Effect of Expiration or Termination. (a) Upon expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration. (b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8: (i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction. (ii) All then outstanding Firm Orders automatically shall be cancelled. (iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. (iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination. (c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c): (i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination. (ii) All then outstanding Firm Orders automatically shall be cancelled. (iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. (d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d): (i) All then outstanding Firm Orders automatically shall be cancelled. (ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense. (e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8: (i) All then outstanding Firm Orders automatically shall be cancelled. (ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination. (iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination. (f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a): (i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination. (ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense. (g) Upon termination of this Agreement by Salix pursuant to Section 11.5: (i) All then outstanding Firm Orders automatically shall be cancelled. (ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product. (iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense. (iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved. (h) Upon termination of this Agreement by either party pursuant to Section 11.6: (i) All then outstanding Firm Orders automatically shall be cancelled. (ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction. (iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement. (iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. (i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e): (i) All then outstanding Firm Orders automatically shall be cancelled. (ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense. (iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination. (j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b): (i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction. (ii) All then outstanding Firm Orders automatically shall be cancelled. (iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. (k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b): (i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense. (ii) All then outstanding Firm Orders automatically shall be cancelled. (iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 3 contracts
Sources: Supply and Distribution Agreement, Supply and Distribution Agreement (Salix Pharmaceuticals LTD), Supply and Distribution Agreement (Salix Pharmaceuticals LTD)
Effect of Expiration or Termination. (a) Upon expiration of the Term License Term, all of the following will apply:
(i) All licenses and associated rights granted to Otsuka by GW Pharma pursuant to Section 2.1 of this Agreement shall be deemed to be paid-up and irrevocable;
(ii) GW Pharma shall, at Otsuka’s election, continue to supply Licensed Products to Otsuka on the terms of the Manufacturing and Supply Agreement for its term and Otsuka shall be entitled to exercise full manufacturing rights pursuant to Section 2.2;
(iii) Otsuka shall be entitled to require the transfer of manufacturing technology, protocols, standard operating procedures and the like as specified in the Manufacturing and Supply Agreement;
(iv) All licenses and associated rights granted to GW Pharma by Otsuka pursuant to Section 2.3 of this Agreement shall continue for the term of the Manufacturing and Supply Agreement so long as the Manufacturing and Supply Agreement is not terminated by Otsuka or manufacture of the Licensed Products is assumed by Otsuka but without terminating the Manufacturing and Supply Agreement;
(v) In its sole discretion Otsuka shall have the right to terminate the Manufacture and Supply Agreement according to its terms including as to notice period and have the right to ask GW Pharma to offer terms for the future supply of Licensed Products or just BDS, such offer to be made in GW Pharma’s discretion.
(vi) The license and associated rights granted by Otsuka to GW Pharma pursuant to Section 2.3 of this Agreement shall continue in full force and effect as a royalty-free license, and otherwise on the same terms as set forth in Section2.3
(b) If this Agreement is terminated by Otsuka pursuant to Section 10.3(a) or 10.3(b), all of the following will apply:
(i) All licenses and associated rights granted to Otsuka by GW Pharma pursuant to Sections2.1 and 2.4 of this Agreement shall continue in full force and effect as perpetual licenses, but otherwise on the same terms as set forth in Sections 2.1 and 2.4 and the remainder of this Agreement, and all amounts that absent such termination would be due to GW Pharma hereunder as Product Royalties shall continue to be due, but only in the case of termination under Section 10.3(a) shall be due in amounts reduced by *** percent (***%) of amounts that would otherwise be due. Otsuka will be entitled to a complete duplicate of (or complete access to, as appropriate) the Licensed Intellectual Property and all embodiments of the Licensed Intellectual Property, and same, if not already in its possession, will be promptly delivered to it.
(ii) GW Pharma shall, at Otsuka’s election, continue to supply Licensed Products to Otsuka on the terms of the Manufacturing and Supply Agreement for the longer of its term or up to three (3) years at the discretion of Otsuka.
(iii) In its sole discretion Otsuka shall have the right to terminate the Manufacture and Supply Agreement according to its terms including as to notice period and have the right to ask GW Pharma to offer terms for the future supply of Licensed Products or just BDS, such offer to be made in GW Pharma’s discretion.
(iv) The license granted by Otsuka to GW Pharma under Section 2.3. of this Agreement shall continue in full force and effect on the terms set forth in Section 2.3and as set out below: (i) where the Agreement has been terminated under Section 10.3(b) such license shall continue to be a royalty-free license; and (ii) where the Agreement has been terminated under Section 10.3(a) such continuing license shall require the payment by GW Pharma of a royalty of *** percent (***%) on net sales of products made by GW Pharma, its Affiliates and its sub-licensees covered by a Valid Claim of a Joint Patent or Otsuka Patent Rights in the country of sale, such net sales to be calculated in a manner *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. comparable to that set forth in Section 1.58. GW Pharma shall be entitled to a complete duplicate of (or complete access to, as appropriate) the Otsuka Clinical Data and all relevant Otsuka Know-How and all embodiments thereof, and the same, if not already in its possession, will be promptly delivered to it.
(v) GW Pharma shall, to the extent legally practicable, assign to Otsuka its right, title and interest in and to each IND and all other regulatory filings with respect to any Licensed Product in the Territory save for such DEA Regulatory Approvals and other regulatory approvals necessary for GW Pharma to supply Otsuka under the Manufacturing and Supply Agreement if this is still continuing, and GW Pharma shall deliver promptly to Otsuka all tangible manifestations of the same.
(c) If this Agreement is terminated by GW Pharma pursuant to Section 10.3(a), 10.3(b) or 10.4 or by Otsuka pursuant to Section 10.5 all of the following will apply:
(i) The licenses and associated rights granted by GW Pharma to Otsuka under Sections 2.1 and 2.4 of this Agreement shall terminate and be of no further force or effect.
(ii) The license granted by Otsuka to GW Pharma under Section 2.3 of this Agreement shall continue in full force and effect as a worldwide royalty-free license, and otherwise on the same terms as set forth in Section 2.3. GW Pharma shall be entitled to a complete duplicate of (or complete access to, as appropriate) the Otsuka Clinical Data and all relevant Otsuka Know-How and all embodiments thereof, and the same, if not already in its possession, will be promptly delivered to it.
(iii) Notwithstanding any other provision of this Section 10.7(c), Otsuka and its sublicensees shall have the right and license in the Field to sell, offer for sale, have sold, import and export all existing inventories of each Licensed Product then under their control for up to six (6) months following termination, subject to the continuing application of this Agreement and the prevailing right of GW Pharma, upon ninety (90) days advance written notice, to purchase such entire remaining inventory of Licensed Products, at a cost equal to the aggregate Supply Compensation, transportation and insurance costs when originally shipped to Otsuka and then returned to GW Pharma hereunder, and other handling expenses paid by Otsuka for such inventory.
(iv) Commensurate with then current legislative and regulatory requirements Otsuka shall as soon as practicably possible after termination transfer to GW Pharma or its nominee all right, title and interest in all relevant INDs, NDAs, or FDA Regulatory Approvals or DEA Regulatory Approvals held by it or any sub-licensee for the Licensed Products (“Product Registration”). GW Pharma acknowledges that Otsuka will, within thirty (30) days of the Closing Date, execute letters addressed to FDA and DEA to effect these transfers, the form of which letters are set out in Exhibit H. The signed but undated originals of such letters will be provided by Otsuka to ▇▇▇▇▇▇▇▇ shall & ▇▇▇▇▇▇▇▇ within thirty (30) days from the Closing Date to be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or held by ▇▇▇▇▇▇▇▇ pursuant to Section 11.8:
(i) & ▇▇▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product in escrow and ▇▇▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) & ▇▇▇▇▇▇▇▇ promptly shall reimburse Salix for all actual will confirm to Otsuka in writing that they will only release the same to GW Pharma upon receipt of written confirmation by GW Pharma signed by both its then current Chairman and reasonable costs incurred by Salix to complete activities associated with CEO that termination has occurred and under the termination circumstances of this Agreement, including, without limitation (ASection 10.7(c) the costs of all Materials purchased by Salix up letters are to be released, subject to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost conclusion of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix dispute resolution procedure pursuant to Section 3.1(b10.3(a) has not been reimbursed by Salix and Section11.2. Upon grant of an IND, NDA, FDA Regulatory Approval or credited against Profits payable by DEA Regulatory Approval to Otsuka in respect of a Licensed Product Otsuka hereby irrevocably authorizes ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ as escrow agent to insert the IND, NDA, FDA Regulatory Approval or DEA Regulatory Approval reference number allocated by the FDA or the DEA, as applicable, and the name and brief description of the Licensed Product the object of the IND, NDA, FDA Regulatory Approval or DEA Regulatory Approval into the letters signed by Otsuka and held in escrow. Otsuka hereby irrevocably authorizes GW Pharma to complete and date of termination, Salix shall reimburse such amount to these letters with the date that it receives them from ▇▇▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) & ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to submit them to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement FDA and such Firm Orders, that portion DEA respectively. Otsuka shall also deliver promptly to GW Pharma all tangible manifestations of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of terminationsuch INDs, NDAs or Full Regulatory Approvals.
(iid) ▇▇▇▇▇▇ shall be permitted If a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as portion of the date of termination. ▇▇▇▇▇▇ immediately license granted by GW Pharma to Otsuka under Section 2.1 is terminated by Otsuka, in relation to a particular Licensed Product then the provisions set out in Section 10.7(c)(i), 10.7(c)(ii), 10.7(c)(iii) and 10.7(c)(iv) shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product apply but only in relation to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic that Licensed Product.
(iiie) Salix promptly shall repurchase Within thirty (A30) all saleable inventory days following the expiration of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction License Term or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, includingeach Party shall return to the other Party or destroy, without limitationupon the written request of the other Party, any and all Confidential Information of the other Party in its possession, except, to the extent and for so long as such Party retains a license hereunder as provided by this Article 10 provided, however, that each Party may retain one copy of the other Party’s Confidential Information for the sole purpose of monitoring compliance with its obligations hereunder.
