Common use of Capacity Allocation Clause in Contracts

Capacity Allocation. 5.6.1 Notwithstanding anything herein to the contrary or anything to the contrary in any Purchase Order or Forecast, Seller shall not be obligated to supply Purchaser (regardless of amounts ordered by Purchaser), more than the then applicable Maximum Annual Product Units during a twelve month period. Without limiting the foregoing, any Purchase Order or Forecast submitted by Purchaser hereunder for more than the then applicable Maximum Annual Product Units shall, to the extent of the excess, be deemed rejected by Seller, unless expressly accepted by Seller in writing. As used herein, the term "Maximum Annual Product Units" shall mean for the period ending twelve full calendar months from the First Commercial Sale and for each twelve month period thereafter, [***] of the total units of branded and generic Lovenox® product (including the brand name product, the Product, any Authorized Generic Product and any Competitive Product) sold for distribution into the Territory for the immediately preceding calendar year as reported by IMS Health (or such other nationally recognized data compilation source as mutually agreed); provided that, if the First Commercial Sale occurs during calendar year 2005, then the Maximum Annual Product Units for the period ending twelve full calendar months from the First Commercial Sale shall be deemed to be [***] of Product. For each twelve month period beginning after the First Commercial Sale (other than as provided above if the First Commercial Sale occurs in calendar year 2005), the Maximum Annual Product Units shall be established as soon as data from IMS Health (or such other nationally recognized source as mutually agreed) for the immediately preceding calendar year becomes available to the parties and once the Maximum Annual Product Units for the then current twelve month period is established, it shall be effective retroactively to the beginning of and shall be fixed through such twelve month period. Without limiting the foregoing, but by way of example: If the First Commercial Sale occurs on September 1, 2005, then the Maximum Annual Product Units for the twelve month period ending with August 31, 2006 would be [***] units of Product. As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [***] units of Product during the twelve month period ending August 31, 2006. Assuming that [***] total units of branded and generic Lovenox® product were sold for distribution into the Territory for the 2005 calendar year as reported by IMS Health, then the newly established Maximum Annual Product Units for the twelve month period ending August 31, 2007 would be [***] units of Product (i.e., [***] units). As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [***] units of Product during the twelve month period ending August 31, 2007. The foregoing process would be repeated once each twelve month period thereafter to establish the Maximum Annual Product Units for the then current twelve month period. At Purchaser's request from time to time, the parties shall discuss increasing the then existing Maximum Annual Product Units based on then existing market conditions, Seller's manufacturing capacity and other relevant factors. Seller shall reasonably consider Purchaser's request and its reasons for an increase in the then existing Maximum Annual Product Units; provided that, Seller shall have no obligation to agree to (and may reject in Seller's sole discretion and without liability) any increase requested by Purchaser in the then existing Maximum Annual Product Units. 5.6.2 In the event that Seller's inability (including any inability as a result of a Force Majeure Event) to satisfy any Purchase Order accepted pursuant to Section 5.3, in whole or in part, is due to a shortage of production capacity or raw materials, then, subject to the terms and conditions of this Agreement, including Section 5.6.1 above, Seller shall give priority to Purchaser's Purchase Orders, and satisfy deliveries of amounts ordered consistent with Section 5.3 prior to fulfilling order for Product of any other Person, for up to (i) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders for the period ending six full calendar months after the First Commercial Sale and (ii) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders during each six month period thereafter and for any Product to be delivered to Purchaser pursuant to its Purchase Orders during such six month period in excess of the foregoing [***] unit amount, [***] of Seller's units of its finished inventory of Product produced during the applicable period in excess of [***] units shall be allocated to fulfill any such remaining outstanding Purchase Orders. [***] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Capacity Allocation. 5.6.1 Notwithstanding anything herein to the contrary or anything to the contrary in any Purchase Order or Forecast, Seller shall not be obligated to supply Purchaser (regardless of amounts ordered by Purchaser), more than the then applicable Maximum Annual Product Units during a twelve month period. Without limiting the foregoing, any Purchase Order or Forecast submitted by Purchaser hereunder for more than the then applicable Maximum Annual Product Units shall, to the extent of the excess, be deemed rejected by Seller, unless expressly accepted by Seller in writing. As used herein, the term "“Maximum Annual Product Units" ” shall mean for the period ending twelve full calendar months from the First Commercial Sale and for each twelve month period thereafter, [***] of the total units of branded and generic Lovenox® product (including the brand name product, the Product, any Authorized Generic Product and any Competitive Product) sold for distribution into the Territory for the immediately preceding calendar year as reported by IMS Health (or such other nationally recognized data compilation source as mutually agreed); provided that, if the First Commercial Sale occurs during calendar year 2005, then the Maximum Annual Product Units for the period ending twelve full calendar months from the First Commercial Sale shall be deemed to be [***] of Product. For each twelve month period beginning after the First Commercial Sale (other than as provided above if the First Commercial Sale occurs in calendar year 2005), the Maximum Annual Product Units shall be established as soon as data from IMS Health (or such other nationally recognized source as mutually agreed) for the immediately preceding calendar year becomes available to the parties and once the Maximum Annual Product Units for the then current twelve month period is established, it shall be effective retroactively to the beginning of and shall be fixed through such twelve month period. Without limiting the foregoing, but by way of example: If the First Commercial Sale occurs on September 1, 2005, then the Maximum Annual Product Units for the twelve month period ending with August 31, 2006 would be [***] units of Product. As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [***] units of Product during the twelve month period ending August 31, 2006. Assuming that [***] total units of branded and generic Lovenox® product were sold for distribution into