(THE "TERM"). THIS AGREEMENT SHALL NOT BE TERMINATED, EXCEPT IN
ACCORDANCE WITH SECTION 11.2, SECTION 11.3, OR SECTION 11.4.
11.2
TERMINATION FOR CAUSE.
IN THE EVENT OF A MATERIAL BREACH OF THIS
AGREEMENT, THE NON-BREACHING PARTY SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT
BY WRITTEN NOTICE TO THE BREACHING PARTY, IF SUCH BREACH IS NOT CURED WITHIN
NINETY (90) DAYS AFTER WRITTEN NOTICE IS GIVEN BY THE NON-BREACHING PARTY TO THE
BREACHING PARTY SPECIFYING THE BREACH.
HOWEVER, IF THE PARTY ALLEGED TO BE IN
BREACH OF THIS AGREEMENT DISPUTES SUCH BREACH AND SUBMITS SUCH DISPUTE FOR
DISPUTE RESOLUTION PURSUANT TO ARTICLE 16 WITHIN SUCH NINETY (90) DAY PERIOD,
THE NON-BREACHING PARTY SHALL NOT HAVE THE RIGHT TO TERMINATE THIS AGREEMENT
UNLESS THE DISPUTE RESOLUTION PROVISIONS OF ARTICLE 16 RESULT IN A DETERMINATION
THAT THIS AGREEMENT WAS MATERIALLY BREACHED BY THE OTHER PARTY, AND THE
BREACHING PARTY FAILS TO CURE SUCH BREACH WITHIN NINETY (90) DAYS AFTER SUCH
DETERMINATION.
11.3
ACCURAY'S RIGHT TO TERMINATE.
ALL TERMINATIONS UNDER THIS SECTION
11.3 SHALL BE SUBJECT TO DISPUTE RESOLUTION PRIOR TO TERMINATION IN THE SAME
MANNER AS TERMINATIONS FOR BREACH, AS SET FORTH IN THE LAST SENTENCE OF SECTION
11.2.
11.3.1
FOR CYBERHEART'S FAILURE TO RECEIVE FUNDING.
ACCURAY SHALL HAVE THE
RIGHT TO TERMINATE THIS AGREEMENT UPON NINETY (90) DAYS' PRIOR WRITTEN NOTICE IN
THE EVENT CYBERHEART HAS NOT RECEIVED A TOTAL OF *** IN FINANCING BY THE SECOND
(2ND) ANNIVERSARY OF THE EFFECTIVE DATE.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
35
11.3.2
FOR CYBERHEART'S FAILURE TO INCLUDE ACCURAY TECHNOLOGY IN CYBERHEART
PRODUCTS.
ACCURAY SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IMMEDIATELY
IF CYBERHEART OR ITS DESIGNEE AS DESCRIBED IN SECTION ,
(A) DEVELOPS
AND/OR MARKETS A
CYBERHEART PRODUCT THAT DOES NOT CONTAIN ACCURAY TECHNOLOGY
AND THAT IS NOT COVERED BY AN ACCURAY PATENT OR (B) DOES NOT DEVELOP AND DOES
NOT MARKET A PRODUCT THAT (I) DOES CONTAIN ACCURAY TECHNOLOGY, (II) IS COVERED
BY AN ACCURAY PATENT (III) IS FOR USE WITH A CYBERKNIFE SYSTEM, OR (IV) IS FOR
USE WITH A CYBERHEART SYSTEM THAT DERIVES FROM A CYBERKNIFE SYSTEM AND USES
ACCURAY TECHNOLOGY OR IS COVERED BY AN ACCURAY PATENT.
11.3.3
FOR CYBERHEART'S FAILURE TO USE REASONABLE COMMERCIAL EFFORTS TO
DEVELOP AND SELL CYBERHEART PRODUCTS.
IF CYBERHEART (INCLUDING, FOR CLARITY,
ANY SUCCESSOR OR ASSIGNEE OF CYBERHEART IN CONNECTION WITH A CHANGE OF CONTROL)
FAILS TO USE REASONABLE COMMERCIAL EFFORTS TO DEVELOP AND/OR SELL CYBERHEART
PRODUCTS THAT (I) INCORPORATE ACCURAY TECHNOLOGY, (II) ARE COVERED BY ACCURAY
PATENTS OR (III) ARE FOR USE WITH CYBERKNIFE SYSTEMS, ACCURAY MAY TERMINATE THIS
AGREEMENT UPON SIXTY (60) DAYS' PRIOR WRITTEN NOTICE.
11.4
TERMINATION FOR CONVENIENCE BY CYBERHEART. CYBERHEART SHALL HAVE
THE RIGHT TO TERMINATE THIS AGREEMENT, IN WHOLE OR IN PART, FOR CONVENIENCE UPON
THIRTY (30) DAYS' PRIOR