination upon Material Breach. Material failure (a) Failure by a Party to comply with any of its material obligations contained herein shall entitle the Party not in default to give to the Party in default written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party it to make good or otherwise cure such default, and stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default is not cured. If such default is not cured within sixty (60) days after the date of such notice (or, if such default cannot be cured within such sixty (60) day period, if the Default Notice was sentParty in default does not commence and diligently continue actions to cure such default), then the Party not in default shall be entitled, without prejudice to any of its other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting PartyAgreement; provided, however, that if such right to terminate shall be stayed in the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure periodevent that, then the Disputing Party shall have the right, prior to the expiration of during such sixty (60) day period, the Party alleged to submit such have been in default shall have initiated dispute for resolution proceedings in accordance with Section 9.11 with respect to the provisions alleged default, which stay shall last so long as the initiating Party diligently and in good faith pursues the prompt resolution of Section 10.7; such proceedings, and provided further that in the event that as a result of such resolution, the Party receiving such Default Notice is found to be in default and if such default is not cured within fortyby Warnxx-five (45) days after the date of such resolutionXxxxxxx xxx is limited to a default with respect to obligations as to particular Compounds, then Axys may not terminate the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License entire Agreement but may terminate the Agreement, and all the rights of Warnxx-Xxxxxxx, xxly with respect to such Compounds. (b) The right of a Party to terminate this Agreement, as provided above, shall not be affected in addition any way by its waiver or failure to take action with respect to any prior default. A Party may waive its right to terminate this Agreement with respect to a particular default, provided that any such waiver shall not constitute a waiver of, and such Party shall retain all rights to pursue, any and all other remedies available to it by may have at law or in equity, to terminate this Amended and Restated License Agreement equity of such default by written notice of termination to the defaulting other Party.

Termination upon Material Breach. Material failure by (a) If either Party commits a Party to comply with any material breach of its obligations contained herein shall entitle the Party not in default to give to the Party in default written notice (a “Default Notice”) specifying the nature of the defaultthis Agreement, requiring such defaulting Party to make good or otherwise cure such default, and stating the non-defaulting Party’s intention breaching Party shall have the right to terminate this Amended give written notice to the breaching Party specifying the claimed particulars of such breach, and Restated License Agreement if in the event such default is not cured. If such default material breach is not cured within sixty (60) [***] days after such notice, the date non-breaching Party shall have the Default Notice was sent, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, right thereafter to terminate this Amended and Restated License Agreement immediately by giving written notice of termination to the defaulting Partybreaching Party to such effect; provided, however, that if such breach is capable of being cured but cannot be cured within such [***] day period and the breaching Party receiving initiates actions to cure such Default Notice (breach within such period and thereafter diligently pursues such [***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. actions, the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing breaching Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that additional period as is reasonable in the event that as a result circumstances to cure such breach. Any termination by any Party under this Clause and the effects of such resolution, the Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default termination provided herein shall be entitled, without prejudice to any damages or other rights conferred on legal or equitable remedies to which it by this Amended and Restated License Agreement, and in addition to any may be entitled from the other remedies available to it by law Party. (b) Either HGS or in equity, to NVS may terminate this Amended and Restated License Agreement by on written notice of termination if an Insolvency Event occurs in relation to the defaulting other Party. In any event when a Party first becomes aware of the likely occurrence of any Insolvency Event in regard to that Party, it shall promptly so notify the other Party in sufficient time to give the other Party sufficient notice to protect its interests under this Agreement.

Termination upon Material Breach. Material failure by (a) If a Party to comply with any commits a material breach of its obligations contained herein shall entitle this Agreement, the other Party not in default to may give to the breaching Party in default a written notice (a “Default Notice”) specifying the nature of the defaultbreach, requiring such defaulting Party to make good or otherwise cure such default[***], and stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default is not cured[***]. If such default breach is not cured within sixty (60) days [***] after the date receipt of such notice by the Default Notice was sentbreaching Party, then the other Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, entitled to terminate this Amended and Restated License Agreement immediately by written notice of termination to the defaulting ​ ​ breaching Party. Notwithstanding the foregoing, BioInvent shall have the right to terminate this Agreement, at BioInvent’s discretion, [***] basis should CASI breach its diligence obligations under Section 4.2 or Section 6.2, and no Development activity pursuant to the CASI Development Plan has been undertaken with respect to a Licensed Product by CASI, its Affiliate or Sublicensee for a period [***], provided such inactivity is not (i) imposed by a Regulatory Authority or due to inactivity of a Regulatory Authority, including due to waiting for a regulatory decision or feedback from a Regulatory Authority; provided(ii) a result of a change in Applicable Laws; (iii) due to an event of force majeure; or (iv) caused, howeverdirectly or indirectly, that by BioInvent, its Third Party licensees or sublicensees, or an acquirer of BioInvent. (b) Notwithstanding Section 13.3(a), if the allegedly breaching Party receiving in good faith disputes such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default material breach and such Party provides written notice thereof of that dispute to the other Party before within the expiration applicable period set forth in Section 13.3(a), the matter shall be addressed under the dispute resolution provisions in Article 14, and the termination shall not become effective unless and until it has been determined under Article 14 that the allegedly breaching Party is in material breach of this Agreement and has failed to cure such breach within the time period provided in Section 13.3(a) following such determination. It is understood and acknowledged that during the pendency of such sixty (60) day cure perioda dispute, then all of the Disputing Party terms and conditions of this Agreement shall have remain in effect and the right, prior Parties shall continue to the expiration perform all of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that in the event that as a result of such resolution, the Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Partytheir respective obligations hereunder.

