LIQUIDATION, OR IF THE OTHER PARTY
WILL DISCONTINUE ITS BUSINESS ACTIVITIES COMPLETELY OR WITH RESPECT TO ITS
BUSINESS ACTIVITIES WHICH ARE THE SUBJECT MATTER OF THIS AGREEMENT, OR IF THE
OTHER PARTY WILL MAKE AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS; OR
9.2.3.
TERMINATION FOR MATERIAL BREACH.
THIS AGREEMENT MAY BE TERMINATED
BY EITHER PARTY UPON ANY MATERIAL BREACH OF THIS AGREEMENT BY THE OTHER PARTY;
EXCEPT THAT THE PARTY ALLEGING SUCH BREACH MUST FIRST GIVE THE OTHER PARTY
WRITTEN NOTICE THEREOF, WHICH NOTICE MUST STATE THE NATURE OF THE BREACH IN
REASONABLE DETAIL AND THE OTHER PARTY MUST HAVE FAILED TO CURE SUCH ALLEGED
BREACH WITHIN 45 DAYS AFTER RECEIPT OF THE NOTICE.
9.3.
SURVIVAL OF OBLIGATIONS AND CERTAIN RIGHTS.
9.3.1.
UPON ANY TERMINATION OF THIS AGREEMENT, BY EXPIRATION OF THE TERM
OR OTHERWISE, NEITHER PARTY WILL BE RELIEVED OF ANY OBLIGATIONS INCURRED PRIOR
TO SUCH TERMINATION.
DESPITE ANY
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed seperately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
8
TERMINATION OF THIS AGREEMENT, THE OBLIGATIONS OF THE PARTIES UNDER SECTION 1
(TO EXTENT THAT A DEFINITION IS REQUIRED TO INTERPRET AN OPERATIVE SECTION OF
THIS AGREEMENT), SECTIONS 4, 5, 6, 7, 8, 9.3, 10, 11, AND 12 AND TO THE EXTENT
APPLICABLE, THE EXHIBITS TO THIS AGREEMENT, AS WELL AS ANY OTHER PROVISIONS THAT
BY THEIR NATURE ARE INTENDED TO SURVIVE ANY TERMINATION, WILL SURVIVE AND
CONTINUE TO BE ENFORCEABLE.
9.4.
UPON ANY TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 9, CEPHEID
SHALL WITHIN 30 DAYS OF THE EFFECTIVE DATE OF SUCH TERMINATION NOTIFY IDI IN
WRITING OF THE AMOUNT OF CEPHEID SOURCED PRODUCT WHICH CEPHEID, ITS AFFILIATES
AND SUB-LICENSEES THEN HAVE COMPLETED ON HAND, THE SALE OF WHICH WOULD, BUT FOR
THE TERMINATION, BE SUBJECT TO ROYALTIES, AND CEPHEID, ITS AFFILIATES AND
SUB-LICENSEES SHALL THEREUPON BE PERMITTED DURING THE 6 MONTHS FOLLOWING SUCH
TERMINATION TO SELL THAT AMOUNT OF CEPHEID SOURCED PRODUCTS, PROVIDED THAT
CEPHEID SHALL PAY THE AGGREGATE ROYALTY THEREON AT THE CONCLUSION OF THE EARLIER
OF THE LAST SUCH SALE OR SUCH SIX-MONTH PERIOD. EXCEPT AS PROVIDED ABOVE, ALL
SUB-LICENSEES GRANTED BY CEPHEID SHALL FORTHWITH TERMINATE UPON THE TERMINATION
OF THIS AGREEMENT.
10.
REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMERS
10.1.
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES.
EACH PARTY
REPRESENTS, WARRANTS AND COVENANTS TO THE OTHER PARTY THAT:
10.1.1.
IT HAS THE CORPORATE POWER AND AUTHORITY AND LEGAL RIGHT TO ENTER
INTO THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER;
10.1.2.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF
THE TRANSACTIONS CONTEMPLATED THEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION OF THE PARTY;
10.1.3.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE BY
THE PARTY OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT DO NOT AND WILL NOT:
CONFLICT WITH, OR CONSTITUTE A BREACH OR VIOLATION OF, ANY OTHER CONTRACTUAL
OBLIGATION TO WHICH IT IS A