THE OTHER PARTY. IN SUCH NOTICE THE
NON-BREACHING PARTY WILL IDENTIFY THE ACTIONS OR CONDUCT THAT IT WISHES SUCH
PARTY TO TAKE FOR AN ACCEPTABLE AND PROMPT CURE OF SUCH BREACH (OR WILL
OTHERWISE STATE ITS GOOD FAITH BELIEF THAT SUCH BREACH IS INCURABLE); PROVIDED
THAT SUCH IDENTIFIED ACTIONS OR CONDUCT WILL NOT BE BINDING UPON THE OTHER PARTY
WITH RESPECT TO THE ACTIONS THAT IT MAY NEED TO TAKE TO CURE SUCH BREACH. IF THE
BREACH IS CURABLE, THE ALLEGEDLY BREACHING PARTY WILL HAVE [***] TO EITHER CURE
SUCH BREACH (EXCEPT TO THE EXTENT SUCH BREACH INVOLVES THE FAILURE TO MAKE A
PAYMENT WHEN DUE, WHICH BREACH MUST BE CURED WITHIN [***] FOLLOWING SUCH NOTICE)
OR, IF A CURE CANNOT BE REASONABLY EFFECTED WITHIN SUCH [***] PERIOD, TO DELIVER
TO THE NON-BREACHING PARTY A PLAN FOR CURING SUCH BREACH WHICH IS REASONABLY
SUFFICIENT TO EFFECT A CURE WITHIN A REASONABLE PERIOD. IF THE BREACHING PARTY
FAILS TO (I) CURE SUCH BREACH WITHIN THE [***] PERIOD OR (II) USE COMMERCIALLY
REASONABLE EFFORTS TO CARRY OUT THE PLAN AND CURE THE BREACH, THE NON-BREACHING
PARTY MAY TERMINATE THIS AGREEMENT ON A PRODUCT-BY-PRODUCT BASIS BY PROVIDING
WRITTEN NOTICE TO THE BREACHING PARTY.
(b)
Notwithstanding the foregoing, if the allegedly breaching Party
disputes in good faith the existence, materiality, or failure to cure of any
such breach which is not a payment breach, and provides notice to the
non-breaching Party (the "Other Party") of such dispute within such [***]
period, the Other Party will not have the right to terminate this Agreement in
accordance with this Section 10.3 unless and until it has been determined in
accordance with Section 14.4 that this Agreement was materially breached by the
allegedly breaching Party and
32
that Party fails to cure such breach within [***] following such determination.
It is understood and acknowledged that during the pendency of such a dispute,
all of the terms and conditions of this Agreement will remain in effect and the
Parties will continue to perform all of their respective obligations hereunder.
(c)
This Section 10.3 will be subject to and will not limit the
provisions of Section 10.4 and Section 10.5.
SECTION 10.4
TERMINATION BY ISIS FOR FAILURE OF OMI TO
USE COMMERCIALLY REASONABLE EFFORTS.
(A)
SUBJECT TO SECTION 10.4(B) AND
10.4(C), AT ANY TIME AFTER THE EXPIRATION OF THE COLLABORATION TERM, ISIS WILL
HAVE THE RIGHT TO TERMINATE THE LICENSE GRANTED UNDER SECTION 2.1 ON A
COUNTRY-BY-COUNTRY BASIS, IF OMI IS IN BREACH OF ITS OBLIGATIONS TO USE
COMMERCIALLY REASONABLE EFFORTS AS SET FORTH IN SECTION 5.1, PROVIDED HOWEVER,
THAT THE AGREEMENT WILL NOT SO TERMINATE UNLESS (I) OMI IS GIVEN [***] PRIOR
WRITTEN NOTICE BY ISIS OF ISIS'S INTENT TO TERMINATE, STATING THE REASONS AND
JUSTIFICATION FOR SUCH TERMINATION AND RECOMMENDING STEPS WHICH OMI SHOULD TAKE,
AND (II) OMI, OR ITS LICENSEE, HAS NOT USED GOOD FAITH COMMERCIALLY REASONABLE
EFFORTS DURING THE [***] PERIOD FOLLOWING SUCH NOTICE TO DILIGENTLY PURSUE THE
DEVELOPMENT AND/OR COMMERCIALIZATION OF AT LEAST