Common use of Transferability; Binding Effect Clause in Contracts

Transferability; Binding Effect. (a) Neither this Agreement nor any Product Addendum, nor any of the rights or obligations of Patheon may be directly or indirectly assigned, sold, delegated or otherwise disposed of by Patheon without the prior written consent of XenoPort, which consent may not be unreasonably withheld. To the extent that (i) Patheon seeks to assign this Agreement or any Product Addendum to a successor by merger, acquisition, or sale (an “Acquirer”) of all or substantially all of its business assets in the field to which this Agreement relates; or (ii) Patheon seeks to assign this Agreement in its entirety to an Affiliate of Patheon, XenoPort will consent to the assignment if the Acquirer or Affiliate: [ * ]. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (b) XenoPort may assign its rights and duties under this Agreement or any Product Addendum with prior written approval from Patheon, this approval not to be unreasonably withheld, and any Assignee will be bound by the Terms of this Agreement. Patheon may reasonably withhold consent for a partial assignment in cases where the proposed partial assignment will create a financial hardship for Patheon on the proposed assigned products. XenoPort will have the right to assign this Agreement in its entirety to an Affiliate of XenoPort and Patheon will consent to the assignment. (c) XenoPort may enter into a [ * ] with a Third Party [ * ] including pursuant to a [ * ]. Under these circumstances, XenoPort’s Third Party [ * ] may either audit Patheon under the same terms as allowed for XenoPort in this Agreement per Article XI, or, at XenoPort’s discretion, XenoPort may provide copies of any reports generated from Article XI, provided that the Third Party will execute a confidentiality agreement containing substantially those terms provided in Article XVI, and XenoPort has provided Patheon with notice of its intent to enter into a [ * ] with a Third Party [ * ]. Patheon will, within [ * ] the date of XenoPort’s notice, provide XenoPort written notice of its objection to providing the Third Party [ * ] with the right to audit or provide copies of an audit report on the basis that the Third Party [ * ] is a competitor of Patheon as of the time Patheon is notified by XenoPort of the potential Third Party [ * ]. Except where Patheon provides a written objection within the [ * ] period, Patheon will be deemed to have irrevocably granted XenoPort permission to arrange such audit or provide copies of a report to the Third Party [ * ]. Where Patheon provides a timely written objection on the basis that the Third Party [ * ] is a current Patheon Competitor, the Parties will meet to discuss how to meet the quality, regulatory and operational needs of such Third Party [ * ].

Transferability; Binding Effect. (a) Neither this Agreement nor any Product AddendumAgreement, nor any of the rights or obligations of Patheon Draxis may be directly or indirectly assigned, sold, delegated or otherwise disposed of by Patheon Draxis without the prior written consent of XenoPortGSK, which consent may not be unreasonably withheld. To the extent ; provided, however, that (i) Patheon seeks to Draxis may assign this Agreement or any Product Addendum to a successor by merger, acquisition, or sale (an “Acquirer”) of all or substantially all of its such Draxis’ business assets in the field to which this Agreement relates; or , without GSK’s consent, and (ii) Patheon seeks to assign this Agreement in its entirety to an Affiliate of Patheon, XenoPort will consent to the assignment if the Acquirer or Affiliate: [ * ]. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (b) XenoPort may assign its rights and duties under this Agreement or any Product Addendum with prior written approval from Patheon, this approval not to be unreasonably withheld, and any Assignee will be bound by the Terms of this Agreement. Patheon may reasonably withhold consent for a partial assignment in cases where the proposed partial assignment will create a financial hardship for Patheon on the proposed assigned products. XenoPort will Draxis shall have the right to assign this Agreement in its entirety to an Affiliate of XenoPort Draxis, if the successor or Affiliate: (i) shall agree in writing to assume Draxis’ obligations under this Agreement and Patheon to be bound by all the terms and provisions of this Agreement, including without limitation the noncompetition provisions of Article XVI; (ii) is not at the time of the assignment of this Agreement engaged, directly or indirectly, for itself, through any affiliate, or any other Person, in the manufacture, sale, distribution or marketing of any (a) generic equivalent of any Product or (b) any congener of a Product; (iii) is experienced in or has, or will consent have as a condition to such