Termination upon Material Breach. Material failure by Subject to Section 4.2, if PSC or any Affiliate of PSC, on the one hand, or any Trading Party on the other, fails to discharge a Party material obligation or to comply with correct a material default hereunder or under any of its obligations contained herein shall entitle Trading Agreement, the Party not in default to other may give to the Party in default written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party to make good material obligation or otherwise cure such default, material default and stating the non-defaulting Party’s intention indicating an intent to terminate this Amended and Restated License Agreement if such the material obligation is not discharged or the material default is not curedcorrected. If The Party receiving such default is not cured within sixty notice shall have thirty (6030) days after from the date the Default Notice was sent, then the Party not in default shall be entitled, without prejudice of receipt of such notice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law discharge such material obligation or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Partycorrect such material default; provided, however, that if with respect to any failure to discharge a payment obligation hereunder or under any of the Trading Agreements, or to correct a payment default, the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing Party shall have five (5) business days to correct such failure or default. If such material obligation is not discharged or such material default is not corrected by the rightend of the applicable period set forth immediately above, this Agreement will automatically terminate; provided, however, that with respect to any material defaults other than payment defaults, if, prior to the expiration of such sixty (60) day the applicable cure period, the defaulting party has made and is continuing to submit make, good faith efforts to cure the default, in the reasonable judgment of the non-defaulting party, then the defaulting party shall be permitted an additional thirty (30) days to cure the default. The Parties agree that if any Trading Party breaches its obligations under Section 2.1 by inadvertently making non-material trades in violation of Section 2.1 it may cure such dispute for resolution breach by paying to PSC and its Affiliates an amount equal to the fees paid to third parties in respect of such trades. The Parties further agree that any improper termination of any Trading Agreement (as finally determined in accordance with the provisions of Section 10.7; provided further that in the event that as a result terms of such resolution, the Party receiving Trading Agreement) by PSC or any affiliate of PSC shall constitute a material default under such Default Notice is found to be in default and such default Trading Agreement which is not cured within fortycapable of cure. The non-five (45) days after the date of such resolution, then the Party not in default defaulting Party's obligations under this Agreement shall be entitled, without prejudice to suspended during any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination period where the defaulting Party has not cured such a material default to the extent that such non-defaulting PartyParty reasonably believes that continuing to perform its obligations under this Agreement would constitute a violation of any Applicable Law.

Termination upon Material Breach. Material failure by a Party to comply with any of its obligations contained herein shall entitle the Party not in default to give to the Party in default written notice (a “Default Notice”) specifying the nature of the defaultdefault in reasonable detail, requiring such defaulting Party to make good or otherwise cure such default, and stating the non-defaulting Party’s intention to terminate the defaulting Party’s rights under this Amended and Restated License Agreement if such default is not cured. If such default is not cured within sixty (60) days after the date the Default Notice was sent, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate the defaulting Party’s rights under this Amended and Restated License Agreement by written notice of termination to the defaulting Party; provided, however, that if the defaulting Party presents evidence within five (5) days before the expiration of such sixty (60) day cure period of its diligent efforts to effect a cure within such sixty (60) days, but such a cure has not been effected, the non-defaulting Party may not terminate the defaulting Party’s rights under this Agreement until such diligent efforts have ceased; provided further, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.714.6; provided further that in the event that as a result of such resolution, the Disputing Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate the defaulting Party’s rights under this Amended and Restated License Agreement by written notice of termination to the Disputing Party. In the event that the non-defaulting Party terminates this Agreement in accordance with this Section 13.2, the rights of the non-defaulting Party, and the obligations of the defaulting Party, shall continue in full force and effect until the expiration of this Agreement.

