JV)
PROVIDED FOR IN THIS AGREEMENT OR THE OPERATING AGREEMENT, AS APPLICABLE, OR
UNDER THE BMS GUARANTEE AGREEMENT OR GILEAD GUARANTEE AGREEMENT, AS APPLICABLE.
87
(D)
THE PARTIES ACKNOWLEDGE THAT EACH MEMBER
PARTY HAS ENTERED INTO THIS AGREEMENT AND THE OPERATING AGREEMENT IN RELIANCE ON
THE OTHER MEMBER PARTY'S CONTINUED COMPLIANCE WITH, AND PERFORMANCE OF, ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OPERATING AGREEMENT.
ACCORDINGLY, EACH
MEMBER PARTY AGREES THAT ANY MATERIAL DEFAULT MAY CAUSE SEVERE AND IRREPARABLE
DAMAGE TO THE NON-BREACHING MEMBER PARTY OR THE JV AS APPLICABLE, FOR WHICH
MONEY DAMAGES WOULD REPRESENT AN INSUFFICIENT REMEDY.
IN THE EVENT OF ANY SUCH
MATERIAL DEFAULT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
THE NON-BREACHING MEMBER PARTY SHALL BE AUTHORIZED AND ENTITLED TO SEEK FROM ANY
ARBITRATOR UNDER SECTION 15.6 THE REMEDY OF SPECIFIC PERFORMANCE WITH RESPECT TO
ANY SUCH MATERIAL DEFAULT, AS WELL AS ANY OTHER RELIEF PERMITTED BY APPLICABLE
LAW AND MAY OBTAIN THAT RELIEF WITHOUT MAKING A SHOWING OF THE INSUFFICIENCY OF
MONEY DAMAGES.
THE BREACHING MEMBER PARTY AGREES TO WAIVE ANY REQUIREMENT THAT
THE NON-BREACHING MEMBER PARTY POST BOND AS A CONDITION FOR OBTAINING ANY SUCH
RELIEF.
14.5
TERMINATION UPON GENERIC LAUNCH.
EITHER MEMBER PARTY (THE
"CONTINUING MEMBER PARTY") MAY TERMINATE THIS AGREEMENT BY NOTICE TO THE OTHER
MEMBER PARTY (THE "TERMINATED MEMBER PARTY") IN THE EVENT THAT THERE IS THE
LAUNCH IN THE TERRITORY OF AT LEAST ONE (1) GENERIC VERSION OF ALL OF THE SINGLE
AGENT PRODUCTS (OR THE DOUBLE AGENT PRODUCT) OF THE TERMINATED MEMBER PARTY (A
"GENERIC VERSION LAUNCH") AND THE CONTINUING MEMBER PARTY DELIVERS NOTICE OF
TERMINATION WITHIN THIRTY (30) DAYS AFTER THE GENERIC VERSION LAUNCH.
SUCH
TERMINATION SHALL BE EFFECTIVE ON THE LAST DAY OF THE CALENDAR QUARTER IN WHICH
SUCH NOTICE IS GIVEN.
14.6
CONSEQUENCES OF TERMINATION.
(A)
TERMINATION PURSUANT TO SECTIONS 14.2, 14.3
OR 14.4(B).
IF A MEMBER PARTY TERMINATES THIS AGREEMENT PURSUANT TO SECTION
14.2, 14.3 OR 14.4(B), (I) THE LICENSE AND SUBLICENSE GRANTS AND RIGHTS OF
REFERENCE IN SECTION 6 FROM THE MEMBER PARTIES TO THE JV SHALL TERMINATE, (II)
THE RIGHTS OF REFERENCE AND LICENSE GRANTS IN SECTION 6.3(A)(1) AND 6.3(B)(1)
SHALL SURVIVE SOLELY TO THE EXTENT NECESSARY IN ORDER FOR THE LICENSEE MEMBER
PARTY TO SUPPORT THE LABELING OF ITS SINGLE AGENT PRODUCT(S) AND/OR DOUBLE AGENT
PRODUCT, AS APPLICABLE, AS APPROVED AS OF THE EFFECTIVE DATE OF SUCH
TERMINATION, (III) THE LICENSE GRANTS IN SECTION 6.3(A)(2) AND 6.3(B)(2) SHALL
SURVIVE, (IV) THE LICENSE GRANTS AND RIGHTS OF REFERENCE IN SECTION 6 FROM THE
JV TO THE MEMBER PARTIES SHALL SURVIVE UNTIL THE FIRST DATE ON WHICH THE JV HAS
BEEN DISSOLVED AND ANY AND ALL INTANGIBLE PROPERTY (AS DEFINED IN THE OPERATING
AGREEMENT) HAS BEEN DISTRIBUTED IN KIND TO THE MEMBER PARTIES PURSUANT TO
SECTION 10.2(C) OF THE OPERATING AGREEMENT, (V) UNLESS GILEAD IS THE BREACHING
MEMBER PARTY, THE LICENSES AND OTHER RIGHTS GRANTED TO GILEAD IN SECTIONS 6.2(D)
AND 6.4(D) WITH RESPECT TO THE COMBINATION PRODUCT OUTSIDE THE TERRITORY, CANADA
AND