ONE COMPOUND OR PRODUCT FOR
EACH COLLABORATION GENE TARGET. ANY SUCH TERMINATION WILL BE LIMITED IN FORCE
AND EFFECT TO THE COUNTRY OR COUNTRIES AND PRODUCTS TO WHICH SUCH BREACH
RELATES. FOR CLARITY, IT IS UNDERSTOOD AND ACKNOWLEDGED THAT COMMERCIALLY
REASONABLE EFFORTS IN THE DEVELOPMENT OF A PRODUCT IN A PARTICULAR COUNTRY MAY
INCLUDE SEQUENTIAL IMPLEMENTATION OF CLINICAL TRIALS AND/OR INTERVALS BETWEEN
CLINICAL TRIALS FOR DATA INTERPRETATION AND CLINICAL PROGRAM PLANNING AND
APPROVAL, TO THE EXTENT SUCH IMPLEMENTATION IS CONSISTENT WITH THE SCIENTIFIC,
TECHNICAL AND COMMERCIAL FACTORS RELEVANT TO DEVELOPMENT OF SUCH PRODUCT IN SUCH
COUNTRY.
(B)
IT IS UNDERSTOOD AND ACKNOWLEDGED
THAT IF OMI (BY ITSELF OR THROUGH ITS AFFILIATES OR LICENSEES) USES COMMERCIALLY
REASONABLE EFFORTS TO DEVELOP A PRODUCT IN EACH AND EVERY MAJOR MARKET COUNTRY,
OMI WILL BE DEEMED TO BE IN COMPLIANCE WITH ITS OBLIGATION UNDER SECTION 5.1 TO
USE COMMERCIALLY REASONABLE EFFORTS TO DEVELOP A PRODUCT WITH RESPECT TO ALL
COUNTRIES IN THE WORLD. TERMINATION UNDER THIS SECTION 10.4 WILL APPLY TO ALL
COMPOUNDS AND PRODUCTS THAT TARGET THE APPLICABLE COLLABORATION GENE TARGET, BUT
ONLY FOR THE AFFECTED COUNTRY OR COUNTRIES.
(C)
IF OMI DISPUTES IN GOOD FAITH THE
EXISTENCE OR MATERIALITY OF AN ALLEGED BREACH SPECIFIED IN A NOTICE PROVIDED BY
ISIS PURSUANT TO SECTION 10.4(A), AND PROVIDES NOTICE TO ISIS OF SUCH DISPUTE
WITHIN THE [***] FOLLOWING SUCH NOTICE PROVIDED BY ISIS, ISIS WILL NOT HAVE THE
RIGHT TO TERMINATE THIS AGREEMENT UNLESS AND UNTIL THE EXISTENCE OF SUCH
MATERIAL BREACH OR FAILURE BY OMI HAS BEEN DETERMINED IN ACCORDANCE WITH SECTION
14.4 AND OMI FAILS TO CURE SUCH BREACH WITHIN [***] FOLLOWING SUCH
DETERMINATION. IT IS UNDERSTOOD AND ACKNOWLEDGED THAT DURING THE PENDENCY OF
SUCH A DISPUTE, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL REMAIN IN
EFFECT AND THE PARTIES WILL CONTINUE TO PERFORM ALL OF THEIR RESPECTIVE
OBLIGATIONS HEREUNDER.
SECTION 10.5
CONSEQUENCES OF TERMINATION.
10.5.1
LICENSES. UPON TERMINATION OF THIS
AGREEMENT IN ITS ENTIRETY BY EITHER PARTY PURSUANT TO THIS ARTICLE 10, THE
LICENSES GRANTED BY ISIS TO OMI HEREUNDER WILL TERMINATE.
10.5.2
RETURN OF INFORMATION AND MATERIALS.
UPON TERMINATION OF THIS AGREEMENT IN ITS ENTIRETY BY EITHER PARTY PURSUANT TO
THIS ARTICLE 10, THE PARTIES WILL RETURN (OR DESTROY, AS DIRECTED BY THE OTHER
PARTY) ALL DATA, FILES, RECORDS AND OTHER MATERIALS CONTAINING OR COMPRISING THE
OTHER PARTY'S CONFIDENTIAL INFORMATION. NOTWITHSTANDING THE FOREGOING, THE
PARTIES WILL BE PERMITTED TO RETAIN ONE COPY OF SUCH DATA, FILES, RECORDS, AND
OTHER MATERIALS FOR ARCHIVAL PURPOSES.
SECTION 10.6
ACCRUED RIGHTS; SURVIVING OBLIGATIONS.
33
10.6.1
ACCRUED RIGHTS. TERMINATION OR
EXPIRATION OF THIS AGREEMENT FOR ANY REASON WILL BE WITHOUT PREJUDICE TO ANY
RIGHTS OR FINANCIAL COMPENSATION THAT WILL HAVE ACCRUED TO THE BENEFIT OF A
PARTY PRIOR TO SUCH TERMINATION OR EXPIRATION. SUCH TERMINATION OR EXPIRATION
WILL NOT RELIEVE A PARTY FROM OBLIGATIONS THAT ARE EXPRESSLY INDICATED TO
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. FOR CLARIFICATION, NO
MILESTONE PAYMENTS OR ROYALTY PAYMENTS UNDER ARTICLE 5 WILL BE PAYABLE