IN CONNECTION WITH OR
AS A RESULT OF ANY ACTION CONTEMPLATED BY SECTION 9.2.1(A), WHETHER BY
SETTLEMENT OR JUDGMENT, WILL BE USED TO REIMBURSE THE PARTIES FOR THEIR
REASONABLE COSTS AND EXPENSES IN MAKING SUCH RECOVERY (WHICH AMOUNTS WILL BE
ALLOCATED PRO RATA IF INSUFFICIENT TO COVER THE TOTALITY OF SUCH EXPENSES), WITH
ANY REMAINDER IN EXCESS OF THE REASONABLE COSTS AND EXPENSES IN MAKING SUCH
RECOVERY WILL BE TREATED AS NET SALES OF AN ALICAFORSEN PRODUCT AND ROYALTIES
WILL BE DUE IN RESPECT OF SUCH NET SALES PURSUANT TO THIS AGREEMENT.
ISIS WILL
RETAIN ALL AMOUNTS IT RECOVERS ENFORCING THE ALICAFORSEN PATENTS, THE ICAM-1
SPECIFIC PATENTS, THE SECOND GENERATION ICAM-1 PRODUCT-SPECIFIC PATENTS, AND THE
ISIS CORE TECHNOLOGY PATENTS.
ARTICLE 10 -
TERM AND TERMINATION
SECTION 10.1
TERM.
THE TERM OF THIS AGREEMENT (THE "TERM") COMMENCES UPON
THE EFFECTIVE DATE AND, UNLESS EARLIER TERMINATED IN ACCORDANCE WITH THE
PROVISIONS OF THIS ARTICLE 10, WILL CONTINUE UNTIL THE EXPIRATION OF ALL
OBLIGATIONS TO PAY ROYALTIES ON ALL PRODUCTS TO ISIS.
SECTION 10.2
RIGHTS IN BANKRUPTCY OR INSOLVENCY
IF EITHER PARTY BECOMES
INSOLVENT, FILES A PETITION IN BANKRUPTCY, HAS SUCH A PETITION FILED AGAINST IT,
DETERMINES TO FILE A PETITION IN BANKRUPTCY, OR RECEIVES NOTICE OF A THIRD
PARTY'S INTENTION TO FILE AN INVOLUNTARY PETITION IN BANKRUPTCY, SUCH PARTY
IMMEDIATELY SHALL NOTIFY THE OTHER PARTY IN WRITING.
IN ADDITION TO ANY OTHER
REMEDIES AVAILABLE AT LAW OR IN EQUITY, THE OTHER PARTY (I.E., THE NON-BANKRUPT
PARTY) MAY IMMEDIATELY TERMINATE THIS AGREEMENT, IN WHOLE OR IN PART AS THE
TERMINATING PARTY MAY DETERMINE, UPON LEARNING OF ANY OF THE FOREGOING EVENTS;
PROVIDED, HOWEVER, THAT THE FINANCIAL TERMS SET FORTH IN ARTICLE 6 ABOVE WILL
REMAIN IN TACT AND WILL SURVIVE ANY SUCH TERMINATION.
THE TERMINATING PARTY
SHALL PROVIDE TO THE OTHER PARTY A WRITTEN NOTICE REGARDING THE EXTENT OF
TERMINATION. IF ISIS SEEKS TO BE OR IS INVOLUNTARILY PLACED UNDER THE PROTECTION
OF THE "BANKRUPTCY CODE" (I.E., TITLE 11, U.S. CODE) OR ITS EQUIVALENT OUTSIDE
THE USA, AND THE TRUSTEE IN BANKRUPTCY, OR ISIS AS A DEBTOR-IN-POSSESSION,
REJECTS THIS AGREEMENT, THEN ATLANTIC HEREBY ELECTS, UNDER SECTION 365(N) OF THE
BANKRUPTCY CODE, TO RETAIN ALL LICENSES OF RIGHTS TO "INTELLECTUAL PROPERTY" (AS
DEFINED UNDER SUCH BANKRUPTCY CODE) GRANTED TO IT UNDER THIS AGREEMENT, TO THE
EXTENT PERMITTED BY LAW.
AS OF THE COMMENCEMENT OF A BANKRUPTCY PROCEEDING BY
OR AGAINST ISIS, ATLANTIC IS ENTITLED TO A COMPLETE DUPLICATE OF ALL EMBODIMENTS
OF "INTELLECTUAL PROPERTY" LICENSED TO IT HEREUNDER.
TO THE EXTENT SUCH
EMBODIMENTS ARE NOT ALREADY IN ATLANTIC'S POSSESSION AS OF
17
THE COMMENCEMENT OF A BANKRUPTCY, ISIS (OR THE TRUSTEE IN BANKRUPTCY) SHALL
DELIVER SUCH EMBODIMENTS TO ATLANTIC (I) UPON ANY SUCH COMMENCEMENT OF A
BANKRUPTCY PROCEEDING, UNLESS ISIS ELECTS TO CONTINUE TO PERFORM ALL OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, OR (II) IF NOT DELIVERED UNDER (I), THEN UPON
A REJECTION OF THIS AGREEMENT (OR THE EQUIVALENT) BY OR ON BEHALF OF ISIS.
SECTION 10.3
MATERIAL BREACH.
FAILURE BY A PARTY