Provision Language
10. Expiration and Termination
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10.2 Termination of Agreement for Breach by a Party
10.2.1 AlCana or UBC Breach. If AlCana or UBC materially breaches any representation, warranty, term or condition of this Agreement or the Supplemental Agreement and fails to remedy such material breach within [**] days after receipt of notice in writing of such material breach from Alnylam, then Alnylam, at its option and in addition to any other remedies that Alnylam may have in law or in equity, may (a) terminate this Agreement or the Research Program with respect to the breaching Party by sending written notice of such termination to all the Parties or (b) exercise its right of offset pursuant to Section 11.5.
10.2.2 Alnylam Breach. If Alnylam materially breaches any representation, warranty, term or condition of this Agreement or the Supplemental Agreement and fails to remedy such material breach within [**] days after receipt of notice in writing of such material breach from UBC or AlCana, then UBC and AlCana, at their option and in addition to any other remedies that such Parties may have in law or in equity, may terminate this Agreement or the Research Program by sending written notice of such termination to Alnylam.
10.2.3 Notwithstanding the provisions of Section 10.2.2, if Alnylam has failed to meet its diligence obligations as provided in Section 8.3 (as such obligations may be modified after discussion of the Parties pursuant to Section 8.3), and Alnylam fails to remedy any such failure within the cure period set forth above in this Section 10.2.2, then as an exclusive remedy for such failure, UBC shall have the right to convert the Alnylam Sublicense (and the Tekmira License) into a non–exclusive license, and shall grant to AlCana an irrevocable, perpetual, royalty–free, non–exclusive license under the AlCana Collaboration IP. In such event, the terms of Section 8.4 (Compensation) shall remain unaffected.
10.3 Termination for Insolvency
10.3.1 AlCana Insolvency. With written notice to AlCana, this Agreement may be terminated by Alnylam with respect to AlCana upon the filing or institution of bankruptcy, reorganization, liquidation, receivership, insolvency, arrangement or winding up proceedings with respect to AlCana (which can include, without limitation, proceedings commenced under the Companies Creditors Arrangement Act or upon appointment of an interim receiver or receiver, and/or the appointment of a Trustee in Bankruptcy or upon further order of a court of competent jurisdiction), or upon an assignment by AlCana of a substantial portion of its assets for the benefit of creditors; provided, however, that in the event of any involuntary bankruptcy or receivership proceeding such right to terminate shall only become effective if AlCana consents to the involuntary bankruptcy or receivership or such proceeding is not dismissed within ninety (90) days after the filing thereof (or within such longer period during the pendency of any appeal from any order refusing or granting any such dismissal); provided, that if at any time following such termination Alnylam or its Related Parties continues to develop and sell Licensed Products, then the terms of Section 8.4 (Compensation) shall survive such termination and continue to apply during the applicable Royalty Term.
10.3.2 Alnylam Insolvency. With written notice to all Parties, this Agreement may be terminated by AlCana or UBC as to itself upon the filing or institution of bankruptcy, reorganization, liquidation, receivership, insolvency or winding up proceedings with respect to Alnylam, or upon an assignment of a substantial portion of the assets for the benefit of creditors by Alnylam; provided, however, that in the event of any involuntary bankruptcy or receivership proceeding such right to terminate shall only become effective if Alnylam consents to the involuntary bankruptcy or receivership or such proceeding is not dismissed within ninety (90) days after the filing thereof (or within such longer period during the pendency of any appeal from any order refusing or granting any such dismissal).
10.4 Termination of Research Program
10.4.1 Withdrawal of Principal Investigator. If Principal Investigator is unable to continue to conduct research or otherwise perform his obligations under this Agreement in connection with the Research Program, or if Principal Investigator’s employment with UBC is terminated, and in either case a suitable, mutually acceptable replacement is not found, then either Alnylam or UBC may terminate the Research Program as to UBC only, upon thirty (30) days prior written notice to all the Parties.
10.4.2 Withdrawal of AlCana Key Scientists. If either [**] (each, an “AlCana Key Scientist”) is unable to continue to conduct research in connection with the Research Program, or if an AlCana Key Scientist’s employment with AlCana is terminated, then Alnylam may terminate the Research Program as to AlCana only, upon thirty (30) days’ prior written notice to AlCana and UBC.
10.4.3 AlCana or UBC Breach of Research Program Obligation. Notwithstanding the provisions of Section 10.2.1, if UBC or AlCana fails to use diligent efforts to conduct the Research Program, or if AlCana or UBC materially breaches any term or condition of this Agreement with respect to the Research Program and fails to remedy such failure to use diligent efforts or material breach within [**] days after receipt of notice in writing of such material breach from Alnylam, then Alnylam, at its option and in addition to any other remedies that Alnylam may have in law or in equity, may terminate the Research Program (but not the Agreement) with respect to the breaching Party by sending written notice to all the other Parties.
10.4.4 Alnylam Breach of Research Program Obligation. Notwithstanding the provisions of Section 10.2.2, if Alnylam materially breaches any term or condition of this Agreement with respect to the Research Program and fails to remedy such material breach within [**] days after receipt of notice in writing of such material breach from UBC or AlCana, then either UBC or AlCana, at its option and in addition to any other remedies that such Party may have in law or in equity may terminate the Research Program (but not the Agreement), as to itself by sending written notice to all the other Parties.
10.4.5 Mutual Agreement. The Parties, in consultation with Principal Investigator and each of the other Parties, may agree to terminate the Research Program if, for scientific reasons, the original objectives of the Research Program are not met or capable of being met within a reasonable period.
10.4.6 AlCana Assignment. In the event of an assignment by AlCana pursuant to Section 13.3, Alnylam may terminate the Research Program upon thirty (30) days’ prior written notice to AlCana.
10.5 Elective Termination. Alnylam shall have, at any time after the expiration of the Research Term, the right to terminate this Agreement and/or the Alnylam Sublicense upon thirty (30) days prior written notice to UBC and AlCana, provided that if at any time following such termination Alnylam or its Related Parties continue to develop and sell Licensed Products then the terms of Section 8.4 (Compensation) shall survive such termination and shall continue to apply during the applicable Royalty Term, and provided further that nothing in this Section 10.5 shall by implication or otherwise be construed as granting any right or license to Alnylam to continue to develop and sell Licensed Products after termination of this Agreement.
13. Miscellaneous
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13.3 Agreement Assignment. Except as expressly provided in this Agreement, neither this Agreement, nor any rights or obligations hereunder, may be transferred or assigned, in whole or in part, by any Party without the prior written consent of the other Parties. However, each of Alnylam and AlCana (each, an “Assigning Party”) may transfer or assign this Agreement, in whole or in part, without the prior written consent of any other Party, to an Affiliate of the Assigning Party, or in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates; provided, that all obligations of the Assigning Party are assumed by the assignee under an assignment and assumption agreement in a form approved by UBC within [**] days of completion of such merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates. Any transfer or assignment of its interest in UBC Controlled IP by UBC or AlCana within the Field of Use shall be expressly subject to the Licenses.