(Af) Expiration of the costs License Term or termination of all Materials purchased by Salix this Agreement shall not (i) affect any other rights of either Party which may have accrued up to the effective date of such termination which cannot be diverted or (ii) preclude either Party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to Salix’s any breach of this Agreement. Subject always to other uses provisions of this Agreement that provide for survival of certain provisions following expiration or termination, the provisions of Article 1 (all), Article 4 (due, but unpaid obligations), Article 5 (in relation to activities occurring prior to expiration or termination), Article 6 (Confidentiality),Sections 9.4, 9.5, 10.6 to 10.8 inclusive, Article 11, Article 12 and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party Article 13 shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the survive expiration or termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 3 contracts
Sources: Development and License Agreement (Gw Pharmaceuticals PLC), Development and License Agreement (Gw Pharmaceuticals PLC), Development and License Agreement (Gw Pharmaceuticals PLC)
Effect of Expiration or Termination. (a) Upon expiration of the Term termination of this AgreementAgreement in accordance with Sections 8.1, 12.2, 12.3 or 12.4:
(i) The licenses and rights granted by Biogen Idec to ▇▇▇▇▇▇▇ shall be permitted under Article II will immediately terminate; provided that, any sublicenses granted in accordance with Section 2.5 prior to sell off any inventory of Generic Product in its possession as of the date of expiration.
the corresponding notice of breach (bin the case of Section 12.2) Upon or termination (in the case of Section 8.1, 12.3 or 12.4) shall survive if the relevant Sublicensee agrees in writing to be bound by the terms of this Agreement as such terms apply to such Sublicensee (in which event, such Sublicensee will be deemed a direct licensee of Biogen Idec); provided, further, that any such Sublicensee shall only be responsible for any payments that become due as a result solely of such Sublicensee’s activities after the effective date of any such termination. For clarity, Sublicensees who agree to be bound by the terms of this Agreement pursuant to this Section 12.5(a)(i) will not be responsible for: (A) any payments due to Biogen Idec under Section 5.6 and that Section shall be terminated upon the termination of this Agreement by Salix pursuant to Section 11.2(abetween ▇▇▇▇▇▇▇ and Biogen Idec; nor (B) or any milestone payments already paid by ▇▇▇▇▇▇▇ pursuant prior to the effective date of any such termination, nor any milestone payments that may accrue as a result of the activities of any other Sublicensee after the effective date of any such termination of this Agreement; but for purposes of determining the amount of milestone payments under Section 11.8:
(i) 5.2 and/or Section 5.3, any milestone that was met and for which payment has been made by or on behalf of ▇▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative prior to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically termination shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred deemed to have been paid by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelledSublicensee.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product return to Salix at Salix’s expense.
(e) Upon termination of this Agreement by Biogen Idec all written Biogen Idec Know-How and Manufacturing Know-How, and all copies and any other tangible and electronic embodiments thereof in ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ optionpossession, Salix will fulfill, in accordance with subject to the terms of this Agreement and such Firm Orders, that portion rights of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of terminationsurviving Sublicensee.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: License Agreement (Santarus Inc), License Agreement (Santarus Inc)
Effect of Expiration or Termination. (a) Upon Following expiration of the Term term of this Agreement, ▇▇▇▇▇▇ shall be permitted Agreement under Section 10.1 with respect to sell off any inventory of Generic a Product in its possession as of the date of expirationField in the Territory JCR shall have the royalty-free, perpetual right to manufacture, have manufactured, use and sell such Product in the Field in the Territory.
(b) Upon termination of this Agreement by Salix pursuant to under Section 11.2(a) 10.2, 10.4 or by ▇▇▇▇▇▇ pursuant to Section 11.8:
10.7 (i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution other than as a result of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination breach of this Agreement by Salix pursuant to Section 11.2(b) or (c):
OSIRIS), JCR shall promptly: (i) ▇▇▇▇▇▇ transfer free of charge, to OSIRIS or such other Person as OSIRIS shall be permitted to sell off designate, any inventory of Generic and all rights that it may have under any government registrations or authorizations, including Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this AgreementRegistrations, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2Product in the Field, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy cancel any inventory of Generic such registrations or authorizations, including Product under its control and shall eitherRegistrations, at Salix’s option, (i) allow a Salix representative to with respect thereto as may not be present during such destruction or transferable; (ii) provide a certificate of to OSIRIS all data and other information in JCR’s, or its Affiliates’ or Sublicensees’ possession or control relating to such destruction.
Product Registrations; and (iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% discontinue all distribution of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as the use of the effective date OSIRIS Patents and OSIRIS Technology and JCR Special Technology in connection therewith. All rights of termination JCR under the licenses for such Product granted hereunder shall revert to OSIRIS. The rights and Manufactured by Salix in accordance licenses granted to JCR shall terminate with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts respect to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
Product; (iv) Each party acknowledges grant OSIRIS a non-exclusive, royalty-bearing license at a reasonable royalty under and agrees to JCR Special Technology and JCR Patents to make, have made, use, sell, offer to sell and import Products in the Field for use in the Territory, including a right to sublicense a Third Party(ies) in conjunction with a license to OSIRIS Technology and provide to OSIRIS such technology that the other party shall have no liability of any kind is licensed to such first party, other than as provided in OSIRIS under this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with 10.3(b) to the SECextent that it has not been previously provided to OSIRIS.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: License Agreement (Mesoblast LTD), License Agreement (Osiris Therapeutics, Inc.)
Effect of Expiration or Termination. (a) Upon Following expiration of the Term term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. : [*] Confidential treatment requested; certain = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix Securities and Exchange Commission pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as Rule 406 of the date Securities Act of termination1933, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of terminationas amended.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ R-Pharm, to the extent required by law, shall be permitted have a non-exclusive, royalty-free, perpetual right to sell off any inventory of Generic Product continue to make, have made, use, market, distribute, sell, export within the Territory and/or import all Products in its possession as of all countries in the date of termination.Territory, and the non-exclusive, perpetual and paid-up right to use the Licensed Technology in connection therewith;
(ii) All then outstanding Firm Orders automatically Scynexis shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation have: (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are fully-paid non-refundable exclusive right to continue to cross-reference and otherwise exercise its rights as set forth in Section 4 under the Registrations and other regulatory filings for all Products in all countries in the Territory; and (B) the Purchase Price fully-paid, non-exclusive, perpetual right to continue to use patents or know-how that embody or relate to the Inventions described in Section 5.6 solely for any finished Generic Product and the cost of any work purposes set forth in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstandingSection 5.6.
(db) Upon termination of If this Agreement is terminated with respect to a portion of the Territory (the “Subject Portion”) by Salix Scynexis pursuant to Section 11.2(d):
Sections 4.8, 5.3, 12.2 or 14.5(d), in addition to any other remedies available to Scynexis at law or in equity: (i) All then outstanding Firm Orders automatically R-Pharm shall be cancelled.
promptly transfer to Scynexis copies of all data, reports, records and materials in R-Pharm’s possession or control that relate, whether exclusively or non-exclusively, to the Territory Development Plan and return to Scynexis all relevant records and materials in R-Pharm’s possession or control that relate exclusively to the Subject Portion and contain Confidential Information of Scynexis (iiprovided that R-Pharm may keep one hard (non-electronic) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution copy of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold = Certain confidential information contained in this document, marked by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination)brackets, then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information has been omitted and filed separately with the SECSecurities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. ▇▇▇▇▇▇ and taken into account in the calculation Confidential Information of Net SalesScynexis for archival purposes only), use its best efforts ; (ii) all licenses granted by Scynexis to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period R-Pharm hereunder shall terminate with respect to which a payment the Subject Portion; (iii) R-Pharm shall transfer to Scynexis, or shall cause its designee(s) under Section 4.4(b) to transfer to Scynexis, ownership of Profits had already been all INDs, Registration Applications, Registrations and other regulatory filings made or filed for the Product in the Subject Portion; and (iv) R-Pharm shall transfer to Scynexis all rights to use the Trademark with respect to the Product in all countries throughout the Subject Portion.
(c) If this Agreement is terminated in its entirety by ▇▇▇▇▇▇ to Salix Scynexis pursuant to Section 3.2, Salix promptly shall pay 4.8, 5.3, 12.2 or 14.5(d) by reason of a breach by R-Pharm, in addition to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant any other remedies available to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
Scynexis at law or in equity: (i) All then outstanding Firm Orders automatically R-Pharm shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative promptly transfer to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% Scynexis copies of all actual data, reports, records and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up materials in Scynexis’ possession or control that relate to the effective date Territory Development Plan and return to Scynexis all relevant records and materials in R-Pharm’s possession or control containing Confidential Information of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix Securities and Exchange Commission pursuant to Section 11.2(e):
Rule 406 of the Securities Act of 1933, as amended. Scynexis (i) All then outstanding Firm Orders automatically shall be cancelled.
provided that R-Pharm may keep one copy of such Confidential Information of Scynexis for archival purposes only); (ii) ▇▇▇▇▇▇ immediately all licenses granted by Scynexis to R-Pharm hereunder shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
terminate; (iii) Salix R-Pharm shall reimburse ▇▇▇▇▇▇ transfer to Scynexis ownership of all INDs, Registration Applications, Registrations and other regulatory filings made or filed for any reasonable the Product; and customary supplier penalties (iv) R-Pharm shall transfer to Scynexis all rights to use the Trademark with respect to the Product in all countries throughout the Territory. Furthermore, Scynexis shall have a fully-paid, non-exclusive, perpetual right to continue to use patents or know-how that are incurred by ▇▇▇▇▇▇ embody or relate to the Inventions described in Section 5.6 solely for cancellation of customer supply contracts that exist as of the date of the notice for such terminationpurposes set forth in Section 5.6.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: Development, License and Supply Agreement, Development, License and Supply Agreement (Scynexis Inc)
Effect of Expiration or Termination. (a) Upon Following expiration of the Term term of this Agreement, ▇▇▇▇▇▇ shall be permitted Agreement with respect to sell off any inventory of Generic a Product in its possession as a country in the Territory pursuant to Section 14.1(a), BMS shall have the royalty-free, perpetual right to continue to manufacture, have manufactured, use and sell such Product in such country. Following expiration of the date term of expirationthis Agreement in its entirety pursuant to Section 14.1(b), BMS shall have the royalty-free, perpetual right to continue to manufacture, have manufactured, use and sell all Products in all countries in the Territory.
