3. Representations and Due Diligence
3.04 Material Breach. Breach of any provision of Sections 3.01, 3.02 or 3.03 is a material breach of this Agreement thereby permitting University to terminate the Agreement in whole, or in part, in accordance with Section 9.02(A).
9.02 Early Termination. Notwithstanding the foregoing, all licenses granted pursuant to ARTICLE II and this Agreement will terminate as follows:
(A) Material Breach. If Licensee materially breaches this Agreement, fails to account for or make any payment to University that is required by this Agreement, fails to make any payment referred to in the Principal Terms & Milestones List, fails to meet any Milestone as set forth in the Principal Terms & Milestones List, fails to maintain insurance as required in Section 7.03 or if a Sublicensee materially breaches any of the provisions to which it is required to be bound directly to the University as set forth in Section 2.03 (a “Breaching Sublicensee”), the University will have the right, at its election, to terminate: (i) the Exclusive Period; (ii) any or all licenses granted by the University under this Agreement (including the right to sublicense); (iii) a Breaching Sublicensee’s sublicense; or (iv) this Agreement in its entirety upon thirty (30) days prior written notice, subject to the survival of the obligations set forth in Section 9.05. Termination will take effect thirty (30) days after written notice unless Licensee cures the breach within said 30–day period. University’s right to terminate in accordance with this Section 9.02(A) is in addition to, and not in lieu of, the exercise of any other right University may have for breach of this Agreement by Licensee.
(B) Insolvency, Etc. If Licensee files a petition in bankruptcy or if an involuntary petition is filed against Licensee and such petition is not dismissed within sixty (60) days, or if the Licensee will cease or suspend the conduct of its usual business or if the Licensee will become, or in light of its usual business is likely to become, insolvent and is unable to pay its debts when due, this Agreement will terminate automatically and immediately without the opportunity for cure provided in Section 9.02(A).
(C) Challenge to Validity of Patent Rights or Copyright. To the maximum extent permitted by law, if Licensee, or any of its Affiliates, files a lawsuit or otherwise challenges the validity, scope or enforceability of any of the Patent Rights, University shall have the right, at its election, at any time after the filing of said lawsuit to terminate this Agreement immediately without the opportunity for cure provided in Section 9.02(A). If any Sublicensee (or an affiliate thereof) files a lawsuit or otherwise challenges the validity, scope or enforceability of any of the Patent Rights, University shall have the right, at its election, at any time after the filing of said lawsuit to demand that Licensee terminate said agreement under which said Sublicensee takes license/rights in the Patent Rights, which termination must occur and be effective within the cure provided in Section 9.02(A). In the event that, and for any period during which University does not choose to exercise its rights to terminate this Agreement or a Sublicense pursuant to this Section 9.02(C), Licensee will pay to University two times the amounts otherwise due and payable to University under Sections 4.01(D) and 4.01(E) for the remainder of the term of this Agreement. In the event that such a patent challenge is successful, Licensee will have no right to recoup any royalties due and payable to University during the period of challenge. In the event that such a patent challenge is unsuccessful, Licensee shall also reimburse University for all University’s reasonable legal fees and expenses incurred in its defense of said challenge to the Patent Rights. This obligation to reimburse University for defense of Licensee’s unsuccessful challenge to the validity, scope or enforceability of any of the Patent Rights shall survive any termination of this Agreement. A lawsuit shall be deemed ‘unsuccessful’ for purposes of this Section 9.02(C) if: (i) the lawsuit is terminated for any reason prior to a settlement or judgment from which no appeal can be or is taken; (ii) any of the Patent Rights challenged by said lawsuit remain enforceable after any such settlement or judgment is in effect; or (iii) if Licensee would still require a license to any of the Patent Rights to sell any of its products after any such settlement or judgment is in effect.
(D) Claim of Implied License. If Licensee, or any of its Affiliates, files a lawsuit claiming, or otherwise claims or argues in writing, that Licensee is granted an implied license to any invention or patent right or copyright (other than the expressly defined Patent Rights or Copyright), this Agreement will terminate immediately and without any opportunity for cure as provided for in Section 9.02(A).
9.03 Licensee’s Right To Terminate. After the first anniversary of the Effective Date, upon sixty (60) days advanced notice, Licensee may terminate this Agreement by giving written notice to University as provided for in Section 11.07.