“Conditions” means the conditions set out at Schedule 2 which must be satisfied (to the reasonable satisfaction of the Trust) at all times during the Programme.
20. DURATION AND TERMINATION
20.2 Each Party (“Terminating Party”) shall have the right to terminate this Agreement forthwith at any time upon giving written notice of termination to the other Party (the “Defaulting Party”), upon the occurrence of any of the following events:
(a) the Defaulting Party commits a breach of a material obligation set out in this Agreement which is not capable of remedy;
(b) the Defaulting Party commits a breach of a material obligation set out in this Agreement which is capable of remedy but has not been remedied within [**] Business Days of the receipt by it of a notice from the Terminating Party identifying the breach and requiring its remedy;
(c) the Defaulting Party is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
(d) a proposal is made or a nominee or supervisor is appointed for a composition in satisfaction of the debts of the Defaulting Party or a scheme or voluntary arrangement of its affairs within the meaning of the relevant bankruptcy or insolvency laws, or the Defaulting Party enters into any composition or voluntary arrangement for the benefit of its creditors, or proceedings are commenced in relation to the Defaulting Party under any law, regulation or procedure relating to there–construction, deferment or re–adjustment of all or substantially all of the Defaulting Party’s debts;
(e) the Defaulting Party takes any action, or any legal proceedings are started whether by a Third Party or not, for the purpose of the winding up or dissolution of the Defaulting Party, other than for a solvent reconstruction or amalgamation;
(f) the appointment of a liquidator, trustee, receiver, administrative receiver, receiver and manager, interim receiver custodian, sequestrator, administrator or similar officer, in respect of all or a substantial part of the assets of the Defaulting Party;
(g) an effective resolution being passed for the winding–up or entering into administration (whether out of court or otherwise) of the Defaulting Party;
(h) a distress, execution or other legal process being levied against all or substantially all of the assets of the Defaulting Party, and not being discharged or paid out in full within [**] Business Days of the commencement of each process; or
(i) the occurrence in respect of the Defaulting Party of any event in any jurisdiction to which it is subject having an effect similar to that of any of the events referred to in Clauses 20.2 (c) to 20.2 (h) above.
20.3 In addition, the Trust shall be entitled to terminate this Agreement by notice in writing to PTC, such termination to take effect as specified in the notice, if:
(a) During the Programme Term, PTC fails to comply with any of the Conditions and where such non–compliance is capable of remedy, PTC has not remedied it within [**] Business Days of the receipt by it of a notice from the Trust identifying the non–compliance and requiring its remedy; or
(b) During the Programme Term, the Site Visit Group recommends termination of the Programme in accordance with Clause 6 and PTC fails to correct any identified failings within the applicable time period under Clause 6.3;
(c) PTC ceases or threatens to cease to carry on all or a substantial part of its business or operations necessary for the completion of its obligations under this Agreement;
(d) PTC takes any action, or omits to take any action, the consequences of which, in the reasonable opinion of the Trust, would be incompatible with or have an adverse effect:
(i) on the Trust’s charitable objectives or reputation; or
(ii) on the ability of PTC to comply with its respective obligations under this Agreement; and/or
(e) PTC enters into transactions involving any of the Programme Intellectual Property and/or Background Intellectual Property without the prior written consent of the Trust, including, without limitation, assigning or otherwise transferring any Programme Intellectual Property or Background Intellectual Property or any interest in such Intellectual Property to an Affiliate or Third Party and/or creating any new security or increasing any existing security over any of the Programme Intellectual Property and/or Background Intellectual Property (other than netting or set–off arrangements entered into in the ordinary course of PTC’s banking or financing arrangements for the purpose of netting debit and credit balances; or any lien arising by operation of law and in the ordinary course of business).
20.4 If the during the Programme Term the Principal Investigator ceases to be involved with the Programme, ceases to be employed by or provide services to PTC, ceases to carry out research at premises controlled by PTC, or is prevented through illness or injury from promptly fulfilling his obligations under this Agreement, the Trust shall consult with PTC to ascertain whether the Programme or its progress will be jeopardised by such event. If in the reasonable opinion of the Trust:
(a) such event will jeopardise the Programme or its progress, and the Parties after good–faith negotiations are unable to agree on a replacement Principal Investigator, the Trust may terminate this Agreement by written notice (provided, that such determination and termination by the Trust shall be final and binding and shall not be subject to the dispute resolution or arbitration procedures set forth in Clause 19); or
(b) the Programme has reached a stage such that the services of the Principal Investigator are not key to the completion of the Programme, the Trust and PTC shall negotiate in good faith any amendments necessary to this Agreement so as to enable the satisfactory completion of the Programme within a reasonable time.
20.5 In the event that PTC undergoes a Change of Control, PTC shall give the Trust prompt notice of such Change of Control.
(a) During the Programme Term, if in the Trust’s reasonable opinion, the Change of Control would have an adverse effect on, or be incompatible with the Trust’s charitable objectives or PTC’s ability to fulfil its obligations under the Agreement, the Trust may in its absolute discretion, terminate the Agreement by serving written notice of termination on PTC.
(b) Following the Programme Term, the surviving entity following such Change of Control shall, within [**] days of such Change of Control, confirm in writing to Trust its intentions to continue to meet its obligations under this Agreement, and meet with Trust to present its plans for Exploiting the Programme Intellectual Property and commercializing Products.
(i) If no Product resulting from the Programme is being tested in Phase 1 or later trials or has received Marketing Approval, and if following the meeting contemplated by Clause 20.5(b), in the Trust’s reasonable opinion, the Change of Control would have an adverse effect on, or be incompatible with the Trust’s charitable objectives or the ability of PTC’s successor in interest to fulfil its obligations under the Agreement, the Trust may in its absolute discretion, terminate the Agreement by serving written notice of termination on such successor in interest. For clarity, If any Product resulting from the Programme is being tested in Phase 1 or later trials, and following the meeting contemplated by Clause 20.5(b), the Trust shall not have any termination rights under this Clause 20.5(b)(i), but the Trust and PTC’s successor in interest shall negotiate in good faith for a resolution of the issues raised by the Trust, and any failure to reach an agreement on such resolution within a reasonable time period may be referred in the Trust’s sole discretion to the dispute resolution and arbitration procedures specified in Clause 19.
(ii) If PTC’s successor in interest fails to provide the written notice or refuses to hold the meeting contemplated in Clause 20.5(b), then the Trust may in its absolute discretion terminate the Agreement by serving written notice of termination on PTC’s successor in interest.
SCHEDULE 2: CONDITIONS
- Compliance with PTCs obligations with respect to the formation and operation of the RSG in accordance with Clause 5;
- Engagement and involvement of an independent industry adviser to the RSG with relevant experience in accordance with Clause 5.2(a)(ii);
- Timely submissions of reports on Programme progress pursuant to Clause 5.7;
- Co–operation with Site Visit Group prior to and during visits in accordance with Clause 6;
- Timely consultation with the IPMG on patent strategy and patent prosecution in accordance with Clause 9.
- Compliance with the Grant Conditions and any other agreements between PTC and the Trust relating to the Programme;
- Seeking and maintaining protection of Background Intellectual Property in accordance with Clause 8.4; and
- Compliance with PTC’s treasury policy (such policy to be acceptable to the Trust) in accordance with Clause 2.9.