Common use of Selection of CGI Antigens Clause in Contracts

Selection of CGI Antigens. To exercise the Option with respect to an Antigen, CGI must notify ABX in writing (each such notice an "Exercise Notice") that CGI desires ABX to Select an Antigen for CGI for a given Six-Month Period and identify the Antigen. A Form of Exercise Notice is attached hereto as Exhibit E. An Exercise Notice with respect to an Antigen for a given Six-Month Period must be given during the Six-Month Period immediately preceding the Six-Month Period for which the Exercise Notice is given, it being understood that if CGI has not, for each Selection Slot available to CGI for a given Six-Month Period, provided the first Exercise Notice for ---------- [***] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such Selection Slot on or before the last day of the preceding Six-Month Period (i.e., on or before December 31st or June 30th), CGI shall be deemed not to have exercised its Option for such Selection Slots. Notwithstanding the foregoing, the Exercise Notice with respect to the Option for the Six-Month Period ending on December 31, 1997 may be given by CGI at any time prior to December 1, 1997, and the Exercise Notice with respect to the Option for the Six-Month Period beginning on January 1, 1998 may be given by CGI at any time prior to January 31, 1998. CGI may also, in cases in which Section 7.1 of the MRLOA applies (i.e., those cases in which CGI has proprietary rights in the Antigen), request in the Exercise Notice that ABX Select the Antigen pursuant to Section 7.1 of the MRLOA; provided, however, that CGI shall provide to ABX for disclosure to JTI the basis for claiming that Section 7.1 of the MRLOA applies. Following receipt of such Exercise Notice: (a) ABX shall promptly and in good faith determine whether, at the time ABX received CGI's Exercise Notice, any of the following conditions (each, an "Impediment") existed: (i) the Antigen so identified by CGI was not then available, under the terms of the MRLOA, for Selection by ABX because (A) ABX or JTI then has in effect a Product License with respect to such Antigen, or has previously Selected such Antigen and has the continuing right to acquire a Product License with respect to such Antigen by reason of such Selection; (B) XT is obligated to grant to a third party other than ABX or JTI exclusive rights to sell one or more Covered Products to such Antigen (or has granted such rights to such third parties, which rights are then in effect), or (C) XT otherwise does not have the authority to grant ABX rights to Covered Products to such Antigen; (ii) ABX was contractually obligated to Select such Antigen for a third party, or has granted to a third party a contractual right (including, without limitation, an option) to require ABX to Select such Antigen on such third party's behalf, it being understood that the Antigen must be specifically identified as part of such obligation or right; (iii) the Antigen so identified by CGI is an ABX Proprietary Antigen; (iv) ABX is actively and in good faith engaged in negotiations with a third party regarding the grant to such third party of a license under the Licensed Technology to commercialize Covered Products related to such Antigen; or (v) ABX has performed research on its own behalf regarding such Antigen and has reached a point equivalent to completion of Item No. 11 of the attached Exhibit A [***] of Mice or Future Generation Mice with such Antigen. ABX shall, within thirty (30) days after receiving the Exercise Notice, notify CGI in writing of any such Impediment and, unless contractually prohibited from doing so, provide reasonable documentation of the existence of such Impediment; provided, that at ABX's election ABX may provide such documentation under circumstances reasonably calculated to ensure the confidentiality ---------- [***] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. thereof, which circumstances may include disclosure of such documentation to a third party, chosen by CGI and reasonably acceptable to ABX, under terms of a confidentiality agreement. If such an Impediment exists and ABX so notifies CGI during such period, then ABX shall not be obligated to Select such Antigen or grant to CGI a CGI Product Sublicense with respect to such Antigen; provided, however, that nothing herein shall preclude CGI from later attempting again to exercise the Option with respect to such Antigen in accordance with this Article 2. In the event that CGI has exercised the Option with respect to an Antigen, but has been unable to have ABX Select such Antigen by reason of an Impediment (as set forth in this Section 2.2), then CGI may again exercise such Option for a different Antigen, as provided in Section 2.2(b) below. (b) Subject to paragraph 2.2(a) above, ABX shall Select such Antigen at the first [***], or at the next other opportunity at which ABX may make such selection, whichever occurs first. If requested to do so by CGI in an appropriate case, ABX shall Select such Antigen pursuant to Section 7.1 of the MRLOA. ABX agrees to keep available for Selection at CGI's request in accordance with this Section 2.2 during each Six-Month Period the number of Selection Slots with respect to which CGI has the right to exercise the Option for such Six-Month Period, it being understood, however, that if CGI does not exercise the Option during the time permitted under this Section 2.2, ABX shall have the right to use such Selection Slot for its own account or for the benefit of a third party, subject to Section 5.1 below. It is understood that if CGI exercises its Option with a timely Exercise Notice but an Impediment exists with respect to the Antigen requested by CGI, ABX shall, unless the parties otherwise mutually agree, be required to keep the Selection Slot available for CGI to exercise the Option with respect to an alternative Antigen until the midpoint of the Six-Month Period during which the Selection Slot was to be exercised on behalf of CGI (i.e., March 31st or Sept 30th of such Six-Month Period, as the case may be). CGI may exercise the Option with respect to such alternative Antigen by sending a new Exercise Notice naming such alternative Antigen; provided, however, that if ABX receives such an Exercise Notice naming an alternative Antigen less than thirty (30) days before the first quarterly meeting within the Six-Month Period, then ABX may, in its discretion, [***] within the Six-Month Period or the next available opportunity, whichever is sooner. If CGI has not provided an Exercise Notice naming an alternative Antigen that is free of Impediments prior to the midpoint of the Six-Month Period, then (i) ABX shall not be obligated to Select an Antigen for CGI using that Selection Slot during such Six-Month Period but (ii) ABX shall not, without CGI's written consent, be entitled to Select another Antigen on behalf of itself or a third party using such Selection Slot. (c) CGI shall be responsible for the payment of all amounts that ABX may owe to XT under the MRLOA by reason of ABX's Selection of an Antigen on behalf of CGI. Upon ABX's Selection of an Antigen identified by CGI under this Section 2.2, such Antigen shall become a "CGI Antigen." ABX shall promptly notify CGI of its Selection of an Antigen requested by CGI and shall inform CGI of the deadline for ABX to exercise its option under the MRLOA to obtain a Product License resulting from Selection of the Antigen. ---------- [***] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.