assignment, senior and operating management, together with personnel retained at the Facility, who are experienced in pharmaceutical manufacturing under cGMPs of secondary dosage forms; (iv) has sufficient financial resources and liquidity (including lines of credit) to satisfy the requirements for working capital necessary to operate the Facility in the manner required to manufacture and supply Products and perform all the obligations of Draxis under this Agreement; (v) is in good standing with the Regulatory Authorities of any jurisdiction contemplated for the shipment of Products and has for the five (5) year period prior to the assignmentassignment of this Agreement a satisfactory record of regulatory compliance with such other Regulatory Authorities, except to the extent any noncompliance would not reasonably be expected to have a material adverse effect on the ability of such Permitted Transferee to operate pharmaceutical manufacturing facility; and (vi) is not, and has no affiliate that is, at the time of assignment or during any time within the two (2) year period prior thereto, engaged in any litigation or arbitration involving GSK or any GSK Affiliate involving claims, or Products with annual revenues. (cb) XenoPort GSK may enter into a [ * ] with assign its rights and duties under this Agreement without Draxis’ prior consent; provided, however, that GSK may not assign any right to claim lost profits or consequential damages, or to assert the special payment remedy set forth in Section 15.8 above, against Draxis for intentional misconduct or gross negligence to a Third Party [ * ] including pursuant to a [ * ]. Under these circumstances, XenoPort’s Third Party [ * ] may either audit Patheon under the same terms as allowed for XenoPort in this Agreement per Article XI, or, at XenoPort’s discretion, XenoPort may provide copies of any reports generated from Article XI, provided that the Third Party will execute a confidentiality agreement containing substantially those terms provided in Article XVI, and XenoPort has provided Patheon with notice of its intent to enter into a [ * ] with a Third Party [ * ]. Patheon will, within [ * ] the date of XenoPort’s notice, provide XenoPort written notice of its objection to providing the Third Party [ * ] with the right to audit or provide copies of an audit report on the basis that the Third Party [ * ] is a competitor of Patheon as of the time Patheon is notified by XenoPort of the potential Third Party [ * ]. Except where Patheon provides a written objection within the [ * ] period, Patheon will be deemed to have irrevocably granted XenoPort permission to arrange such audit or provide copies of a report to the Third Party [ * ]. Where Patheon provides a timely written objection on the basis that the Third Party [ * ] is a current Patheon Competitor, the Parties will meet to discuss how to meet the quality, regulatory and operational needs of such Third Party [ * ]Party.

Transferability; Binding Effect. (a) Neither Except as provided in Section 25.6(b) below, neither this Agreement nor any Product AddendumAgreement, nor any of the rights or obligations of Patheon Supplier may be directly or indirectly assigned, subcontracted, Agreement to the contrary, sold, 140 delegated or otherwise disposed of by Patheon Supplier without the prior written consent of XenoPort, GWI (which consent may not be unreasonably withheld. To the extent given or withheld by GWI in it sole discretion), including any assignment by operation of law or as a result of a Proposed Change in Control Transaction, provided, however, that (i) Patheon seeks to Supplier or Supplier's primary lenders or lending syndicate or the agent for such lenders or syndicate (for purposes of this Section 25.6(a), the "Lenders") may assign this Agreement or any Product Addendum pursuant to a successor by merger, acquisition, or sale (an “Acquirer”) of all or substantially all of its business assets Proposed Change in the field Control Transaction with respect to which this Agreement relates; or Supplier has complied with the provisions of Section 20.8 above, (ii) Patheon seeks Supplier may assign to assign the Lenders Supplier's right to payments and to enforce payments due from GWI under this Agreement and the Deed of Easement in its entirety to an Affiliate of Patheonthe form attached as Exhibit G, XenoPort will consent and (iii) Supplier may assign as collateral to the --------- Lenders Supplier's interests under this Agreement and the Deed of Easement in the form attached hereto as Exhibit G, provided that any such collateral --------- assignment if shall expressly provide that (A) the Acquirer Lenders' rights to foreclose upon or otherwise dispose of Supplier's interests in this Agreement will be subject to the condition that such foreclosure or disposition occur in connection with a foreclosure or sale in lieu of