(b) Upon termination of this Agreement by Salix BMS pursuant to Section 11.2(a14.2: (i) ICAgen shall promptly transfer to BMS copies of all data, reports, records and materials in ICAgen’s possession or control which relate to the Research Program, return to BMS all relevant records and materials in ICAgen’s possession or control containing Confidential Information of BMS to which ICAgen does not retain rights hereunder and furnish to BMS all Substances provided to ICAgen in connection with the Research Program; (ii) all licenses granted by ▇▇▇▇▇▇ BMS to ICAgen under Section 7 shall terminate; (iii) ownership of all INDs, NDAs and other regulatory filings made or filed for any Collaboration Compound or Product shall be transferred solely to BMS; and (iv) the exclusivity granted to BMS pursuant to Section 11.8:
(i4.8(a) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution continue during the remainder of the Generic Product Exclusivity Period, if any. The licenses granted to BMS by ICAgen pursuant to Sections 4.11 and ▇▇▇▇▇▇ 7 shall immediately destroy any inventory continue in full force and effect, subject to BMS’s obligations, including payment of Generic Product under its controlroyalties and milestones, as provided in Sections 5, 8 and 9; provided, however, if at its expensethe time BMS terminates this Agreement pursuant to Section 14.2, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which canCollaboration Compound has not be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix received PLP Approval as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders such termination, then outstanding. BMS shall be obligated to pay only [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as *]% of each of the date of termination, Salix shall reimburse milestones as provided in Sections 8.2 with respect to such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of terminationCollaboration Compound.
(c) Upon termination of this Agreement by Salix ICAgen pursuant to Section 11.2(b) or (c):
14.2: (i) ▇▇▇▇▇▇ BMS shall be permitted promptly transfer to sell off any inventory ICAgen copies of Generic Product all data, reports, records and materials in its BMS’s possession as or control which relate to the Research Program, return to ICAgen all relevant records and materials in BMS’s possession or control containing Confidential Information of ICAgen to which BMS does not retain rights hereunder and furnish to ICAgen all Substances provided to BMS in connection with the date of termination.
Research Program; (ii) All then outstanding Firm Orders automatically all licenses granted by ICAgen to BMS under Sections 4.11 and 7 shall be cancelled.
terminate; and (iii) ▇▇▇▇▇▇ promptly ownership of all INDs, NDAs and other regulatory filings made or filed for any ICAgen Compound or Product shall reimburse Salix for all actual be transferred solely to ICAgen. Thereafter, ICAgen shall have the right to develop, make, have made, use, sell or have sold any ICAgen Compound or any ICAgen Compound Product. In such event, each such ICAgen Compound shall be deemed to be a Grant-Back Compound and reasonable costs incurred by Salix each such ICAgen Compound Product shall be deemed to complete activities associated be a Grant-Back Product, ICAgen shall pay milestones and royalties with respect thereto as provided in Exhibit E, and ICAgen shall indemnify BMS as provided in Section 12.2(b). In the event that, following termination of this AgreementAgreement by ICAgen pursuant to Section 14.2, includingBMS develops, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses makes, has made, uses, sells or has sold any BMS Compound that is a Collaboration Compound or any BMS Compound Product, BMS shall pay milestones and which are non-refundable royalties with respect thereto as provided in Sections 5.4, 8 and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding9.
(d) Upon termination of In the event either Party terminates this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales14.2, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party Party shall have no liability of any kind the right to sublicense such first party, other than as provided in this Section 11.9(h), for termination of this Agreement Party’s rights under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i14.3(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.or
Appears in 2 contracts
Sources: Collaborative Research and License Agreement (Icagen Inc), Collaborative Research and License Agreement (Icagen Inc)
Effect of Expiration or Termination. (a) Upon Following the expiration of the Term term of this Agreement with respect to a Product in the Territory pursuant to Section 12.1(a):
(i) Kissei shall have a non-exclusive, royalty-free, perpetual right to continue to use, market, distribute, sell, manufacture and have manufactured any Product in the Territory, and the non-exclusive, perpetual and paid-up right to use the Licensed Technology in connection therewith. To that end, Kissei may continue to hold and use all data, reports, records and materials that relate to or are prepared in the course of the Joint Development Program, and may hold all INDs, NDAs, NDA Approvals and other regulatory filings made or filed by Kissei for such Product, pursuant to this Agreement, ▇▇▇▇▇▇ and may in its sole discretion continue any sublicense granted by Kissei under this Agreement; and
(ii) Inspire shall be permitted have the fully-paid non-exclusive right to sell off any inventory of Generic continue to cross-reference and otherwise exercise its rights as set forth in Section 4.5(d) under the NDA Approval(s) and other regulatory filings for such Product in its possession as of the date of expirationTerritory.
(b) Upon termination Following expiration of the term of this Agreement by Salix in its entirety pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:12.1(b):
(i) ▇▇▇▇▇▇ immediately Kissei shall cease have a non-exclusive, royalty-free, perpetual right to continue to use, market, distribute, sell manufacture and have manufactured all salesProducts in the Territory, marketing and distribution the non-exclusive, perpetual and paid-up right to use the Licensed Technology in connection therewith. To that end, Kissei may continue to hold and use all data, reports, records and materials that relate to or are prepared in the course of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expenseJoint Development Program, and shall eithermay hold all INDs, at Salix’s optionNDAs, (A) allow a Salix representative NDA Approvals and other regulatory filings made or filed by Kissei for all Products, pursuant to be present during such destruction or (B) provide a certificate of such destruction.this Agreement, and may in its sole discretion continue any sublicense granted by Kissei under this Agreement;
(ii) All then outstanding Firm Orders automatically Inspire shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation have: (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are fully-paid non-refundable exclusive right to continue to cross-reference and otherwise exercise its rights as set forth in Section 4.5(d) under the NDA Approvals and other regulatory filings for Products in such countries; and (B) the Purchase Price for any finished Generic Product fully-paid, non-exclusive, perpetual right to continue to use patents or know-how that embody or relate to Inventions and the cost of any work that are owned or controlled by Kissei or its Affiliates as set forth in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination5.4.
(c) Upon termination of If this Agreement is terminated by Salix Inspire pursuant to Section 11.2(b) 12.2 by reason of a breach or (c):
default by Kissei, in addition to any other remedies available to Inspire at law or in equity, or by Kissei pursuant to Section 12.3: (i) ▇▇▇▇▇▇ Kissei shall be permitted promptly transfer to sell off any inventory Inspire copies of Generic Product all data, reports, records and materials in its Kissei's possession as or control that relate to the Joint Development Program and return to Inspire all relevant records and materials in Kissei's possession or control containing Confidential Information of the date Inspire (provided that Kissei may keep one copy of termination.
such Confidential Information of Inspire for archival purposes only); (ii) All then outstanding Firm Orders automatically all licenses granted by Inspire to Kissei under Sections 5.1 and 5.2 shall be cancelled.
terminate; (iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs ownership of all Materials purchased INDs, NDAs, NDA Approvals and other regulatory filings made or filed for the Product shall be transferred promptly to Inspire; and (iv) all sublicenses granted by Salix up to Kissei under this Agreement shall terminate. Furthermore, Inspire shall have the effective date of termination which cannot be diverted to Salix’s other uses and which are fully-paid, non-refundable exclusive, perpetual right to continue to use patents or know-how that embody or relate to Inventions and (B) the Purchase Price for any finished Generic Product and the cost of any work that are owned or controlled by Kissei or its Affiliates as set forth in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstandingSection 5.4.
(d) Upon termination of If this Agreement is terminated by Salix Kissei pursuant to Section 11.2(d):
12.2 by reason of a breach or default by Inspire, in addition to any other remedies available to Kissei at law or in equity,: (i) All then outstanding Firm Orders automatically the license granted to Inspire by Kissei under Section 5.4 shall be cancelled.
terminate; (ii) ▇▇▇▇▇▇ immediately Kissei shall cease have an exclusive, royalty-free, perpetual right to continue to use, market, distribute, sell, manufacture and have manufactured any Product in the Territory, and the exclusive, perpetual and paid-up right to use the Licensed Technology in connection therewith. To that end, Kissei may continue to hold and use all salesdata, marketing reports, records and distribution materials that relate to or are prepared in the course of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic ProductJoint Development Program, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement may hold all INDs, NDAs, NDA Approvals and other regulatory filings made or filed by ▇▇▇▇▇▇ Kissei for the Products, pursuant to Section 11.3 or this Agreement, and may in its sole discretion continue any sublicenses granted by Salix pursuant Kissei under this Agreement; and (iii) in order to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
secure the right of Kissei in clause (ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination12.4(d), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with Inspire hereby grants Kissei the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than Manufacturing License as provided in this Section 11.9(h)the Supply Agreement, for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately will use all reasonable efforts to enable Kissei to manufacture, or have manufactured Finished Product and Delivery Systems, including working with Kissei to establish arrangements with the SECThird Party Manufacturers.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: Joint Development, License and Supply Agreement (Inspire Pharmaceuticals Inc), Joint Development, License and Supply Agreement (Inspire Pharmaceuticals Inc)
Effect of Expiration or Termination. (a) Upon expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon Expiration or termination of this Agreement by Salix pursuant shall not relieve the Parties of any obligation accruing prior to Section 11.2(a) such expiration or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expensetermination, and the provisions of Sections 1, 2, 5,7, 9.1, 9.6,10 and 12 shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction survive the expiration or (B) provide a certificate termination of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the this Agreement. Upon any termination of this Agreement, includingLicensor shall grant a direct license to any sublicense of Licensee hereunder having the same scope as such sublicense and on terms and conditions no less favorable to such Sublicensee than the terms and conditions of this Agreement, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which canprovided that such Sublicensee is not be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost in default of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of applicable obligations under this Agreement and agrees in writing to be bound by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off the terms and conditions of such direct license. Upon any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, includingfor a period of six (6) months thereafter, without limitation Licensee (Aand its Affiliates and Sublicensees) the costs of all Materials purchased by Salix up shall continue to the effective date of termination which cannot be diverted entitled to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost finish production of any work Products which were in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date time of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty and Licensee (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during and Sublicensees) shall be entitled to sell all Products which were in inventory or in process at the time of termination, so long as Licensee (and its Affiliates and Sublicensees) continues to make the reports and pay the scheduled royalties for said sales as set forth in this Agreement. ***** VISTAGEN THERAPEUTICS, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, includingBE AFFORDED CONFIDENTIAL TREATMENT. VISTAGEN THERAPEUTICS, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of terminationINC. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this AgreementHAS SEPARATELY FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE COMMISSION.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: Exclusive License and Sublicense Agreement (VistaGen Therapeutics, Inc.), Exclusive License and Sublicense Agreement (VistaGen Therapeutics, Inc.)
