ANY PERIOD OF THE IMMEDIATELY PREVIOUS FOUR
CONSECUTIVE AGREEMENT QUARTERS, PROMOTION NET SALES FOR SUCH PERIOD ARE LESS
THAN $***, EITHER PARTY SHALL
33
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ON 120 DAYS' PRIOR WRITTEN NOTICE TO
THE OTHER PARTY, WHICH NOTICE MAY NOT BE GIVEN BEFORE THE THIRD ANNIVERSARY OF
THE PROMOTION COMMENCEMENT DATE.
(C)
IF A PARTY DESIRES TO EXERCISE ITS OPTION TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SECTION 8.2 OR DEMAND ANY *** OR CURE PURSUANT TO
SECTION 8.2(A), IT MUST GIVE WRITTEN NOTICE TO THE OTHER PARTY WITHIN 60 DAYS
AFTER RECEIVING THE REPORT OF THE AGREEMENT QUARTER OR AGREEMENT MONTH GIVING
RISE TO THE RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 8.2.
SECTION 8.3
TERMINATION FOR CAUSE.
EITHER PARTY MAY TERMINATE THIS
AGREEMENT, EFFECTIVE AT ANY TIME AFTER PROVIDING SIXTY DAYS WRITTEN NOTICE AND
AN OPPORTUNITY TO CURE DURING SUCH SIXTY DAY PERIOD (NINETY DAYS IN THE CASE OF
A BREACH BY DEPOMED OF SECTION 6.1), IN THE EVENT OF A MATERIAL FAILURE OF THE
OTHER PARTY TO COMPLY WITH ITS MATERIAL OBLIGATIONS CONTAINED IN THIS
AGREEMENT.
IF SUCH CURE IS EFFECTED, SUCH NOTICE WITH RESPECT TO SUCH
TERMINATION SHALL BE NULL AND VOID.
SECTION 8.4
TERMINATION FOR BANKRUPTCY OR FORCE MAJEURE.
TO THE
EXTENT PERMITTED BY LAW, EACH PARTY WILL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT IMMEDIATELY UPON NOTICE TO THE OTHER PARTY, IN THE EVENT OF EITHER OF
THE FOLLOWING:
(A)
THE ENTRY OF AN ORDER FOR RELIEF UNDER THE UNITED STATES
BANKRUPTCY CODE (OR ANY CORRESPONDING REMEDY UNDER SUCCESSOR LAWS) AGAINST THE
OTHER PARTY; THE FILING OF A PETITION BY OR AGAINST THE OTHER PARTY UNDER ANY
BANKRUPTCY, INSOLVENCY OR SIMILAR LAW (WHICH PETITION IS NOT DISMISSED WITHIN
SIXTY DAYS AFTER FILING), EXCEPT CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
OR ANY SUCCESSOR STATUTE THAT PERMITS A CORPORATION TO CONTINUE ITS OPERATION
WHILE PROTECTING IT FROM CREDITORS; THE APPOINTMENT OF A RECEIVER FOR THE OTHER
PARTY'S BUSINESS OR PROPERTY; OR THE OTHER PARTY'S MAKING OF A GENERAL
ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS; OR
(B)
ANY FORCE MAJEURE EVENT AFFECTING THE OTHER PARTY BEYOND THE OTHER
PARTY'S CONTROL WHICH LASTS FOR A PERIOD OF AT LEAST SIX MONTHS AND WHICH IS OF
SUFFICIENT INTENSITY TO INTERRUPT OR PREVENT THE CARRYING OUT OF SUCH OTHER
PARTY'S MATERIAL OBLIGATIONS UNDER THIS AGREEMENT DURING SUCH PERIOD.
Notwithstanding the occurrence of any of the event specified in subsection (a)
of this Section 8.4, the parties acknowledge and agree that, to the extent
Section 365(n) of the United States Bankruptcy Code applies to this Agreement,
the non-insolvent party may elect to retain and exercise the rights granted to
it hereunder with respect to the intellectual property owned or controlled by
the insolvent party.
SECTION 8.5
FORCE MAJEURE.
ANY FORCE MAJEURE EVENT OF THE TYPE
DESCRIBED IN SECTION 16.7 AFFECTING A PARTY HEREUNDER SHALL ENTITLE THE OTHER
PARTY HERETO, AT ANY TIME AFTER THE EXPIRY OF THE PERIOD OF SIX MONTHS