Termination upon Material Breach. Material failure by If a Party to comply with breaches any of its material obligations contained herein shall entitle under this Agreement including but not limited to either Party breaching its obligations under Section 3.5, (“Non-Compete”) and under Article V (“Financial Provisions”) the Party not in default to may give to the breaching Party in default a written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party it to make good or otherwise cure such defaultbreach, and and, if desired, stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default breach is not cured. If such default The Parties agree that in the event a material breach is not cured, the first remedy shall be to refer the matter to the JSC for resolution. If the referral to the JSC does not ultimately resolve the matter, i.e., if such breach is not capable of being cured, or is capable of being cured but nonetheless has not within sixty ninety (6090) days after the date the Default Notice was sentreceipt of such notice been cured, then the Party not in default shall (in addition to and not in lieu of all other available rights and remedies) be entitledentitled to at its option either (a) terminate this Agreement immediately by written notice to the breaching Party or (b) continue this Agreement in full force and effect and seek any legal or equitable remedies that the non-breaching Party may have. To the extent that there may arise specific instances wherein even if AUM promptly notifies or share issues with Licensor, pertaining to issues AUM may confront in future clinical development or payment obligations, concerning matters which may or may not be deemed material breaches, if Licensor does not agree or if there is no mutual agreement, the matter shall be referred to the JSC for its interpretation as to whether or not said specific instances represents material breaches. Likewise, to the extent that there may arise specific instances wherein if AUM does not promptly notify or share issues with Licensor, pertaining to issues AUM may confront in future clinical development or payment obligations, which may or may not be deemed material breaches, if AUM does not agree or if here is no mutual agreement, the matter shall be referred to the JSC for its interpretation as to whether or not said specific instances represents material breaches. The Parties acknowledge and agree that the Parties shall make Commercial Reasonable Efforts to fulfill its obligation to continue to pursue the development of the Licensed Product and/or Licensed Technology and therefore has not de- prioritized the Licensed Product and/or Licensed Technology. Pursuant to Section 4.8 of this Agreement, if both Parties’ Senior Officers are unable to reach agreement on any matter referred to them which may or may not be a deemed material breach, within twenty (20) Business Days after such matter is so referred (or such longer period as both Senior Officers may agree upon), then AUM will have the final decision-making authority with respect to all matters in the Field and in the Territory, and Licensor will have the final decision-making authority with respect to all matters outside the Territory. If there is any conflict between the final decision which Parties are not able to resolve in good faith, Parties shall submit the dispute pursuant to Section 11.2 of this Agreement. That said, each Party agrees that certain breaches of this agreement by the other Party may result in irreparable harm to the first Party, the extent of which would be difficult and/or impractical to assess, and that monetary damages would be insufficient to compensate for such breach. Accordingly, the first Party shall be entitled to seek immediate equitable and other provisional relief, including, without limitation, specific performance of this Agreement and a temporary restraining order and/or preliminary and/or permanent injunction, as a remedy for such breach in addition to any and all other remedies available to a Party at law or in equity and without prejudice to any such other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party before the expiration of such sixty (60) day cure period, then the Disputing Party shall have the right, prior to the expiration of such sixty (60) day period, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that in the event that as a result of such resolution, the Party receiving such Default Notice is found to be in default and such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Partyremedies.

Termination upon Material Breach. Material failure by (a) If a Party to comply with breaches any of its material obligations contained herein shall entitle under the Agreement, the Party not in default to may give to the breaching Party in default a written notice (a “Default Notice”) specifying the nature of the default, requiring such defaulting Party it to make good or otherwise cure such defaultbreach, and stating the non-defaulting Party’s its intention to terminate this Amended and Restated License Agreement if such default is not cured. If such default breach is not cured within sixty *** (60or, with respect to breach of a payment obligation under this Agreement, ***). If such breach is not cured within *** (or, with respect to breach of a payment obligation under this Agreement, ***) days after the date the Default Notice was sentreceipt of such notice, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, entitled to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Party; provided, however, that if the Party receiving such Default Notice (the “Disputing Party”) has a reasonable basis for disputing that it is in default and such Party provides written notice thereof to the other Party. (b) In the event that Merck fails to fulfill its obligations under Section 3.14(a) (and does not cure such failure as provided in Section 10.5(a)), Lpath’s sole and exclusive remedy shall be to terminate this Agreement as provided in Section 10.5(a) above, provided that if such breach only relates to one or more specific countries, such termination shall only be with respect to such countries. The foregoing shall not be construed to release Merck with respect to the obligations set forth in Section 10.7 (other than Section 10.7(c)) or Section 10.8. (c) Any dispute regarding an alleged material breach of this Agreement shall be resolved in accordance with Article 11 hereof. In the event that the Party before that has allegedly materially breached this Agreement disputes such breach and the expiration resulting termination of such sixty (60) day cure periodthis Agreement, then any consequences of termination described in this Article 10 shall only apply from and after such time as such termination has been upheld in a final judgment from which no appeal can be taken, or that is unappealed with the Disputing time allowed for appeal, or such time as the Party allegedly in material breach is no longer disputing such termination. (d) In the event Merck has the right to terminate this Agreement under Section 10.5(a) and it has been determined in a final judgment from which no appeal can be taken, or that is unappealed within the time allowed for appeal, that Lpath has breached a material obligation of this Agreement, Merck may elect not to terminate this Agreement, and Merck shall have the right, prior to the expiration of such sixty (60) day periodat its choice, to submit such dispute for resolution in accordance with the provisions of Section 10.7; provided further that in the event that as a result of such resolutioneither (i) enforce against Lpath separately, or (ii) offset against its financial obligations hereunder, the Party receiving amount of any damages resulting from such Default Notice is found material breach by Lpath that are awarded to be in default and Merck pursuant to such default is not cured within forty-five (45) days after the date of such resolution, then the Party not in default shall be entitled, without prejudice to any other rights conferred on it by this Amended and Restated License Agreement, and in addition to any other remedies available to it by law or in equity, to terminate this Amended and Restated License Agreement by written notice of termination to the defaulting Partyfinal judgment . ***CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.