Effect of Expiration or Termination. (a) Upon Following expiration of the Term term of this Agreement, ▇▇▇▇▇▇ shall be permitted Agreement with respect to sell off any inventory of Generic a Product in its possession as a country in the applicable Territory pursuant to Section 13.1(a), the licensee Party under this Agreement shall have the royalty-free, perpetual right to continue to manufacture, have manufactured, use and sell such Product in such country. Following expiration of the date term of expirationthis Agreement in its entirety pursuant to Section 13.1(b), the licensee Party shall have the royalty-free, perpetual right to continue to manufacture, have manufactured, use and sell all Products previously licensed by it in all countries in the applicable Territory.
(b) Upon termination of this Agreement by Salix YAMANOUCHI pursuant to Section 11.2(a13.2: (i) ICAgen shall promptly transfer to YAMANOUCHI copies of all data, reports, records and materials in ICAgen’s possession or control which relate to the Research Program, return to YAMANOUCHI all relevant records and materials in ICAgen’s possession or control containing Confidential Information of YAMANOUCHI to which ICAgen does not retain rights hereunder and furnish to YAMANOUCHI all Substances provided to ICAgen by ▇▇▇▇▇▇ YAMANOUCHI in connection with the Research Program; (ii) all licenses granted by YAMANOUCHI to ICAgen under Section 5 shall terminate; (iii) ICAgen shall be deemed to have given an ICAgen Abandonment Notice as to all Clinical Compounds and Products based thereon then being developed or commercialized by ICAgen; and (iv) the exclusivity granted to YAMANOUCHI pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately 2.8 shall cease all sales, marketing and distribution continue during the remainder of the Generic Product Exclusivity Period, if any. The licenses granted to YAMANOUCHI by ICAgen pursuant to Section 5 shall continue in full force and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product effect, subject to YAMANOUCHI’s obligations under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, includingincluding payment of royalties and milestones, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses as provided in Sections 5, 6, and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination7.
(c) Upon termination of this Agreement by Salix ICAgen pursuant to Section 11.2(b) or (c):
13.2: (i) ▇▇▇▇▇▇ YAMANOUCHI shall be permitted promptly transfer to sell off any inventory ICAgen copies of Generic Product all data, reports, records and materials in its YAMANOUCHI’s possession as or control which relate to the Research Program, return to ICAgen all relevant records and materials in YAMANOUCHI’s possession or control containing Confidential Information of ICAgen to which YAMANOUCHI does not retain rights hereunder and furnish to ICAgen all Substances provided to YAMANOUCHI by ICAgen in connection with the date of termination.
Research Program; (ii) All then outstanding Firm Orders automatically all licenses granted by ICAgen to YAMANOUCHI under Section 5 shall be cancelled.
terminate; (iii) ▇▇▇▇▇▇ promptly YAMANOUCHI shall reimburse Salix for be deemed to have given a YAMANOUCHI Abandonment Notice as to all actual Clinical Compounds and reasonable costs incurred Products based thereon then being developed or commercialized by Salix YAMANOUCHI; and (iv) the exclusivity granted to complete activities associated with the termination of YAMANOUCHI pursuant to Section 2.8 shall terminate. The licenses granted to ICAgen by YAMANOUCHI pursuant to Section 5 shall continue in full force and effect, subject to ICAgen’s obligations under this Agreement, includingincluding payment of royalties, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses as provided in Sections 5, 6, and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding7.
(d) Upon termination of this Agreement by Salix YAMANOUCHI pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically 13.3, all rights to YAMANOUCHI Compounds shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately revert to YAMANOUCHI and all rights to ICAgen Compounds shall cease all salesrevert to ICAgen, marketing unless and distribution of to the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseextent otherwise provided in Section 2.9 above.
(e) Upon termination In the event of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreementany license rights granted to either Party as provided in Section 13.4(b) or (c), includingthe other Party shall recognize the sublicenses previously granted hereunder to such Party’s Sublicensees; provided, without limitationhowever, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party Party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expensenot assume, and shall eithernot be responsible to any such Sublicensee for, at Salix’s optionany representations, (A) allow a Salix representative to be present during such destruction warranties or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% obligations of the Average Monthly ProfitsParty that granted the sublicense to any Sublicensee.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: Collaborative Research and License Agreement (Icagen Inc), Collaborative Research and License Agreement (Icagen Inc)
Effect of Expiration or Termination. Upon the expiration of this Agreement or the termination of this Agreement (or relevant portion thereof, if termination is only as to a certain Product and/or country) as provided above:
15.7.1. Expiration Where the Agreement expires in accordance with Section 15.1., then, in addition to any obligations expressly set forth elsewhere in this Agreement, the licenses granted to RIB-X by WAKUNAGA hereunder shall become fully paid-up, royalty-free, perpetual and irrevocable.
15.7.2. Breach by, Acquisition of or Insolvency of RIB-X or Termination by RIB-X Where termination is by WAKUNAGA pursuant to Section 15.2., 15.3. or 15.4., or by RIB-X pursuant to Section 15.5., then, in addition to any obligations expressly set forth elsewhere in this Agreement:
a) Upon expiration the licenses granted to RIB-X by WAKUNAGA hereunder shall terminate;
b) RIB-X and its Sublicensees may, for a period of six (6) months following termination, continue to sell existing inventory of Products provided that royalties on such Products are paid to WAKUNAGA as provided herein; Portions of this Exhibit, indicated by the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended.
c) RIB-X shall pay any Milestone Payments due for events which are achieved prior to the effective date of termination;
d) RIB-X shall transfer to WAKUNAGA without any payment all governmental approvals and licenses for the Compound and the Products, including any Regulatory Approvals, and the registration dossiers developed, acquired and/or used by RIB-X in the Territory during the Term of this Agreement, ▇▇▇▇▇▇ and RIB-X shall take all necessary procedures, including preparation of official documents, for such transfer at governmental authorities in the Territory by itself or its Sublicensees together with WAKUNAGA or WAKUNAGA’s designee. Such transfer shall be permitted accompanied by documentation, data and information related to sell off any inventory of Generic Product the Compound and the Products that can be transferred by RIB-X; and
e) RIB-X shall grant WAKUNAGA a perpetual, non-royalty bearing, exclusive license, with the right to grant sublicenses, to all Rib-X Proprietary Information reasonably necessary for WAKUNAGA, alone or in its possession as of conjunction with a Third Party to develop and commercialize the date of expirationCompound and the Products.
(b) Upon 15.7.3. Breach by or Insolvency of WAKUNAGA Where termination of this Agreement is by Salix RIB-X pursuant to Section 11.2(a) 15.3. or 15.4., then, in addition to any obligations expressly set forth elsewhere in this Agreement, the licenses granted by ▇▇▇▇▇▇ pursuant WAKUNAGA to Section 11.8:
(i) ▇▇▇▇▇▇ immediately RIB-X shall cease become fully-paid, royalty-free, perpetual and irrevocable; and RIB-X shall be entitled to retain copies of all sales, marketing and distribution of the Generic Product Wakunaga Proprietary Information and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under Proprietary Information as is necessary for RIB-X to exercise its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destructionrights hereunder.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: License Agreement (Rib-X Pharmaceuticals, Inc.), License Agreement (Rib-X Pharmaceuticals, Inc.)
Effect of Expiration or Termination. (a) Upon expiration of the Term Except as otherwise provided in Article 7, Article 13, or subsections (c) and (d) of this AgreementSection 15.4, ▇▇▇▇▇▇ expiration or termination of this Agreement shall result in the termination of all provisions hereof; PROVIDED, that Cytogen shall continue to be liable for all license fees and Royalty (with respect to all Agent that has then been sold by Cytogen or its Affiliates or Approved Sublicensees) payments that shall then have accrued and each Party shall be permitted to sell off responsible for any inventory of Generic Product in its possession as of the date of expirationamounts due under Section 8.2 and remaining unpaid.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) expiration or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation Cytogen shall return to AM (Ai) the costs of all Materials purchased by Salix up to Agent Technology, (ii) the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable Manufacturing Technology, if any, in its possession, and (Biii) the Purchase Price for any finished Generic Product and the cost Project Information not developed by Cytogen, or otherwise dispose of any work in process which cannot be diverted to Salix’s other uses held such Agent Technology, Manufacturing Technology or Project Information as instructed by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of terminationAM.
(c) Upon termination of this Agreement by Salix pursuant AM, Cytogen shall have the right to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any complete the sale of its inventory of Generic Product the Agent in its possession as the Territory; PROVIDED, that Cytogen's obligations hereunder to comply with this Agreement and the Supply Agreement in connection with such completion of sale shall remain in effect; and FURTHER PROVIDED, that if requested by AM, Cytogen shall negotiate with AM for the sale of Cytogen's entire inventory of the date of termination.
