10. Expiration and Termination
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.
10.6 Consequences of Expiration or Termination
10.6.1 Survival. Except as otherwise set forth in this Agreement, the following provisions shall survive any expiration or termination of this Agreement for the period of time specified therein, or if not specified, then they shall survive indefinitely: Sections 2, 3.1(d), 3.4, 3.6, 7.1, 7.3, 8.2.1, 8.4.3, 8.4.4, 8.4.5, 9, 10.5, 10.6, 11, 12 and 13.
Furthermore, the terms of the Research Agreement incorporated by reference in the Supplemental Agreement shall survive termination of this Agreement solely to the extent required to implement the agreement of the parties to the Supplemental Agreement set forth in the Supplemental Agreement.
10.6.2 Termination of Research Program.
(a) Upon expiration of the Research Term or termination of the Research Program in its entirety (i) UBC and AlCana will promptly deliver to Alnylam any Program Materials and Program Technology in their possession or control and will promptly disclose, in writing, to Alnylam all Program Developments made through expiration or termination, (ii) UBC and AlCana will also submit to Alnylam a comprehensive final report within [**] days after completion (or any such termination) of the Research Program detailing the status of the Research Program and all Program Developments made thereunder as well as all Research Program funds expended, (iii) UBC and AlCana will promptly refund to Alnylam any Research Program funds remaining at the time of termination or expiration (less any non-cancelable commitments made by UBC or AlCana pursuant to the Workplan and Budget), (iv) each Party will, at the owner’s discretion, either return to each other Party or destroy all of such other Party’s Background Materials and Background Technology provided under this Agreement, and (v) the licenses granted under Article 6 shall terminate; provided, however, that clauses (i) and (ii) shall not apply in the event of any termination under Sections 10.2.2 or 10.4.4.
(b) Upon termination of the Research Program with respect to either UBC or AlCana, but not both, (i) the provisions of Section 10.6.2(a)(i) through (iv) shall apply solely to such Party, (ii) the licenses granted to such Party and by such Party under Article 6 shall terminate, and (iii) Alnylam’s obligation to pay Research Program funding to the terminated Party shall cease. The remaining Party to the Research Program and Alnylam will discuss in good faith appropriate modifications to the Workplan and Budget and overall Research Program funding commitment, it being understood that the remaining Party shall not automatically be entitled to the terminated Party’s share of Research Program funding. Furthermore, if the Research Program is terminated with respect to UBC pursuant to Section 10.4 and Alnylam and AlCana mutually agree that AlCana will assume responsibility for UBC’s obligations under the Workplan, then UBC shall (on payment to UBC of reasonable compensation) make its facilities reasonably available to AlCana for such purpose and UBC’s and AlCana’s shares of future Research Program funding under this Agreement shall be adjusted between them accordingly. At such point, AlCana will become the Payee for all purposes under this Agreement.
(c) For clarity, the terms and conditions of the Licenses and Field-Restricted Assignment shall be unaffected by any termination of the Research.
10.6.3 Termination of Agreement. If the Agreement is terminated pursuant to Sections 10.2, 10.3 or 10.5, then:
(a) the Research Term shall terminate; and
(b)the Tekmira License and the Alnylam Sublicense shall terminate; and
(c) AlCana shall have, subject to any sublicenses granted under the Alnylam Sublicense to Third Parties with respect to AlCana Collaboration IP in the Field of Use prior to the effective date of termination, including without limitation, the Tekmira Sublicense and the Protiva Sublicense (“Pre-termination Sublicenses”), without further act by UBC, an exclusive, worldwide, perpetual, irrevocable, royalty-free license to all UBC’s right, title and interest in the AlCana Collaboration IP. Any Pre-termination Sublicense shall remain in full force and effect so long as the Sublicensee is not then in breach of its sublicense agreement (or in the case of Tekmira or Protiva, any provision of this Agreement or the Supplemental Agreement by which it is bound), provided that each such Sublicensee:
(i) will agree in writing to be bound to UBC as licensor under the terms and conditions of this Agreement, the Supplemental Agreement and the Original Transaction Document to the extent they apply to the grant of such Pre-termination Sublicense, including Section 8.4 hereof; provided, however, that the Pre-termination Sublicense shall be non-exclusive to such Sublicensee notwithstanding any term to the contrary in such Pre-termination Sublicense;
(ii) will negotiate in good faith with UBC an appropriate agreement, or amendment to this Agreement, the Supplemental Agreement and/or the applicable Original Transaction Documents, to substitute itself for Alnylam as the non-exclusive licensor under terms no less favorable, in the aggregate, for UBC and AlCana than the applicable terms of this Agreement, the Supplemental Agreement and the applicable Original Transaction Documents; and
(iii) will pay all of UBC and AlCana’s legal costs that arise in connection with, and as a result of, negotiating such agreements.
(d) Alnylam will make all undisputed outstanding payments due to the Payee with respect to the Alnylam Sublicense under Section 8.4 at the time of such termination, and UBC and AlCana each shall have the right to proceed to enforce payment of all outstanding milestones, royalties or other monies owed to UBC and AlCana under this Agreement with respect to the Alnylam Sublicense at the time of such termination, and each Party may exercise any or all of the rights and remedies available under this Agreement or otherwise available bylaw or in equity, successively or concurrently, at the option of such Party, as the case may be.
(e) Within [**] days after the effective date of termination, each Receiving Party (and its Related Parties, if applicable) will deliver to the Disclosing Party all Confidential Information of the Disclosing Party in its possession or control and will cease to use the Disclosing Party’s Confidential Information; and
(f) Within [**] days after the effective date of termination, Alnylam and its Related Parties will cease to develop or make Licensed Products. Alnylam will then within [**] days from the date of termination, sell or otherwise dispose of any Licensed Product manufactured and remaining unsold, and within a reasonable period of time thereafter, make any royalty payments to Payee in the same manner specified in Section 8.4 on all Licensed Products that are sold in accordance with this Section 10.6.3.
Notwithstanding anything in this Agreement to the contrary, the Parties hereby agree that the termination consequences of this Agreement shall only apply with respect to the portion of the UBC Controlled IP defined as Schedule 1 IP in the Supplemental Agreement, and that the termination-related provisions of the applicable Original Transaction Documents shall apply to the portion of the UBC Controlled IP defined as Schedule A IP as set forth in the Supplemental Agreement.