TO THE OMITTED PORTIONS.
40
FDA OF SUCH NON-COMPLIANCE, OR THE PARTIES REASONABLY AGREE THAT LB WILL NOT BE
ABLE TO BECOME COMPLIANT, THEN IMCLONE MAY, AS ITS SOLE REMEDY, TERMINATE THIS
AGREEMENT. IN THE EVENT THAT SUCH NON-COMPLIANCE HAS NOT BEEN RESOLVED, FOR ANY
REASON, FOR 180 DAYS FROM RECEIVING NOTICE FROM THE FDA OF SUCH NON-COMPLIANCE,
THIS AGREEMENT SHALL TERMINATE AUTOMATICALLY, UNLESS IT IS MUTUALLY AGREED BY
BOTH PARTIES IN WRITING TO EXTEND THE AGREEMENT FOR AN ADDITIONAL SPECIFIED TIME
PERIOD.
17.2.
TERMINATION WITHOUT CAUSE.
IMCLONE SHALL BE ENTITLED TO TERMINATE
THIS AGREEMENT AT ANY TIME WITHOUT CAUSE WITH 30 DAYS NOTICE IN WRITING.
IF
IMCLONE TERMINATES THIS AGREEMENT PURSUANT TO THIS SECTION 17.1, THEN WITHIN 30
DAYS OF RECEIPT OF THE NOTICE IMCLONE SHALL PAY TO LB THE BALANCE DUE OF THE
BATCH PRICE(S) FOR ANY UNDELIVERED OR UNORDERED BATCHES REQUIRED TO MAKE UP THE
MINIMUM ORDER BY IMCLONE IN ACCORDANCE WITH SECTION 6.3.
17.3.
This Section left intentionally blank.
17.4.
Termination for Cause.
LB and ImClone may each terminate this
Agreement, as their sole remedy, with 30 days notice in writing to the other
upon the occurrence of any of the following events:
17.4.3.
IF THE OTHER MATERIALLY BREACHES THIS AGREEMENT, AND (IN THE CASE OF
A BREACH CAPABLE OF REMEDY) SUCH BREACH IS NOT REMEDIED WITHIN NINETY (90) DAYS
OF THE RECEIPT BY THE OTHER OF NOTICE IDENTIFYING THE BREACH AND REQUIRING ITS
REMEDY OR, IF SUCH BREACH IS INCAPABLE OF REMEDY WITHIN NINETY (90) DAYS, THE
OTHER PARTY FAILS TO COMMENCE ACTIONS WITHIN SUCH NINETY (90) DAYS TO REMEDY
SUCH BREACH PURSUANT TO A PLAN ACCEPTABLE TO THE COMPLAINING PARTY. IN THE EVENT
OF TERMINATION BY LB PURSUANT TO THIS
[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
41
SECTION 17.4.3, IMCLONE SHALL PAY LB THE TERMINATION FEE AS SET FORTH IN SECTION
17.1.; OR
17.4.4.
IF THE OTHER CEASES FOR ANY REASON TO CARRY ON BUSINESS, DISSOLVES,
LIQUIDATES, WINDS UP, OR FILES OR IS PETITIONED INTO BANKRUPTCY, LIQUIDATION,
REHABILITATION OR DISSOLUTION OR BECOMES INSOLVENT OR FAILS GENERALLY TO PAY ITS
DEBTS OR OBLIGATIONS OR A PETITION IS FILED SEEKING THE APPOINTMENT OF OR
17.5.
EFFECT OF TERMINATION GENERALLY.
UPON THE TERMINATION OF THE
AGREEMENT FOR WHATEVER REASON:
17.5.1.
LB SHALL PROMPTLY RETURN ALL IMCLONE INFORMATION TO IMCLONE (TO THE
EXTENT LEGAL OR REGULATORY REQUIREMENTS PERMIT) AND SHALL DISPOSE OF, OR RETURN
TO IMCLONE THE IMCLONE MATERIALS AND ANY MATERIALS DERIVED THEREFROM, AS
DIRECTED BY IMCLONE;
17.5.2.
IMCLONE SHALL PROMPTLY RETURN TO LB (TO THE EXTENT LEGAL AND
REGULATORY REQUIREMENTS PERMIT) ALL LB INFORMATION IT HAS RECEIVED FROM LB;
17.5.3.
SUBJECT TO ANY RIGHTS GRANTED TO IMCLONE OR LB AS A RESULT OF ANY
WRITTEN AGREEMENT BETWEEN THE PARTIES, IMCLONE SHALL NOT THEREAFTER USE OR
EXPLOIT THE LB PATENT RIGHTS OR THE LB INFORMATION IN ANY WAY WHATSOEVER AND LB
SHALL