MATERIALS
(INCLUDING SAMPLES OF COMPOUNDS AND MATERIALS USED IN THE PREPARATION OF
COMPOUNDS) CONTROLLED BY ISIS THAT ARE [***] FOR BMS TO PERFORM THE ACTIVITIES
OTHERWISE ASSIGNED TO ISIS WITH RESPECT TO THIS AGREEMENT, PROVIDED HOWEVER,
THAT BMS MAY NOT EXERCISE THIS RIGHT UNLESS (I) ISIS IS GIVEN [***] MONTHS PRIOR
WRITTEN NOTICE BY BMS OF BMS' INTENT TO EXERCISE ITS RIGHTS HEREUNDER, STATING
THE REASONS AND JUSTIFICATION FOR SUCH BREACH AND RECOMMENDING STEPS WHICH ISIS
SHOULD TAKE, AND (II) ISIS HAS NOT USED GOOD FAITH COMMERCIALLY REASONABLE
EFFORTS DURING THE [***] MONTH PERIOD FOLLOWING SUCH NOTICE TO DILIGENTLY REMEDY
SUCH BREACH AND PERFORM ITS OBLIGATIONS TO BMS WITH RESPECT TO ISIS' PERFORMANCE
OF ACTIVITIES UNDER THE RESEARCH PLAN.
BMS' RIGHTS UNDER THIS SECTION 10.2
SHALL BE LIMITED TO THE PERFORMANCE OF
36
SUCH ACTIVITIES THAT ARE NECESSARY OR REASONABLY USEFUL FOR, AND SOLELY FOR THE
PURPOSES ORIGINALLY LICENSED HEREUNDER TO, BMS TO ENJOY THE BENEFIT OF THE
LICENSES GRANTED HEREUNDER WITH RESPECT TO THE COMPOUNDS AND PRODUCTS, AND ANY
MATERIALS AND ISIS KNOW-HOW [***] PURSUANT TO THIS SECTION 10.2 SHALL BE USED
SOLELY FOR SUCH PURPOSE.
BMS SHALL BE ENTITLED TO SEEK SPECIFIC PERFORMANCE
WITH RESPECT TO THE REMEDY DESCRIBED IN THIS SECTION 10.2 AS SET FORTH IN
SECTION 13.4, AND ISIS HEREBY STIPULATES TO THE FAIRNESS AND REASONABLENESS OF
SUCH A REMEDY AND COVENANTS NOT TO ALLEGE OR ASSERT, NOR TO ALLOW ANY OF ITS
AFFILIATES TO ASSERT, NOR FURTHER TO CAUSE OR SUPPORT ANY OTHER THIRD PARTIES TO
ASSERT, THAT SUCH REMEDY IS INAPPROPRIATE OR UNENFORCEABLE OR ILLEGAL IN ANY
WAY.
FOR PURPOSES OF CLARIFICATION, IF BMS EXERCISES ITS RIGHTS UNDER THIS
SECTION 10.2(A), EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, OR AS
OTHERWISE DETERMINED BY AN ARBITRATOR UNDER SECTION 13.4, ALL OTHER PROVISIONS
OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ARTICLE 5) WILL REMAIN IN FULL
FORCE AND EFFECT.
(B)
FOR THE PURPOSES OF THIS AGREEMENT, (1)
"CHANGE OF CONTROL" OF
ISIS MEANS THAT DURING THE TERM (I) ISIS SHALL HAVE BECOME AN AFFILIATE
CONTROLLED BY AN ENTITY THAT IS A DRUG COMPANY, (II) ANY SALE, LEASE, EXCHANGE
OR OTHER TRANSFER (IN ONE TRANSACTION OR A SERIES OF RELATED TRANSACTIONS) OF
ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF ISIS SHALL HAVE OCCURRED TO A DRUG
COMPANY, OR (III) ANY DRUG COMPANY (WHETHER INDIVIDUALLY OR AS PART OF A GROUP)
SHALL HAVE BECOME THE OWNER, DIRECTLY OR INDIRECTLY, OF VOTING SECURITIES
ENTITLED TO CAST MORE THAN FIFTY PERCENT (50%) OF THE VOTES IN THE ELECTION OF
DIRECTORS OF ISIS, AND (2) "DRUG COMPANY" MEANS ANY ENTITY THAT CONDUCTS ANY
RESEARCH AND/OR DEVELOPMENT ACTIVITIES, OR THAT MANUFACTURES, PROMOTES, MARKETS,
DISTRIBUTES AND/OR SELLS ANY PRODUCTS, IN THE BIOTECHNOLOGY OR PHARMACEUTICAL
INDUSTRY.
ARTICLE 11 -
INDEMNIFICATION, INSURANCE AND LIMITATION OF LIABILITY
SECTION 11.1
INDEMNIFICATION OF ISIS.
BMS AGREES TO DEFEND ISIS, ITS
AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, AND
THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS (COLLECTIVELY, THE "ISIS
INDEMNITEES"), AND SHALL INDEMNIFY AND