(ii) All then outstanding Firm Orders automatically shall Agent to AM on terms to be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred negotiated by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstandingParties at such time.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 expiration or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up neither Party shall have liability to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ Party for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability damages of any kind solely as a result of the fact of such expiration or termination, whether on account of the loss by Cytogen of present or prospective sales, investments or goodwill arising solely from statutes that relate to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Productdistributors or licensees, and ▇▇▇▇▇▇ shall deliver each Party hereby waives any rights which may be granted to it by such Generic Product to Salix at Salix’s expensestatutes.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 2 contracts
Sources: Annual Report, License and Marketing Agreement (Advanced Magnetics Inc)
Effect of Expiration or Termination. (a) i. Upon any expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement: (a) each Qualification shall automatically terminate, includingCompany shall cease all references to all of its Qualifications and, without limitation except as expressly provided in Section 8(d)(ii) below, all Licenses shall automatically terminate and (Ab) the costs provisions of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses Sections 4, 5(d), 6, 7, 8(d) and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination 9 through 20 of this Agreement by Salix pursuant to Section 11.2(b) shall survive. Upon any revocation, expiration or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreementany specific Qualification, including, without limitation (A) except as expressly provided in the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination remainder of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately Section, Company shall cease all sales, marketing references to such Qualification and distribution of all Licenses shall automatically terminate except to the Generic Product extent applicable to any Qualifications that remain in full force and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseeffect.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of . Notwithstanding the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h)foregoing, for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve twenty-four (1224) months from the effective date of termination of any GP Test Tool Qualification (the “Tail Period”), Company may continue to use the Licensed Works and Titles to the extent necessary to provide Direct Test Tool Support to those End Users who were authorized to use the Test Tool covered by such terminationterminated Qualification as of such termination date; provided that if Company continues to so use the Licensed Works or Titles during the Tail Period after notice of an Infringement Claim relating to such Test Tool or the Licensed Works or Titles used to create, ▇▇▇▇▇▇ develop or implement such Test Tool, then Company shall make monthly payments indemnify GP against any and all claims, causes of action or damages arising from or in connection with such use or the use of any related systems. Without in any way broadening the limitations set forth in the preceding sentence, Company’s use of Licensed Works, Titles or Test Tools as permitted by the preceding sentence during the Tail Period will continue to Salixbe subject to all restrictions, not later than forty-five (45) days after terms and conditions of this Agreement. Upon the end earlier of each month during such twelve (12) month period, each of which payments shall be equal Company’s ceasing to [*]% offer any Test Tools or the expiration of the Average Monthly Profits.Tail Period, Company will
(kA) Upon termination make no further use of this Agreement the Licensed Works or Titles (except to the extent Company may otherwise be entitled to use the same solely in its capacity as a member of GP), (B) return or destroy all copies of the Licensed Works in Company’s possession or under its control and expunge all electronic copies (except to the extent otherwise permitted by Salix pursuant GP), (C) recall, or cause to Section 11.4(b):
be recalled, all Test Tools then in use by any third party and (iD) ▇▇▇▇▇▇ immediately shall cease destroy all sales, marketing and distribution other materials that depict or incorporate any of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseLicensed Works or Titles.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Qualification and Listing Agreement
Effect of Expiration or Termination. (a) Upon expiration If this Agreement expires or is terminated by any Party pursuant to this Section 13, all rights and obligations of the Term Parties hereunder shall terminate except as specified in Section 13.9, and in addition to any other remedies available to the Parties at law or in equity: (i) Endo shall promptly transfer to DURECT copies of all data, reports, records and materials in its possession or control that relate solely to the Product, Finished Product and Implanter, and return to DURECT all relevant records and materials in its possession or control containing Confidential Information of DURECT (provided that Endo may keep one copy of such Confidential Information of DURECT for archival purposes only); (ii) Endo shall transfer to DURECT, or shall cause its designees to transfer to DURECT, ownership of all INDs, Registration Applications, Registrations and other regulatory filings made or filed for the Product (to the extent that any are held in Endo’s name), if permitted by applicable laws and regulations; (iii) Endo shall assign to DURECT, and hereby does assign, conditioned upon and effective only upon the termination or expiration of this Agreement, ▇▇▇▇▇▇ with no additional consideration all of Endo’s right, title and interest in the Co-Owned Trademarks (which shall thereafter be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(bdeemed DURECT Trademarks) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease including all salesgoodwill associated therewith, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To Endo shall execute, acknowledge and deliver such further instruments, and do all such other acts, as may be necessary or appropriate in order to carry out the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination purposes and intent of this Agreement by Salix pursuant Section 13.6 (subject to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for DURECT reimbursing all actual and reasonable costs out-of-pocket expenses incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work Endo in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of terminationconnection therewith), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (Cv) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as DURECT shall promptly return to Endo all relevant records and materials in DURECT’s possession or control containing Confidential Information of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
Endo (iv) Each party acknowledges and agrees provided that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate DURECT may keep one copy of such destructionConfidential Information of Endo for archival purposes only).
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: License Agreement (Durect Corp)
Effect of Expiration or Termination. As of the Closing Date:
(a) Upon expiration The first (1st) sentence of Section 12.3 of the Term Agreement shall be deleted in its entirety and replaced with the following: “So long as this Agreement: (i) has expired pursuant to its terms (e.g., it was not terminated by Licensor for any reason pursuant to the terms of this Agreement, ▇▇▇▇▇▇ shall be permitted other than pursuant to sell off any inventory Section 3.3(g) of Generic Product the Agreement), (ii) was terminated by Licensee pursuant to the express terms of Section 3.3 of this Agreement (provided that notice of termination sent pursuant to Section 3.3 is not after and/or in its possession response to a breach notice sent by Licensor to Licensee), or (iii) was terminated by Licensor pursuant to Section 3.3(g) of the Agreement for Licensee’s failure to meet Minimum Net Sales as specified therein), then: Licensee may complete (but only in accordance with the terms and conditions of this Agreement) production of Approved Licensed Merchandise which is in process, or for which written orders have been received from customers, all as of the date of expiration.
(b) Upon termination expiration of this Agreement. In the event this Agreement is: (A) terminated by Salix Licensor for any reason other than pursuant to Section 11.2(a3.3(g) or by ▇▇▇▇▇▇ pursuant (for Licensee’s failure to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all salesmeet Minimum Net Sales as specified therein), marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide terminated by Licensee after and/or in response to a certificate breach notice sent by Licensor to Licensee, then: Licensee shall immediately cease production of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix Approved Licensed Merchandise which is in process, or for which written orders have been received from customers, all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseof this Agreement.”
(eb) Upon termination The first (1st) sentence of Section 12.4 of the Agreement shall be deleted in its entirety and replaced with the following: “So long as this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
Agreement: (i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix has expired pursuant to Section 3.1(b) has its terms (e.g., it was not been reimbursed terminated by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix Licensor for any reason pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement, other than pursuant to Section 3.3(g) of the Agreement), (ii) was terminated by Licensee pursuant to the express terms of Section 3.3 of this Agreement (provided that notice of termination sent pursuant to Section 3.3 is not after and/or in response to a breach notice sent by Licensor to Licensee), or (iii) was terminated by Licensor pursuant to Section 3.3(g) of the Agreement for Licensee’s failure to meet Minimum Net Sales as specified therein), then: to the extent that the Inventory Purchase Option is not exercised in full with respect to all Licensed Merchandise subject thereto, and such Firm Ordersif Licensee is not in default under this Agreement (other than pursuant to Section 3.3(g) of the Agreement), that portion of any outstanding Firm Orders necessary to supply Licensee may use the Licensed M▇▇▇▇▇▇ (s) (“Royalty Option”) on a quantity non-exclusive basis in connection with the sale of Generic Product equal Approved Licensed Merchandise as to which an Inventory Purchase Option was not exercised for the difference between [*] months’ inventory and six (6) month period immediately following the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as expiration of the date of termination. ▇▇▇▇▇▇ immediately shall cease all salesapplicable Purchase Option Period, marketing and distribution of provided Licensee fully complies with the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination provisions of this Agreement in connection with such disposal. In the event this Agreement is: (A) terminated by Salix Licensor for any reason other than pursuant to Section 11.5:
3.3(g) (i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ for Licensee’s failure to meet Minimum Net Sales as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Salesspecified therein), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide terminated by Licensee after and/or in response to a certificate of such destructionbreach notice sent by Licensor to Licensee, then: Licensee shall have no Royalty Option.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.”
Appears in 1 contract
Sources: License Agreement (Movado Group Inc)
Effect of Expiration or Termination. (a) Upon the effective date of expiration of the Term or termination of this Agreement, ▇▇▇▇▇▇ the licenses granted by SteadyMed to Cardiome hereunder shall be permitted terminate and revert to sell off any inventory of Generic Product in its possession as SteadyMed, and all other rights and obligations of the date Parties under this Agreement shall terminate and be of expirationno force or effect, except as expressly set forth below in this Section 14.3 or in Section 14.4.
(b) Upon In the event of any termination of this Agreement by Salix SteadyMed pursuant to Section 11.2(a14.2(a) to (d), or by ▇▇▇▇▇▇ Cardiome pursuant to Section 11.8:
14.2(a) to (i) ▇▇▇▇▇▇ immediately e), the following shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, apply (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up in addition to the effective date provisions of termination which cannot be diverted to Salix’s other uses Section 14.3(a) and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c14.4):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual Regulatory and reasonable costs incurred by Salix to complete activities associated with the termination of this AgreementPricing Approvals. Cardiome shall, includingat Steadymed’s cost and written request, without limitation promptly: (A) the costs of all Materials purchased by Salix up transfer or assign, or cause to be transferred or assigned, to SteadyMed or its designee (or to the effective date extent transfer or assignment is not permitted by Applicable Law, take all reasonable actions to make available to SteadyMed or its designee the full benefits of) all Regulatory Applications, Regulatory Approvals, regulatory dossiers, applications for Pricing Approval, and Pricing Approvals, for Product in the Territory, whether held in the name of termination which cannot be diverted to Salix’s other uses and which are non-refundable and Cardiome, its Affiliate or a Sublicensee or Subdistributor; (B) the Purchase Price for any finished Generic Product and the cost provide to SteadyMed or its designee a complete copy of any work in process which cannot be diverted to Salix’s other uses held by Salix as all of the effective date foregoing documents, as well as copies of termination and Manufactured by Salix in accordance all correspondence with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant Regulatory Authorities or Pricing Authorities pertaining to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account Products in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumedTerritory; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) take such other actions and execute such other instruments, assignments and documents as may be necessary to effect, evidence, register and record the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as transfer, assignment or other conveyance of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in rights under this Section 11.9(h)14.3(b)(i) to SteadyMed or its designee. Notwithstanding the above, for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, if Cardiome cannot complete (A) allow a Salix representative through (C) as set forth above due to be present during such destruction Applicable Law or (B) provide a certificate of such destructioncontracts that prohibit the same, Cardiome will take all reasonable actions to make the above available to SteadyMed or SteadyMed’s designee at SteadyMed’s cost.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Exclusive License and Supply Agreement (Correvio Pharma Corp.)
Effect of Expiration or Termination. (a) Upon expiration or termination of this Agreement ( “Termination”) by any reason whatsoever (and without prejudice to any remedies available to either party by reason thereof), Licensee shall, and shall cause the Host to, immediately cease all operations of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as Licensed Tournaments and all uses of the date of expirationLicensed Marks and all rights and licenses in and to the Licensed Marks and the Licensed Tournaments granted under this Agreement will revert back to Licensor, except that Sections 1, 6 and 9 shall survive in accordance with their terms.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as As of the date of terminationthe Termination (the “Termination Date”), Salix Licensee shall, and shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after cause the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
Host to: (i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of cease all affiliation with the date of termination.