foreclosure of the Lenders' security interests in the Facility and/or the capital stock of Supplier and/or Parent, (B) the Lenders shall not be entitled to exercise any remedy with respect to this Agreement other than (x) a foreclosure sale and assignment of this Agreement to a Permitted Transferee subject to and upon the terms contained in Section 25.6(b) of this Agreement, (y) to enforce rights to payment as provided in clause (a) (ii) above and (z) upon the occurrence and during the continuance of an event of default as defined in the applicable security agreement or other instrument or agreement pursuant to or in connection with which such collateral assignment shall have been made, the right to demand that payments be remitted directly to the Lenders, (C) the Permitted Transferee who shall so succeed through foreclosure to Supplier's rights under this 141 Agreement must also acquire the Facility and/or the capital stock of Supplier and/or Parent, (D) in no event shall the Lenders be entitled to assume, perform, satisfy or discharge any of Supplier's obligations other than with respect to payment of money or issuance of credits to GWI due by Supplier under this Agreement, (E) the provisions described in this Section 25.6 (a) shall not be amended without the prior written consent of GWI, which consent (in the case of amendments as to form, but not as to substance) shall not be unreasonably withheld and (F) GWI is a third-party beneficiary of such provisions with full rights at law and in equity to enforce the same. GWI and each GWI Affiliate may assign its rights (but not its obligations) under this Agreement to any GWI Affiliate: [ * ]. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENTThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as otherwise expressly provided herein, MARKED BY BRACKETSnone of the provisions of this Agreement is intended to grant any right or benefit to any person or entity other than GWI, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934the GWI Affiliates, AS AMENDEDSupplier, the Supplier Affiliates, Parent or the GWI Affiliates. (b) XenoPort This Agreement may assign its rights be assigned to a "Permitted Transferee" as defined below in connection with a foreclosure or sale in lieu of foreclosure of any security interests in (i) the Facility and/or (ii) the capital stock of Supplier and/or Parent by Supplier's primary lender(s) or lending syndicate or the agent for such lenders or syndicate (collectively the "Foreclosing Party"). GWI acknowledges and duties under this Agreement agrees that any action of the Foreclosing Party in foreclosing on a pledge of the capital stock of Parent or any Product Addendum with prior written approval from Patheon, this approval not to be unreasonably withheld, Supplier and any Assignee will sale (including any sale in lieu of foreclosure) of such capital stock to a Permitted Transferee shall not be bound by the Terms of this Agreement. Patheon may reasonably withhold consent for a partial assignment in cases where the proposed partial assignment will create a financial hardship for Patheon on the proposed assigned products. XenoPort will have the right to assign this Agreement in its entirety to an Affiliate of XenoPort and Patheon will consent subject to the assignment. (c) XenoPort may enter into a [ * ] with a Third Party [ * ] including pursuant to a [ * ]provisions of Section 20.8 hereof. Under these circumstances, XenoPort’s Third Party [ * ] may either audit Patheon under the same terms as allowed for XenoPort The parties acknowledge that notwithstanding anything in this Agreement per Article XI, or, at XenoPort’s discretion, XenoPort to the contrary the provisions of this Section 25.6(b) may provide copies of any reports generated from Article XI, provided that the Third Party will execute a confidentiality agreement containing substantially those terms provided in Article XVIbe enforced by, and XenoPort has provided Patheon with notice of its intent to enter into a [ * ] with a Third Party [ * ]. Patheon will, within [ * ] the date of XenoPort’s notice, provide XenoPort written notice of its objection to providing the Third Party [ * ] with the right to audit or provide copies of an audit report on the basis that the Third Party [ * ] is a competitor of Patheon as of the time Patheon is notified by XenoPort of the potential Third Party [ * ]. Except where Patheon provides a written objection within the [ * ] period, Patheon will shall be deemed to have irrevocably granted XenoPort permission to arrange such audit or provide copies of a report to for the Third Party [ * ]. Where Patheon provides a timely written objection on the basis that the Third Party [ * ] is a current Patheon Competitorbenefit of, the Parties will meet to discuss how to meet the quality, regulatory and operational needs of such Third Party [ * ]Foreclosing Party.

