EXTEND ONLY
WITHIN THAT COUNTRY OR COUNTRIES, THE NON-BREACHING PARTY MAY TERMINATE THE
LICENSE ONLY WITH RESPECT TO THE COUNTRY OR COUNTRIES WHERE SUCH DEFAULT HAS
OCCURRED.
NOTHING IN THIS SECTION 12.3 SHALL LIMIT ANY REMEDIES OTHERWISE
AVAILABLE TO EITHER PARTY.
(D)
WAIVER BY EITHER PARTY OF ANY EVENT OR SUCCESSION OF EVENTS
GIVING RISE TO THE RIGHT OF TERMINATION WILL NOT DEPRIVE THE WAIVING PARTY OF
THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 12.3 ON THE BASIS OF
ANY SUBSEQUENT EVENT GIVING RISE TO SUCH RIGHT.
***Confidential Treatment Requested
41
12.4
RIGHTS AND OBLIGATIONS UPON TERMINATION FOR CAUSE
(A)
UPON ANY TERMINATION BY METABASIS UNDER SECTION 6.1 OR SECTION
12.3 WITH RESPECT TO A PARTICULAR COUNTRY OR COUNTRIES, ALL LICENSES AND OTHER
RIGHTS GRANTED TO SCHERING PURSUANT TO ARTICLE II WILL TERMINATE PURSUANT TO
SECTION 12.5.3 WITH RESPECT TO SUCH COUNTRY OR COUNTRIES.
UPON SUCH
TERMINATION, THE PROGRAM TRANSFER PROVISIONS WILL APPLY WITH RESPECT TO SUCH
COUNTRY OR COUNTRIES ONLY.
(B)
UPON ANY TERMINATION BY SCHERING UNDER SECTION 12.3, SCHERING
IN ITS SOLE OPTION AND DISCRETION MAY IN SUCH TERMINATION NOTICE ELECT TO EITHER
(A) TERMINATE THIS AGREEMENT IN ITS ENTIRETY IN WHICH CASE ALL LICENSES GRANTED
HEREUNDER SHALL CEASE WITH IMMEDIATE EFFECT; OR (B) CONTINUE TO EXERCISE THE
LICENSES GRANTED TO SCHERING IN WHICH CASE THE FOLLOWING TERMS SHALL APPLY:
(I)
ANY LICENSES GRANTED BY SCHERING TO METABASIS (OTHER THAN THOSE SET
FORTH IN SECTION 8.4(D), WHICH LICENSES SHALL CONTINUE IN FULL FORCE AND EFFECT)
WILL TERMINATE AND REVERT TO SCHERING;
(II)
THE LICENSES GRANTED BY METABASIS TO SCHERING UNDER ARTICLE II WILL
REMAIN IN EFFECT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, INCLUDING SCHERING'S
OBLIGATION TO PAY METABASIS THE ROYALTIES AS SET FORTH IN SECTION 4.3 AND THE
MILESTONE PAYMENTS AS SET FORTH IN SECTION 4.2, PROVIDED THAT SUCH LICENSE SHALL
HENCEFORTH BE FREELY SUB-LICENSABLE AND THE RESTRICTIONS ON SUB-LICENSING IN
SECTION 2.2 SHALL NO LONGER APPLY AND PROVIDED FURTHER THAT SCHERING SHALL HAVE
THE RIGHT TO OFFSET THE FULL AMOUNT OF DAMAGES IT HAS SUFFERED AS A RESULT OF
METABASIS' BREACH AGAINST ANY ROYALTIES OR MILESTONE PAYMENTS THAT WOULD
OTHERWISE BE PAYABLE IN ACCORDANCE WITH SECTION 4.3 OR 4.2;
(III)
THE PROVISIONS OF SECTION 2.7 (NON-COMPETITION) SHALL CONTINUE TO
APPLY;
(IV)
SCHERING SHALL CONTINUE TO HAVE THE RIGHT TO HANDLE AND DEFEND THE
LICENSED PATENTS AND SCHERING PATENTS AS SPECIFIED IN ARTICLE VIII;
(V)
SCHERING WILL HAVE NO FURTHER OBLIGATION TO DISCLOSE ANY CONFIDENTIAL
INFORMATION TO METABASIS AND SCHERING MAY REQUEST THE IMMEDIATE RETURN OR
DESTRUCTION OF ANY CONFIDENTIAL INFORMATION ALREADY DISCLOSED TO METABASIS; AND
(VI)
SCHERING SHALL HAVE NO FURTHER OBLIGATIONS AND METABASIS WILL HAVE NO
FURTHER RIGHTS UNDER SECTION 5.1, 5.2, AND 5.3; AND
(VII)
EXCEPT AS AMENDED AS DESCRIBED ABOVE, THE RIGHTS AND OBLIGATIONS OF
SCHERING AND METABASIS UNDER THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND
EFFECT.
42
12.5
SCHERING TERMINATION WITHOUT CAUSE
12.5.1
Upon [***] written notice to Metabasis, Schering may in its sole
discretion terminate this Agreement,