Licensed Tournaments; (ii) All then outstanding Firm Orders automatically shall be cancelled.
either return or destroy (at Licensor’s sole and absolute discretion) any software, data, materials, including but not limited to Confidential Information of Licensor, in Licensee’s or the Host’s possession; (iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for cease all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as use of the effective date of termination Licensed Marks and Manufactured by Salix in accordance with Firm Orders then outstanding.
destroy or return to Licensor (dat Licensor’s sole and absolute discretion) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in materials within its possession as of or control bearing or containing the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelledLicensed Marks; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shallbe responsible, at Salix’s expense (excluding any refunds to customersits sole cost and expense, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which requirements the gaming authorities may impose or otherwise may be imposed by applicable law solely on Licensee or the Host as a payment result of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(ivc) The parties will make good faith efforts not less than sixty (60) days prior to the Termination Date to develop a transition plan: (i) to provide an orderly transition of the removal of any World Series of Poker indicia (including the Licensed Marks and any other Licensor intellectual property) from the Host Property; and (ii) to provide for the removal of any, software or other property in Licensee’s or the Host’s possession that is owned by Licensor.
(d) Each party acknowledges and agrees that shall return the Confidential Information of the other party shall have no liability of any kind to such first party, and permanently delete, purge and destroy all Confidential Information in electronic form (other than as archival copies of Confidential Information on back up media provided in this Section 11.9(hthat such Confidential Information is never restored for use), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(ie) Upon termination Within seven (7) business days after the Termination Date, Licensee will provide to Licensor an officer’s certificate of Licensee’s compliance with its obligations under this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled5.6.
(iif) ▇▇▇▇▇▇ immediately Licensee shall cease pay all salesFees, marketing cost and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Productexpense reimbursements, and ▇▇▇▇▇▇ shall deliver such Generic Product all other amounts due to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ Licensor through the Termination Date or fees and expenses for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of services performed after the date of the notice for such termination.
Termination Date within thirty (j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (4530) days after receipt of an invoice for the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profitssame.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Trademark License Agreement (Caesars Acquisition Co)
Effect of Expiration or Termination. After expiration or termination of this Licensing Agreement for any reason:
(a) Upon All rights granted to the Licensee shall forthwith revert to UCANN and all of the Products, Packaging, Concentrate or Prana IP shall remain the sole property of UCANN. Licensee shall provide UCANN with contact information for and authorization to UCANN to work with any vendors used by Licensee in any way related to the Products, Packaging, Concentrate, or Prana IP;
(b) Licensee shall immediately discontinue the production, manufacture, advertising, use, distribution and sale of all Products, Packaging and marketing materials, Trademarks, and all similar marks, subject to any right of Sell-Off Period pursuant to paragraph 12.2 below, or if otherwise authorized in writing by UCANN;
(c) Payments shall be payable in accordance with Section 10 above and shall immediately become due and payable to UCANN;
(d) Licensee shall deliver to UCANN within 30 business days a statement indicating the number and description of the Products in stock or in the process of manufacture as at such expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the earlier termination of this Agreement. UCANN may, includingupon reasonable prior notice, without limitation (A) require the costs of all Materials purchased by Salix up Licensee to conduct a physical inventory in the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as presence of the effective date of termination and Manufactured by Salix UCANN’s duly authorized representative in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant order to Section 3.1(b) has not been reimbursed by Salix ascertain or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse verify such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.statement;
(e) Upon termination of this Agreement Licensee shall deliver to UCANN all creations, designs, materials and intellectual property created or licensed by ▇▇▇▇▇▇ Licensee pursuant to Section 11.3 paragraph 2.1 above or provided to it by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.UCANN;
(f) Upon All warranties and indemnification obligations of the parties and all provisions which expressly or by implication are intended to apply after expiration or termination of this Agreement by Salix pursuant agreement shall survive and continue to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.apply;
(g) Upon Any termination hereunder will be without prejudice to any of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelledUCANN’s rights or remedies.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Supply, Distribution, and Licensing Agreement (United Cannabis Corp)
Effect of Expiration or Termination. Notwithstanding any other rights or obligations a Party or its Affiliates may have under this Agreement or under Applicable Law, except as otherwise provided herein (aincluding Section 6.1(f) Upon expiration with respect to expiration), upon termination (but not expiration) of this Agreement (or in the case of a termination by Biodexa pursuant to Section 12.2(b) with respect to one or more countries, such provisions shall only apply to such particular country being terminated and shall have no application or effect on any of the Term other countries not being terminated), (i) all rights and licenses granted by Melior to Biodexa and its Affiliates and all rights and licenses granted by Biodexa to Melior and its Affiliates hereunder shall terminate and revert to the Party granting such rights and all of the Parties’ obligations under this AgreementAgreement shall, ▇except as specifically provided in Section 12.3 or this Section 12.4, cease, terminate and be of no further force and effect from and after the effective date of expiration or termination, (ii) following mutual agreement by Biodexa and M▇▇▇▇▇ regarding a customary reverse royalty payment obligation, Biodexa shall be permitted transfer all right, title and interest in and to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant all Development Data to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expenseMelior, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly any royalties that have accrued and would otherwise be payable hereunder shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to be prorated through the effective date of termination which cannot be diverted to Salix’s other uses expiration or termination. The Parties and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work their Affiliates shall cooperate in process which cannot be diverted to Salix’s other uses held by Salix as informing relevant Governmental Authorities of the effective date cessation of termination their activities in relation to the Licensed Products. In addition, the Parties shall, and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with shall ensure that their respective Affiliates, promptly return to the SEC.
other Parties or destroy (iv) To the extent any amount reimbursable by Salix pursuant subject to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as written certification of the date of terminationlatter) all Confidential Information in written, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) electronic or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Productmaterial form, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
all copies thereof (e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall except one copy which may be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full monthkept for record-period prior to the date of terminationkeeping purposes only), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and belonging to such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of terminationother Parties. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges Biodexa covenants and agrees that the other party shall have no liability of it will fund to closure any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted active and filed separately ongoing Clinical Study involving previously dosed patients with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Licensed Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.,
Appears in 1 contract
Effect of Expiration or Termination. (a) Upon Termination or expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant for any reason shall be without prejudice to Section 11.2(a) any rights which shall have accrued to the benefit of either Party prior to such termination or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, expiration and shall eithernot release either party from any obligation that has accrued prior to such expiration or termination, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, including without limitation (A) the costs of all Materials purchased by Salix up any obligation to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent pay any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix which accrued or credited against Profits became due and payable by ▇▇▇▇▇▇ as of under the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination terms and conditions of this Agreement by Salix pursuant prior to Section 11.2(b) such expiration or termination. Sections 1, 2.10, 4.1, 4.2, 4.3, 4.9 (c):
to extent provided therein), 7.3, 8.1, 9, 10 (i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses extent provided therein), 11.5 and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination 12 of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 survive any expiration or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(ivb) Each party acknowledges and agrees that the other party shall have no liability of Upon any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement by any party for any reason, the licenses granted by PDL to SG in Section 2 shall terminate and SG shall discontinue all further research and development of Licensed Products. Furthermore, SG shall promptly return to PDL (or at PDL’s request destroy) all Confidential Information of PDL and all Cell Lines, PDL CD33 Antibodies and Materials in SG’s possession or control.
(c) Any sublicense permitted under this Agreement, to the extent it is consistent with the rights and obligations due PDL hereunder, shall, at such sublicensee’s option in its sole discretion, survive termination of this Agreement and be deemed a direct license from PDL provided that: (i) the sublicensee is not in material breach of the terms of its sublicense at the time of such termination; (ii) upon termination of this Agreement, such sublicensee agrees in writing to be bound by all terms of this Agreement applicable to SG, and can reasonably show the capacity to comply with such terms to the same extent as if such sublicensee were an original Party hereto; (iii) the obligations of PDL under such direct license shall not be greater than the obligations of PDL under this Agreement; and (iv) the scope of such direct license shall not be broader than the rights sublicensed by SG to such sublicense.
(d) In the event of any termination of this Agreement, other than termination by SG pursuant to Section 11.6. 11.3 or 11.4, at PDL’s option, in its sole discretion upon written notice to SG within [***] Confidential treatment requested; certain after the effective date of termination, SG shall negotiate in good faith with PDL for an exclusive license (solely for the purpose of developing, manufacturing and commercializing Licensed Products) to any SG CD33 Patents and related know-how and intellectual property owned and controlled by SG that covers or is used in Licensed Products (or their development, manufacture or commercialization) under reasonable terms and conditions. If the Parties mutually agree on such terms and enter into such an exclusive license agreement, then SG shall transfer to PDL all of SG’s research, development, manufacturing and commercialization program for all Licensed Products (including all Second Generation CD33 Products and Second Generation CD33 Improvements). Subject to reasonable availability, SG shall also make its employees and relevant consultants reasonably available during the first year following termination to consult with qualified PDL personnel on issues and questions related to development and manufacturing of Licensed Products, provided that in no event shall SG be obligated to provide more than [***] and [***] per week thereafter in performing such activities. PDL shall pay SG at an annual rate of [***], for research, development, manufacturing, technology transfer or other [***] Certain information on this page has been omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant Securities and Exchange Commission. Confidential treatment has been requested with respect to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all salesthe omitted portions. assistance to PDL hereunder, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of in [***] from the date of the notice termination, and as reasonably requested by PDL for SG time allocated to such termination.
(j) Upon termination of this Agreement activities beyond [***], provided that such SG resources are available. Such FTE rate shall be increased by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution [***] of the Generic Product Effective Date and ▇▇▇▇▇▇ upon every [***] thereafter during the Term. Such cooperation and assistance, as reasonably requested by PDL (or its designee), shall immediately destroy any inventory of Generic Product under its controlcontinue with as little disruption and delay as reasonably possible to the development, at its expensemanufacture, and commercialization of Licensed Products (including, if applicable, by providing technology (including know-how) transfer, training and consultation and by transferring manufacturing processes and related technology). SG shall either, at Salix’s option, (A) allow also transfer to PDL all applicable regulatory filings and approvals for Licensed Products together with all clinical data and similar information for Licensed Products. SG shall use commercially reasonable efforts to effect a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately transfer substantially in accordance with the SECforegoing from all of its applicable sublicensees, affiliates and contractors.