the Territory for the 2005 calendar year as reported by IMS Health, then the newly established Maximum Annual Product Units for the twelve month period ending August 31, 2007 would be [***] units of Product (i.e., [***] units). As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [***] units of Product during the twelve month period ending August 31, 2007. The foregoing process would be repeated once each twelve month period thereafter to establish the Maximum Annual Product Units for the then current twelve month period. At Purchaser's request from time to time, the parties shall discuss increasing the then existing Maximum Annual Product Units based on then existing market conditions, Seller's manufacturing capacity and other relevant factors. Seller shall reasonably consider Purchaser's request and its reasons for an increase in the then existing Maximum Annual Product Units; provided that, Seller shall have no obligation to agree to (and may reject in Seller's sole discretion and without liability) any increase requested by Purchaser in the then existing Maximum Annual Product UnitsConfidential Treatment Requested. 5.6.2 In the event that Seller's inability (including any inability as a result of a Force Majeure Event) to satisfy any Purchase Order accepted pursuant to Section 5.3, in whole or in part, is due to a shortage of production capacity or raw materials, then, subject to the terms and conditions of this Agreement, including Section 5.6.1 above, Seller shall give priority to Purchaser's Purchase Orders, and satisfy deliveries of amounts ordered consistent with Section 5.3 prior to fulfilling order for Product of any other Person, for up to (i) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders for the period ending six full calendar months after the First Commercial Sale and (ii) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders during each six month period thereafter and for any Product to be delivered to Purchaser pursuant to its Purchase Orders during such six month period in excess of the foregoing [***] unit amount, [***] of Seller's units of its finished inventory of Product produced during the applicable period in excess of [***] units shall be allocated to fulfill any such remaining outstanding Purchase Orders. [***] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Capacity Allocation. 5.6.1 Notwithstanding anything herein to the contrary or anything to the contrary in any Purchase Order or Forecast, Seller shall not be obligated to supply Purchaser (regardless of amounts ordered by Purchaser), more than the then applicable Maximum Annual Product Units during a twelve month period. Without limiting the foregoing, any Purchase Order or Forecast submitted by Purchaser hereunder for more than the then applicable Maximum Annual Product Units shall, to the extent of the excess, be deemed rejected by Seller, unless expressly accepted by Seller in writing. As used herein, the term "“Maximum Annual Product Units" ” shall mean for the period ending twelve full calendar months from the First Commercial Sale and for each twelve month period thereafter, [****] of the total units of branded and generic Lovenox® product (including the brand name product, the Product, any Authorized Generic Product and any Competitive Product) sold for distribution into the Territory for the immediately preceding calendar year as reported by IMS Health (or such other nationally recognized data compilation source as mutually agreed); provided that, if the First Commercial Sale occurs during calendar year 2005, then the Maximum Annual Product Units for the period ending twelve full calendar months from the First Commercial Sale shall be deemed to be [****] units of Product. For each twelve month period beginning after the First Commercial Sale (other than as provided above if the First Commercial Sale occurs in calendar year 2005), the Maximum Annual Product Units shall be established as soon as data from IMS Health (or such other nationally recognized source as mutually agreed) for the immediately preceding calendar year becomes available to the parties and once the Maximum Annual Product Units for the then current twelve month period is established, it shall be effective retroactively to the beginning of and shall be fixed through such twelve month period. Without limiting the foregoing, but by way of example: If the First Commercial Sale occurs on September 1, 2005, then the Maximum Annual Product Units for the twelve month period ending with August 31, 2006 would be [****] units of Product. As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [****] units of Product during the twelve month period ending August 31, 2006. Assuming that [****] total units of branded and generic Lovenox® product were sold for distribution into the Territory for the 2005 calendar year as reported by IMS * filed under application for confidential treatment Health, then the newly established Maximum Annual Product Units for the twelve month period ending August 31, 2007 would be [****] units of Product (i.e., [****] units). As a result, Purchaser would have no right to order or purchase, and Seller would have no obligation to supply, more than [****] units of Product during the twelve month period ending August 31, 2007. The foregoing process would be repeated once each twelve month period thereafter to establish the Maximum Annual Product Units for the then current twelve month period. At Purchaser's ’s request from time to time, the parties shall discuss increasing the then existing Maximum Annual Product Units based on then existing market conditions, Seller's ’s manufacturing capacity and other relevant factors. Seller shall reasonably consider Purchaser's ’s request and its reasons for an increase in the then existing Maximum Annual Product Units; provided that, Seller shall have no obligation to agree to (and may reject in Seller's ’s sole discretion and without liability) any increase requested by Purchaser in the then existing Maximum Annual Product Units. 5.6.2 In the event that Seller's inability (including any inability as a result of a Force Majeure Event) to satisfy any Purchase Order accepted pursuant to Section 5.3, in whole or in part, is due to a shortage of production capacity or raw materials, then, subject to the terms and conditions of this Agreement, including Section 5.6.1 above, Seller shall give priority to Purchaser's Purchase Orders, and satisfy deliveries of amounts ordered consistent with Section 5.3 prior to fulfilling order for Product of any other Person, for up to (i) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders for the period ending six full calendar months after the First Commercial Sale and (ii) [***] units of Product to be delivered to Purchaser pursuant to its Purchase Orders during each six month period thereafter and for any Product to be delivered to Purchaser pursuant to its Purchase Orders during such six month period in excess of the foregoing [***] unit amount, [***] of Seller's units of its finished inventory of Product produced during the applicable period in excess of [***] units shall be allocated to fulfill any such remaining outstanding Purchase Orders. [***] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.