THE FIELD, AS A RESULT OF ANY SAFETY OR EFFICACY DATA
OBTAINED IN CONNECTION WITH THE DEVELOPMENT OF THE PRODUCT OR ANY PRODUCT
CONTAINING THE COMPOUND BY EITHER PARTY OR ITS RELATED PARTIES IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT, PROVIDED, HOWEVER, THAT THE FOREGOING CLAUSE
SHALL NOT LIMIT LIABILITY WITH RESPECT TO ANY EVENT THAT HAS BEEN CAUSED BY, OR
IS THE DIRECT RESULT OF,
THE NEGLIGENCE, RECKLESSNESS, BAD FAITH, INTENTIONAL
WRONGFUL ACTS, OMISSIONS OR VIOLATIONS OF LAW OR BREACH OF THIS AGREEMENT
COMMITTED BY THE POTENTIALLY LIABLE PARTY.
ARTICLE XI
TERM AND TERMINATION
SECTION 11.1
TERM.
UNLESS TERMINATED EARLIER IN
ACCORDANCE WITH THIS ARTICLE XI, THIS AGREEMENT SHALL REMAIN IN FORCE FOR THE
PERIOD COMMENCING ON THE EFFECTIVE DATE AND ENDING ON THE EXPIRATION OF THE LAST
ROYALTY TERM TO EXPIRE UNDER THIS AGREEMENT. (THE "TERM").
* Confidential Treatment Requested.
Omitted portions filed with the Commission.
48
SECTION 11.2
TERMINATION RIGHTS.
(A)
TERMINATION FOR CONVENIENCE.
FOVEA SHALL
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AT ANY TIME AFTER THE EFFECTIVE DATE
ON [*****] PRIOR WRITTEN NOTICE TO DYAX.
(B)
TERMINATION FOR MATERIAL BREACH.
UPON ANY
MATERIAL BREACH OF THIS AGREEMENT OR ANY SUPPLY AGREEMENT BY A PARTY (THE
"BREACHING PARTY"), THE OTHER PARTY (THE "NON-BREACHING PARTY") MAY TERMINATE
THIS AGREEMENT BY PROVIDING [*****] PRIOR WRITTEN NOTICE TO THE BREACHING PARTY
IN THE CASE OF A BREACH OF A PAYMENT OBLIGATION AND [*****] WRITTEN NOTICE TO
THE BREACHING PARTY IN THE CASE OF ANY OTHER MATERIAL BREACH.
THE TERMINATION
SHALL BECOME EFFECTIVE AT THE END OF THE NOTICE PERIOD UNLESS THE BREACHING
PARTY CURES SUCH BREACH DURING SUCH NOTICE PERIOD; PROVIDED THAT THE
NON-BREACHING PARTY MAY, BY NOTICE TO THE BREACHING PARTY, DESIGNATE A LATER
DATE FOR SUCH TERMINATION IN ORDER TO FACILITATE AN ORDERLY TRANSITION OF
ACTIVITIES RELATING TO THE PRODUCT AND SUCH LATER DATE SHALL BE THE EFFECTIVE
DATE OF SUCH TERMINATION IF THE BREACHING PARTY DOES NOT OBJECT TO SUCH LATER
DATE BY PROMPT WRITTEN NOTICE TO THE NON-BREACHING PARTY.
NOTWITHSTANDING THE
FOREGOING, (I) IF SUCH BREACH, BY ITS NATURE, IS INCURABLE, THE NON-BREACHING
PARTY MAY TERMINATE THIS AGREEMENT IMMEDIATELY UPON WRITTEN NOTICE TO THE
BREACHING PARTY AND (II) IF SUCH BREACH (OTHER THAN A PAYMENT BREACH), BY ITS
NATURE, IS CURABLE, BUT NOT WITHIN THE FOREGOING CURE PERIOD, THEN SUCH CURE
PERIOD SHALL BE EXTENDED IF THE BREACHING PARTY PROVIDES A WRITTEN PLAN FOR
CURING SUCH BREACH TO THE NON-BREACHING PARTY AND USES DILIGENT EFFORTS TO CURE
SUCH BREACH IN ACCORDANCE WITH SUCH WRITTEN PLAN; PROVIDED THAT NO SUCH
EXTENSION SHALL EXCEED NINETY (90) DAYS WITHOUT THE WRITTEN CONSENT OF THE
NON-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 OR SUCH PETITION IS FOR A REORGANIZATION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE (AS