Appears in 1 contract
Effect of Expiration or Termination. (a) i. Upon any expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement: (a) each Qualification shall automatically terminate, includingCompany shall cease all references to all of its Qualifications and, without limitation except as expressly provided in Section 8(d)(ii) below, all Licenses shall automatically terminate and (Ab) the costs provisions of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses Sections 4, 5(d), 6, 7, 8(d) and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination 9 through 20 of this Agreement by Salix pursuant to Section 11.2(b) shall survive. Upon any revocation, expiration or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreementany specific Qualification, including, without limitation (A) except as expressly provided in the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination remainder of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately Section, Company shall cease all sales, marketing references to such Qualification and distribution of all Licenses shall automatically terminate except to the Generic Product extent applicable to any Qualifications that remain in full force and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseeffect.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of . Notwithstanding the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h)foregoing, for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve twenty-four (1224) months from the effective date of termination of any GP Test Tool Qualification (the “Tail Period”), Company may continue to use the Licensed Works and Titles to the extent necessary to provide Direct Test Tool Support to those End Users who were authorized to use the Test Tool covered by such terminationterminated Qualification as of such termination date; provided that if Company continues to so use the Licensed Works or Titles during the Tail Period after notice of an Infringement Claim relating to such Test Tool or the Licensed Works or Titles used to create, ▇▇▇▇▇▇ develop or implement such Test Tool, then Company shall make monthly payments indemnify GP against any and all claims, causes of action or damages arising from or in connection with such use or the use of any related systems. Without in any way broadening the limitations set forth in the preceding sentence, Company’s use of Licensed Works, Titles or Test Tools as permitted by the preceding sentence during the Tail Period will continue to Salixbe subject to all restrictions, not later than forty-five (45) days after terms and conditions of this Agreement. Upon the end earlier of each month during such twelve (12) month period, each of which payments shall be equal Company’s ceasing to [*]% offer any Test Tools or the expiration of the Average Monthly Profits.
Tail Period, Company will (kA) Upon termination make no further use of this Agreement the Licensed Works or Titles (except to the extent Company may otherwise be entitled to use the same solely in its capacity as a member of GP), (B) return or destroy all copies of the Licensed Works in Company’s possession or under its control and expunge all electronic copies (except to the extent otherwise permitted by Salix pursuant GP), (C) recall, or cause to Section 11.4(b):
be recalled, all Test Tools then in use by any third party and (iD) ▇▇▇▇▇▇ immediately shall cease destroy all sales, marketing and distribution other materials that depict or incorporate any of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expenseLicensed Works or Titles.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Qualification and Listing Agreement
Effect of Expiration or Termination. (a) Upon The expiration or earlier termination of this Agreement shall be without prejudice to any rights or obligations of the Term Parties that may have accrued prior to such termination. Those provisions that by their terms or intent are required to survive the expiration or earlier termination of the Agreement in order to give effect to the intent of the Parties shall so survive. Without limiting the foregoing, the provisions of Sections 4.5, 6.3 and 8.3 and ARTICLE 5, ARTICLE 7, ARTICLE 9 and ARTICLE 10 shall survive the expiration or termination of this AgreementAgreement and continue thereafter in accordance with and to the extent of their terms. Except as otherwise expressly provided herein, ▇▇▇▇▇▇ termination of this Agreement in accordance with the provisions hereof shall not limit remedies that may otherwise be permitted to sell off any inventory of Generic Product available at law or in its possession as of the date of expirationequity.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) expiration or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the earlier termination of this Agreement, includingeach Party, without limitation (A) at the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as request of the effective date other, shall return all data, files, records and other materials in its possession or Control containing or comprising the other Party’s Confidential Information except that the legal department of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of terminationParty may retain one copy solely for archival purposes.
(c) Upon any termination of this Agreement by Salix Intercept pursuant to Section 11.2(b8.2(a) or (c):
by PharmaZell pursuant to Section 8.2(c), (i) ▇▇▇▇▇▇ PharmaZell shall be permitted return to sell off Intercept all Intercept Materials, (ii) Intercept shall purchase from PharmaZell the amount of Supplied Material that is subject to Work Orders outstanding at the time of such termination, (iii) Intercept shall reimburse PharmaZell for work in process and Materials that PharmaZell has purchased for the purpose of supplying Supplied Material to Intercept in accordance with the delivered Work Orders, and (iv) Intercept shall pay PharmaZell’s direct cost for any inventory such work in process in accordance with the Work Orders and PharmaZell’s purchase price from its suppliers for any such Materials ordered for such Work Orders that have a minimum of Generic Product [**] shelf life and have been stored and controlled by PharmaZell per the Quality Agreement; provided, however that PharmaZell shall use reasonable best efforts to return such Materials to suppliers or use such Materials in its possession as the manufacture of product for third parties. In the event of termination of this Agreement by Intercept pursuant to Section 8.2(b), 8.2(c) or 8.2(d), at the request of Intercept, PharmaZell shall fulfill all outstanding Work Orders for Supplied Materials prior to the effective date of terminationsuch termination and to the extent not used to fulfill Work Orders at Intercept’s request, PharmaZell shall return to Intercept all Intercept Materials.
(iid) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual Except as and reasonable costs incurred to the extent contemplated by Salix to complete activities associated with the Section 8.3(c), upon expiration of this Agreement or any earlier termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ PharmaZell immediately shall cease all sales, marketing and distribution Manufacturing of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product Supplied Materials pursuant to Salix at Salix’s expensethis Agreement.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 Following expiration or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party PharmaZell shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination provide Intercept with such reasonable cooperation and support with respect to regulatory matters as Intercept may require in order to dispose of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
previously purchased API, (ii) ▇▇▇▇▇▇ immediately shall cease all salesgrant to Intercept a perpetual, marketing irrevocable, non-exclusive royalty-free license (with the right to grant sublicenses) under know-how, patents and distribution other intellectual property rights owned, licensed or otherwise controlled by PharmaZell (or any of its Affiliates) as may be necessary or useful for the Generic Product purpose of making and Salix promptly shall repurchase all saleable inventory of having made the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, API and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
API Precursor and (iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation within thirty (30) days of customer supply contracts that exist as such expiration or termination, provide to Intercept copies of the date physical embodiment of those processes, protocols, procedures, methods, tests and other know-how, relating to the Manufacturing of the notice API and API Precursor. In addition, PharmaZell shall provide reasonable assistance to Intercept and its Affiliates with respect to assisting Intercept and its Affiliates in obtaining all necessary regulatory approvals and/or modifying existing Regulatory Approvals for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution the Manufacture of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destructionAPI.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Manufacturing Agreement (Intercept Pharmaceuticals Inc)
Effect of Expiration or Termination. (a) Upon The expiration or earlier termination of this Agreement shall be without prejudice to any rights or obligations of the Term Parties that may have accrued prior to such termination. Those provisions that by their terms or intent are required to survive the expiration or earlier termination of the Agreement in order to give effect to the intent of the Parties shall so survive. Without limiting the foregoing, the provisions of Sections 4.5, 6.3 and 8.3 and ARTICLE 5, ARTICLE 7, ARTICLE 9 and ARTICLE 10 shall survive the expiration or termination of this AgreementAgreement and continue thereafter in accordance with and to the extent of their terms. Except as otherwise expressly provided herein, ▇▇▇▇▇▇ termination of this Agreement in accordance with the provisions hereof shall not limit remedies that may otherwise be permitted to sell off any inventory of Generic Product available at law or in its possession as of the date of expiration.equity.
(b) Upon expiration or earlier termination of this Agreement, each Party, at the request of the other, shall return all data, files, records and other materials in its possession or Control containing or comprising the other Party’s Confidential Information except that the legal department of such Party may retain one copy solely for archival purposes.
(c) Upon any termination of this Agreement by Salix Intercept pursuant to Section 11.2(a8.2(a) or by ▇▇▇▇▇▇ PharmaZell pursuant to Section 11.8:
8.2(c), (i) ▇▇▇▇▇▇ immediately PharmaZell shall cease return to Intercept all salesIntercept Materials, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then Intercept shall purchase from PharmaZell the amount of Supplied Material that is subject to Work Orders outstanding Firm Orders automatically shall be cancelled.
at the time of such termination, (iii) ▇▇▇▇▇▇ promptly Intercept shall reimburse Salix PharmaZell for all actual work in process and reasonable costs incurred by Salix Materials that PharmaZell has purchased for the purpose of supplying Supplied Material to complete activities associated Intercept in accordance with the delivered Work Orders, and (iv) Intercept shall pay PharmaZell’s direct cost for any such work in process in accordance with the Work Orders and PharmaZell’s purchase price from its suppliers for any such Materials ordered for such Work Orders that have a minimum of [**] shelf life and have been stored and controlled by PharmaZell per the Quality Agreement; provided, however that PharmaZell shall use reasonable best efforts to return such Materials to suppliers or use such Materials in the manufacture of product for third parties. In the event of termination of this Agreement by Intercept pursuant to Section 8.2(b), 8.2(c) or 8.2(d), at the request of Intercept, PharmaZell shall fulfill all outstanding Work Orders for Supplied Materials prior to the effective date of such termination and to the extent not used to fulfill Work Orders at Intercept’s request, PharmaZell shall return to Intercept all Intercept Materials.
(d) Except as and to the extent contemplated by Section 8.3(c), upon expiration of this Agreement or any earlier termination of this Agreement, including, without limitation (A) the costs PharmaZell immediately shall cease all Manufacturing of all Supplied Materials purchased by Salix up pursuant to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SECthis Agreement.
(ive) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix Following expiration or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
PharmaZell shall (i) All then outstanding Firm Orders automatically shall be cancelled.
provide Intercept with such reasonable cooperation and support with respect to regulatory matters as Intercept may require in order to dispose of previously purchased API, (ii) ▇▇▇▇▇▇ immediately shall cease all salesgrant to Intercept a perpetual, marketing irrevocable, non-exclusive royalty-free license (with the right to grant sublicenses) under know-how, patents and distribution other intellectual property rights owned, licensed or otherwise controlled by PharmaZell (or any of its Affiliates) as may be necessary or useful for the Generic Product purpose of making and Salix promptly shall repurchase all saleable inventory of having made the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, API and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
API Precursor and (iii) To the extent any amount reimbursable by Salix pursuant within thirty (30) days of such expiration or termination, provide to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as Intercept copies of the date physical embodiment of terminationthose processes, Salix shall reimburse such amount protocols, procedures, methods, tests and other know-how, relating to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory Manufacturing of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ API and API Precursor. In addition, PharmaZell shall provide reasonable assistance to Intercept and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ assisting Intercept and its Affiliates in obtaining all necessary regulatory approvals and/or modifying existing Regulatory Approvals for the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution Manufacture of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of terminationAPI. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Manufacturing Agreement (Intercept Pharmaceuticals, Inc.)