Transferability; Binding Effect. (a) Neither Except as provided in Section 25.6(b) below, neither this Agreement nor any Product AddendumAgreement, nor any of the rights or obligations of Patheon Supplier may be directly or indirectly assigned, subcontracted, Agreement to the contrary, sold, 140 delegated or otherwise disposed of by Patheon Supplier without the prior written consent of XenoPort, GWI (which consent may not be unreasonably withheld. To the extent given or withheld by GWI in it sole discretion), including any assignment by operation of law or as a result of a Proposed Change in Control Transaction, provided, however, that (i) Patheon seeks to Supplier or Supplier's primary lenders or lending syndicate or the agent for such lenders or syndicate (for purposes of this Section 25.6(a), the "Lenders") may assign this Agreement or any Product Addendum pursuant to a successor by merger, acquisition, or sale (an “Acquirer”) of all or substantially all of its business assets Proposed Change in the field Control Transaction with respect to which this Agreement relates; or Supplier has complied with the provisions of Section 20.8 above, (ii) Patheon seeks Supplier may assign to assign the Lenders Supplier's right to payments and to enforce payments due from GWI under this Agreement and the Deed of Easement in its entirety to an Affiliate of Patheonthe form attached as Exhibit G, XenoPort will consent and (iii) Supplier may assign as collateral to the --------- Lenders Supplier's interests under this Agreement and the Deed of Easement in the form attached hereto as Exhibit G, provided that any such collateral --------- assignment if shall expressly provide that (A) the Acquirer Lenders' rights to foreclose upon or Affiliate: [ * ]otherwise dispose of Supplier's interests in this Agreement will be subject to the condition that such foreclosure or disposition occur in connection with a foreclosure or sale in lieu of foreclosure of the Lenders' security interests in the Facility and/or the capital stock of Supplier and/or Parent, (B) the Lenders shall not be entitled to exercise any remedy with respect to this Agreement other than (x) a foreclosure sale and assignment of this Agreement to a Permitted Transferee subject to and upon the terms contained in Section 25.6(b) of this Agreement, (y) to enforce rights to payment as provided in clause (a) (ii) above and (z) upon the occurrence and during the continuance of an event of default as defined in the applicable security agreement or other instrument or agreement pursuant to or in connection with which such collateral assignment shall have been made, the right to demand that payments be remitted directly to the Lenders, (C) the Permitted Transferee who shall so succeed through foreclosure to Supplier's rights under this 141 Agreement must also acquire the Facility and/or the capital stock of Supplier and/or Parent, (D) in no event shall the Lenders be entitled to assume, perform, satisfy or discharge any of Supplier's obligations other than with respect to payment of money or issuance of credits to GWI due by Supplier under this Agreement, (E) the provisions described in this Section 25.6 (a) shall not be amended without the prior written consent of GWI, which consent (in the case of amendments as to form, but not as to substance) shall not be unreasonably withheld and (F) GWI is a third-party beneficiary of such provisions with full rights at law and in equity to enforce the same. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (b) XenoPort GWI and each GWI Affiliate may assign its rights and duties (but not its obligations) under this Agreement or to any Product Addendum with prior written approval from PatheonGWI Affiliate. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as otherwise expressly provided herein, this approval not to be unreasonably withheld, and any Assignee will be bound by none of the Terms provisions of this Agreement. Patheon may reasonably withhold consent for a partial assignment in cases where the proposed partial assignment will create a financial hardship for Patheon on the proposed assigned products. XenoPort will have the Agreement is intended to grant any right or benefit to assign this Agreement in its entirety to an Affiliate of XenoPort and Patheon will consent to the assignment. (c) XenoPort may enter into a [ * ] with a Third Party [ * ] including pursuant to a [ * ]. Under these circumstances, XenoPort’s Third Party [ * ] may either audit Patheon under the same terms as allowed for XenoPort in this Agreement per Article XI, or, at XenoPort’s discretion, XenoPort may provide copies of any reports generated from Article XI, provided that the Third Party will execute a confidentiality agreement containing substantially those terms provided in Article XVI, and XenoPort has provided Patheon with notice of its intent to enter into a [ * ] with a Third Party [ * ]. Patheon will, within [ * ] the date of XenoPort’s notice, provide XenoPort written notice of its objection to providing the Third Party [ * ] with the right to audit person or provide copies of an audit report on the basis that the Third Party [ * ] is a competitor of Patheon as of the time Patheon is notified by XenoPort of the potential Third Party [ * ]. Except where Patheon provides a written objection within the [ * ] period, Patheon will be deemed to have irrevocably granted XenoPort permission to arrange such audit or provide copies of a report to the Third Party [ * ]. Where Patheon provides a timely written objection on the basis that the Third Party [ * ] is a current Patheon Competitorentity other than GWI, the Parties will meet to discuss how to meet GWI Affiliates, Supplier, the qualitySupplier Affiliates, regulatory and operational needs of such Third Party [ * ]Parent or the GWI Affiliates.