UNLESS THE BREACHING PARTY CURES SUCH BREACH
DURING SUCH NOTICE PERIOD.
NOTWITHSTANDING THE FOREGOING, IF SUCH BREACH, BY
ITS NATURE, IS INCURABLE, THE NON-BREACHING PARTY MAY TERMINATE THIS AGREEMENT
IMMEDIATELY UPON WRITTEN NOTICE TO THE BREACHING PARTY.
(C)
TERMINATION FOR BANKRUPTCY.
A PARTY MAY
TERMINATE THIS AGREEMENT SHOULD THE OTHER PARTY COMMIT AN ACT OF BANKRUPTCY, BE
DECLARED BANKRUPT, VOLUNTARILY FILE OR HAVE FILED AGAINST IT A PETITION FOR
BANKRUPTCY OR REORGANIZATION UNLESS SUCH PETITION IS DISMISSED WITHIN [*****] OF
FILING, ENTER INTO A PROCEDURE OF WINDING UP TO DISSOLUTION, OR SHOULD A TRUSTEE
OR RECEIVER BE APPOINTED FOR ITS BUSINESS ASSETS OR OPERATIONS. ALL RIGHTS AND
LICENSES GRANTED UNDER OR PURSUANT TO THIS AGREEMENT ARE, AND SHALL OTHERWISE BE
DEEMED TO BE, FOR THE PURPOSES OF SECTION 365(N) OF TITLE 11, U.S. CODE
("BANKRUPTCY CODE") LICENSE RIGHTS TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER
SECTION 101(60) OF THE BANKRUPTCY CODE. THE PARTIES AGREE THAT ANY PARTY, AS A
LICENSEE HEREUNDER, SHALL RETAIN AND MAY FULLY EXERCISE ALL OF ITS RIGHTS AND
ELECTIONS UNDER THE BANKRUPTCY CODE OR ANY RELEVANT FOREIGN EQUIVALENT THEREOF.
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
26
(D)
CHALLENGES OF PATENT RIGHTS.
IN THE EVENT
THAT LICENSEE OR ITS RELATED PARTIES (I) COMMENCE OR PARTICIPATE IN ANY ACTION
OR PROCEEDING (INCLUDING, WITHOUT LIMITATION, ANY PATENT OPPOSITION OR
RE-EXAMINATION PROCEEDING), OR OTHERWISE ASSERT IN WRITING ANY CLAIM,
CHALLENGING OR DENYING THE VALIDITY OF ANY OF THE PATENT RIGHTS LICENSED TO THE
LICENSEE HEREUNDER, OR ANY CLAIM THEREOF OR (II) ACTIVELY ASSIST ANY OTHER
PERSON IN BRINGING OR PROSECUTING ANY ACTION OR PROCEEDING (INCLUDING, WITHOUT
LIMITATION, ANY PATENT OPPOSITION OR RE-EXAMINATION PROCEEDING) CHALLENGING OR
DENYING THE VALIDITY OF ANY OF SUCH PATENT RIGHTS OR ANY CLAIM THEREOF, DYAX
WILL HAVE THE RIGHT TO GIVE NOTICE TO THE LICENSEE (WHICH NOTICE MUST BE GIVEN,
IF AT ALL, WITHIN SIXTY (60) DAYS AFTER DYAX FIRST LEARNS OF THE FOREGOING) THAT
THE RIGHTS GRANTED TO LICENSEE UNDER SUCH PATENT RIGHTS WILL TERMINATE IN
[*****] FOLLOWING SUCH NOTICE, AND, UNLESS THE LICENSEE OR ITS SUBLICENSE (AS
APPLICABLE) WITHDRAWS OR CAUSES TO BE WITHDRAWN ALL SUCH CHALLENGE(S) WITHIN
SUCH [*****] PERIOD, SUCH LICENSES WILL SO TERMINATE.
11.3
CONSEQUENCES OF TERMINATION.
(A)
TERMINATION BY DYAX FOR CAUSE.
WITHOUT
LIMITING ANY OTHER LEGAL OR EQUITABLE REMEDIES THAT DYAX MAY HAVE, IF DYAX
TERMINATES THIS AGREEMENT IN ACCORDANCE WITH SECTIONS 11.2(B) OR (C), THEN:
(I)
IF SUCH TERMINATION OCCURS BEFORE
LICENSEE'S FIRST FILING WITH ANY REGULATORY AUTHORITY OF A PROTOCOL FOR A PHASE
II CLINICAL TRIAL, THEN LICENSEE'S OBLIGATIONS UNDER SECTION 8.1 SHALL SURVIVE
FOR A PERIOD OF [*****] FOLLOWING SUCH TERMINATION;
(II)
LICENSEE SHALL AS PROMPTLY AS PRACTICABLE
TRANSFER TO DYAX OR DYAX'S DESIGNEE (A) POSSESSION AND OWNERSHIP OF ALL
GOVERNMENTAL OR REGULATORY CORRESPONDENCE, CONVERSATION LOGS, FILINGS AND
APPROVALS (INCLUDING ALL REGULATORY APPROVALS AND PRICING AND REIMBURSEMENT
APPROVALS) RELATING TO THE DEVELOPMENT, MANUFACTURE OR COMMERCIALIZATION OF ALL
LICENSED PRODUCTS, (B) COPIES OF ALL DATA, REPORTS, RECORDS