by Metabasis of any such proposed publication concerning
the HepDirect Technology generally or concerning a compound which may become a
Substituted Compound and provided further that (a) Schering may delay such
publication for a reasonable period of time, not to exceed three (3) months, to
allow for any Patent Rights to be filed; and (b) Schering may request that any
Schering Confidential Information contained within such draft publication is
removed.
ARTICLE XII
TERM AND TERMINATION
12.1
TERM
(A)
THE TERM OF THIS AGREEMENT (THE TERM) COMMENCES AS OF THE
AMENDED CLOSING DATE AND, UNLESS SOONER TERMINATED IN ACCORDANCE WITH THIS
AGREEMENT, WILL EXPIRE IN EACH COUNTRY IN THE TERRITORY WITH RESPECT TO A
PRODUCT UPON THE OCCURRENCE OF THE LATER OF
(I)
THE EXPIRATION OR INVALIDATION OF THE LAST TO EXPIRE OR BE
INVALIDATED OF THE LICENSED PATENTS WHICH BUT FOR THIS AGREEMENT WOULD BE
INFRINGED BY THE SALE OF SUCH PRODUCT USING SUCH LICENSED PATENTS IN SUCH
COUNTRY,
(II)
[***] AFTER THE FIRST COMMERCIAL SALE IN SUCH COUNTRY OF SUCH
PRODUCT.
***Confidential Treatment Requested
40
(B)
UPON EXPIRATION OF THE TERM IN A COUNTRY WITH RESPECT TO ANY
PRODUCT, SCHERING WILL HAVE A PERPETUAL, FULLY PAID-UP, FULLY AND FREELY
SUB-LICENSABLE, ROYALTY FREE, EXCLUSIVE LICENSE WITHIN THE FIELD IN SUCH COUNTRY
TO EXERCISE THE RIGHTS GRANTED IN ARTICLE II RELATING TO THE LICENSED COMPOUND
AND/OR PRODUCT.
12.2
[INTENTIONALLY OMITTED]
12.3
TERMINATION FOR CAUSE
(A)
EITHER PARTY (AS SUCH, THE NON-BREACHING PARTY) MAY TERMINATE
THIS AGREEMENT UPON WRITTEN NOTICE WITH IMMEDIATE EFFECT IF:
(I)
THE OTHER PARTY (AS SUCH, THE BREACHING PARTY) HAS NOT COMPLIED WITH
ANY OF ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT; AND
(II)
THE NON-BREACHING PARTY GIVES WRITTEN NOTICE TO THE BREACHING PARTY
SPECIFYING THE NATURE OF THE DEFAULT, REQUIRING THE BREACHING PARTY TO CURE THE
DEFAULT, AND REFERRING TO THE NON-BREACHING PARTY'S RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SECTION 12.3; AND
(III)
THE DEFAULT IS NOT CURED WITHIN [***] AFTER THE RECEIPT OF SUCH
WRITTEN NOTICE (OR, IN THE EVENT THAT CURE CANNOT BE EFFECTED WITHIN SUCH [***]
PERIOD, REASONABLE EFFORTS BY THE BREACHING PARTY ARE NOT COMMENCED AND
CONTINUING THROUGHOUT SUCH PERIOD AND THE DEFAULT IS NOT FINALLY CURED WITHIN
[***] AFTER THE RECEIPT OF SUCH NOTICE).
(B)
A PARTY ENTITLED TO TERMINATE THIS AGREEMENT UNDER THIS SECTION
12.3 MAY ELECT TO TERMINATE WITH RESPECT TO A PARTICULAR COUNTRY OR COUNTRIES IN
THE TERRITORY RATHER THAN THE ENTIRE TERRITORY BY GIVING WRITTEN NOTICE OF SUCH
ELECTION IN THE NOTICE OF INTENT TO TERMINATE THE LICENSE.
IF A PARTY ELECTS TO
TERMINATE WITH RESPECT TO A PARTICULAR COUNTRY, THE LICENSES AND OTHER RIGHTS
GRANTED TO SCHERING PURSUANT TO ARTICLE II WITH RESPECT TO THAT PARTICULAR
COUNTRY WILL TERMINATE.
(C)
NOTWITHSTANDING SECTION 12.3(A), IF THE DEFAULT OF THE
BREACHING PARTY GIVING RISE TO THE NON-BREACHING PARTY'S RIGHT OF TERMINATION IS
OF A NON-FINANCIAL NATURE AND IS LIMITED TO A PARTICULAR COUNTRY OR COUNTRIES,
OTHER THAN A MAJOR MARKET COUNTRY, AND THE RESULTS OF THAT DEFAULT