Provision Language
4.0 EXPLOITATION OF LICENSED RIGHTS
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4.5 Breach. If the Company
4.5.1 commits a misrepresentation, omission, concealment or incorrect statement of a material fact in the negotiations leading to the License Agreement in general or leading to or in the business plan in particular; or
4.5.2 breaches any representations or statements in the business plan,
then such failure is a material breach of the License Agreement which provides Canada with the discretionary election either to:
4.5.3 rescind the License Agreement and seek damages; or
4.5.4 maintain the License Agreement and seek damages alone.
15.0 TERMINATION
15.1 By Canada for Cause. The License Agreement, at the option of Canada, without prejudice to any other rights in law of equity held by Canada (including any right of indemnity), may be terminated forthwith by Canada without compensation to the Company if:
15.1.1 INSUFFICIENT EFFORTS. The Company fails to use its commercially reasonable efforts to develop or Commercialize and does not cure such failure within ninety (90) days of written notice from Canada;
15.1.2 NO PAYMENT. The Company fails to make any payment owed to Canada under the License Agreement and does not make such payment within sixty (60) days of the due date;
15.1.3 BREACH OF CONFIDENTIALITY. The Company uses or discloses Confidential Information of Canada in a manner inconsistent with its obligations under the License Agreement or fails to safeguard the Confidential Information of Canada;
15.1.4 BREACH OF BUSINESS PLAN. The Company fails, neglects, refuses or is unable to comply with the business plan created and submitted under paragraph 4.1 (Business Plan);
15.1.5 QUALITY CONTROL & AUDIT. The Company refuses, neglects or fails to meet quality standards or allow access for quality audit purposes contrary to paragraph 7.0 (Reports & Quality Control) or provide or allow the audit of the reports and records as required under Article 6.0 (Records and Audit);
15.1.6 CEASES BUSINESS. The Company ceases to actively carry on business;
15.1.7 MULTIPLE BREACHES. The Company breaches three or more provisions of the License Agreement within any consecutive twelve (12) month period, notwithstanding that such breaches were subsequently cured;
15.1.8 CROSS-DEFAULT. The Company breached a provision of another agreement with Canada that was executed with the Public Health Agency of Canada, and that breach occurred during the term of the License Agreement;
15.1.9 CRIMINAL CONVICTION. The Company was convicted of a criminal or regulatory offence, the nature of which directly or indirectly affects the ability of the Company to conduct itself hereunder or to Commercialize in an effective and timely manner, or otherwise prejudices Commercialization;
15.1.10 GENERAL BREACH. The Company commits or permits a breach of any of the other terms and conditions herein contained and does not remedy such breach within sixty (60) days after being required in writing to do so by Canada;
15.1.11 REPUDIATES. The Company expressly or implicitly repudiates the License Agreement by refusing or threatening to refuse to comply with any of the provisions of the License Agreement.
15.2 Automatic Termination. The License Agreement and all rights granted to the Company pursuant to the License Agreement shall immediately terminate and revert to Canada by operation of contract, without prejudice to any other rights in law of equity held by Canada (including any right of indemnity) and without compensation to the Company, effective the business day prior to the applicable triggering event, namely if:
15.2.1 ASSIGNMENT
(A) The Company assigns the License Agreement without the prior written consent of Canada, contrary to the provisions of paragraph 18.2 (No Assignment Without Consent); or
(B) The Company assigns this Licenses Agreement in connection with a Prohibited Entity Change of Control and Canada does not provide is consent after the consummation of such Prohibited Entity Change of Control as set forth in section 18.3(B); or
15.2.2 BANKRUPTCY. The Company becomes bankrupt or insolvent or otherwise
15.2.2.1 has a receiving or winding up order made or sought against it;
15.2.2.2 has a meeting proposed or convened, seeking or actually passing a resolution to appoint a trustee or official manager;
15.2.2.3 has a receiver, receiver-manager, liquidator, trustee in bankruptcy, custodian or any other officer with similar powers appointed for the Company or such an order is sought;
15.2.2.4 has any or all of its assets seized or otherwise attached for the benefit of creditors;
15.2.2.5 proposes or convenes a meeting to seek or passes a resolution for winding up;
15.2.2.6 takes the benefit of any statute, at the time in force, relating to bankrupt or insolvent debtors for the orderly payment of debts;
15.2.2.7 makes a general assignment for the benefit of creditors;
15.2.2.8 submits a proposal or arrangement under any debtor/creditor legislation;
15.2.2.9 is the subject of a petition or files an assignment under the Bankruptcy Act or any successor legislation; or
15.2.2.10 does or attempts anything analogous to the aforementioned events or having a substantially similar effect to any of the aforementioned events under the laws of any jurisdiction.
15.3 Termination Not A Penalty. The Company acknowledges, and is estopped from alleging otherwise, that the termination provisions in paragraph 15.2 do not constitute a penalty, and are otherwise fair, just and proportional given:
15.3.1 the nature of the Parties;
15.3.2 their respective mandates and corporate objectives;
15.3.3 the allocation of risks under the License Agreement;
15.3.4 the goals of the Parties;
15.3.5 nature of the Licensed Rights; and
15.3.6 the consequences to Canada if the Company commits the aforementioned breaches.
15.4 Procedure. Termination shall be implemented by a notice effective as of the date stated therein, but termination shall be subject to paragraph 15.6 (The Company’s Duties on Termination) and be without prejudice:
15.4.1 to the right of Canada to sue for and recover any royalties or other sums due Canada; and
15.4.2 to the remedy of either Party in respect of any previous breach of the License Agreement.