Effect of Expiration or Termination. (a) Upon expiration of the Term or earlier termination of this Agreement, ▇▇▇▇▇▇ agreement;
(i) all rights granted to the Licensee shall forthwith revert to the Licensor;
(ii) Royalties shall be permitted payable in accordance with paragraph 2 above and all other payments accrued shall immediately become due and payable to the Licensor;
(iii) the Licensee shall deliver to the Licensor within seven (7) business days a statement indicating the number and description of the Products in stock or in the process of manufacture as at such expiration of the Term or earlier termination of this agreement. The Licensor may, upon reasonable prior notice, require the Licensee to conduct a physical inventory in the presence of the Licensor's duly authorized representative in order to ascertain or verify such statement;
(iv) the Licensee shall cease the manufacture and marketing and (subject to any right of sell-off pursuant to paragraph 9(b) below) the distribution and sale of the Products;
(v) the Licensee shall deliver to the Licensor all creations, designs, materials and intellectual property created or licensed by Licensee pursuant to paragraph 3(u) above or provided to it by the Licensor or the AFL;
(vi) all warranties and indemnification obligations of the parties and all provisions which expressly or by implication are intended to apply after expiration or termination of this agreement shall continue to apply;
(vii) any termination hereunder will be without prejudice to any of Licensor's rights or remedies.
(b) Only if the Term has expired due to the passage of time, then the Licensee shall have the non-exclusive right for a period of ninety (90) days following the expiration of the Term (herein referred to as "the Sell Off Period") to sell off any the Licensee's inventory of Generic Product in its possession Products existing as of the date of expirationsuch expiration PROVIDED THAT such sales may be made by the Licensee only at full price to recognized wholesale and retail outlets unless the Licensor shall otherwise consent in writing. The Licensee shall not in any event have the right to manufacture any of the Products either in anticipation of the expiration of the Term or during the Sell Off Period. Within seven (7) business days following the expiration of the Term, the Licensee shall furnish the Licensor with a detailed written statement as to the inventory of the Products as of the expiration of the Term. Notwithstanding the foregoing the Licensor shall have the right to terminate the Licensee's aforesaid "sell oft" rights with respect 10 any or all of the Products (as the Licensor may elect) by so notifying the Licensee and purchasing from the Licensee at the Licensee's actual out of pocket cost of manufacture such of the Products as the Licensor desire The Licensee shall be required to render statements and pay royalties to the Licensor in accordance with the terms and conditions of this agreement for all sales of the Products during the Sell Off Period in accordance with paragraph 2 above.
(bc) Upon Within seven (7) business days following the expiration of the Term or earlier termination of this Agreement by Salix pursuant agreement or the end of the Sell Off Period (as applicable), the Licensee shall furnish the Licenser with a further detailed written statement as to Section 11.2(athe inventory of each of the Products as of the expiration of the Term or earlier termination of this agreement or the end of the Sell Off Period (as applicable) or by ▇▇▇▇▇▇ pursuant to Section 11.8and the Licensor shall at its election either:
(i) ▇▇▇▇▇▇ immediately shall cease purchase all sales, marketing and distribution or part of such inventory or any or all of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory Products at the Licensee's actual out of Generic Product under its control, at its expense, and shall either, at Salix’s option, pocket cost of manufacture plus ten percent (A10%) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.therefor; or
(ii) All then outstanding Firm Orders automatically shall be cancelled.require the Licensee to destroy such remaining inventory in a manner satisfactory to the Licensor in the presence of the Licensor's representative and/or provide the Licensor with an affidavit of such destruction sworn to by one of the Licensee's principal officers;
(iii) ▇▇▇▇▇▇ in the event that the Licensor elects to purchase any or all of such inventory pursuant to paragraph 9(c)(i) above, the Licensee shall promptly shall reimburse Salix for ship all actual and reasonable costs incurred by Salix to complete activities associated with such items at the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up Licensee's expense to the effective date Licenser or its designee or shall make them available at the Licensor's place of termination which cannot be diverted business for the Licensor or its designee to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its take possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.thereof
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
The Licensee shall not during the six (i6) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of month period preceding the date of termination at on which the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product Term is due to Salix at Salix’s expenseexpire manufacture excess Products.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Licensing Agreement (Collectible Concepts Group Inc)
Effect of Expiration or Termination. (a) Upon Following the expiration of the Term term of this Agreement with respect to a Product in any country in a Territory pursuant to Section 12.1(a) or 12.1(b), Genentech shall have a royalty-free, paid-up, perpetual, irrevocable and sublicenseable right and license, exclusive for [CONFIDENTIAL TREATMENT REQUESTED] and nonexclusive thereafter, to continue to develop, make, have made, use, market, sell, have sold, offer to sell, import, distribute and otherwise exploit such Product in such country, and the exclusive, perpetual, irrevocable, sublicenseable, royalty-free and paid-up right and license to use the Licensed Technology in connection therewith. To that end, Genentech may continue to hold and use all data, reports, records, information and materials that relate to or are prepared in the course of the Development Program, and may hold all INDs, Registration Applications, Registrations and other regulatory filings made or filed by Genentech for such Products pursuant to this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product and may in its possession as of the date of expirationsole discretion continue any sublicense granted by Genentech under this Agreement.
(b) Upon termination Following expiration of the term of this Agreement by Salix in its entirety pursuant to Section 11.2(a12.1(c), Genentech shall have a royalty-free, paid-up, perpetual, irrevocable and sublicenseable right and license, exclusive for [CONFIDENTIAL TREATMENT REQUESTED] and nonexclusive thereafter, to continue to develop, make, have made, use, market, sell, have sold, offer to sell, import, distribute and otherwise exploit all Products in the Territory, and the exclusive, perpetual, irrevocable, sublicenseable, royalty-free and paid-up right and license to use the Licensed Technology in connection therewith. To that end, Genentech may continue to hold and use all data, reports, records and materials that relate to or are prepared in the course of the Development Program, and may hold all INDs, Registration Applications, Registrations and other regulatory filings made or filed by Genentech for all Products, pursuant to this Agreement, and may in its sole discretion continue any sublicense granted by Genentech under this Agreement.
(c) or If this Agreement is terminated by ▇▇▇▇▇▇ Inspire with respect to a particular Product pursuant to Section 11.8:
12.2 by reason of a material breach or default by Genentech, or terminated by Genentech with respect to a particular Product pursuant to Section 12.3, in addition to any other remedies available to the Parties at law or in equity: (i) ▇▇▇▇▇▇ immediately at Genentech's expense, Genentech shall cease promptly transfer to Inspire copies of all salesrelevant data, marketing reports, records and distribution materials in Genentech's possession or control that relate to the Product and return to Inspire all relevant records and materials in Genentech's possession or control containing Confidential Information of Inspire with respect to such Product (provided that Genentech may keep one (1) copy of such Confidential Information of Inspire for archival purposes only); (ii) Genentech shall, upon Inspire's request and at Genentech's expense, provide Inspire with all information necessary or desirable to cross-reference and/or assume responsibility for any of Genentech's INDs, Registrations Applications, Registrations and other regulatory filings in the Fields with respect to such Product; (iii) the license granted by Inspire to Genentech under Section 6.1 shall terminate; and (iv) all sublicenses granted by Genentech under this Agreement shall continue in full force and effect in accordance with the terms and conditions of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expenserespective sublicense agreements, and Genentech will assign such sublicense agreements to Inspire; provided, however, that this Section 12.4(c) shall eithernot apply to any Confidential Information, at Salix’s option, (A) allow licenses and sublicenses relating to any Products for which there has not been a Salix representative to be present during such destruction or (B) provide a certificate of such destructiontermination.
(d) If this Agreement is terminated by Inspire pursuant to Section 12.2 by reason of a material breach or default by Genentech, or terminated by Genentech pursuant to Section 12.3, in addition to any other remedies available to the Parties at law or in equity: (i) Genentech shall promptly transfer to Inspire copies of all data, reports, records and materials in Genentech's possession or control that relate to the Development Program and return to Inspire all relevant records and materials in Genentech's possession or control containing Confidential Information of Inspire (provided that Genentech may keep one (1) copy of such Confidential Information of Inspire for archival purposes only); (ii) All then outstanding Firm Orders automatically Genentech shall, upon Inspire's request and at Genentech's expense, provide Inspire with all information necessary or desirable to cross-reference and/or assume responsibility for any of Genentech's INDs, Registrations Applications, Registrations and other regulatory filings in the Fields with respect to all Products; (iii) the license granted by Inspire to Genentech under Section 6.1 shall be cancelledterminate; and (iv) all sublicenses granted by Genentech under this Agreement shall continue in full force and effect in accordance with the terms and conditions of the respective sublicense agreements, and Genentech shall assign such sublicense agreements to Inspire.
(iiie) ▇▇▇▇▇▇ promptly If this Agreement is terminated by Genentech pursuant to Section 12.2 by reason of a material breach or default by Inspire, in addition to any other remedies available to Genentech at law or in equity: (i) the license granted to Inspire by Genentech under Section 6.2 shall reimburse Salix terminate; (ii) Genentech shall have an exclusive, royalty-free, paid-up, perpetual, irrevocable and sublicenseable right to continue to develop, make, have made, use, market, sell, have sold, offer to sell, import, distribute and otherwise exploit any Products in the Territory, and the exclusive, perpetual, irrevocable, sublicenseable, royalty-free and paid-up right and license to use the Licensed Technology in connection therewith. To that end, Genentech may continue to hold and use all data, reports, records, information and materials that relate to or are prepared in the course of the Development Program, and may hold all INDs, Registration Applications, Registrations and other regulatory filings made or filed by Genentech for all actual the Products, pursuant to this Agreement, and reasonable costs incurred may in its sole discretion continue any sublicenses granted by Salix to complete activities associated with Genentech under this Agreement.
(f) At the expiration or any termination of this Agreement, including, without limitation (A) the costs all of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix Genentech's payment obligations under this Agreement shall terminate as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix such expiration or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount except for payments to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination of this Agreement by Salix pursuant to Inspire for any royalties or Operating Profit or Loss percentage under Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up 7 that accrued prior to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of such expiration or termination and Manufactured are due and payable by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix Genentech to Inspire pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: Development, License and Supply Agreement (Inspire Pharmaceuticals Inc)
Effect of Expiration or Termination. (a) Upon Termination or expiration of the Term of this Agreement, ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(b) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy for any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically reason shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly without prejudice to any rights which shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up have accrued to the effective date benefit of either Party prior to such termination which cannot be diverted to Salix’s other uses or expiration. Sections 1, 4.6, 7.3, 8, 9, 10, 11 and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination 12 of this Agreement by Salix pursuant to Section 11.2(b) shall survive any expiration or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of termination), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (C) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
(iv) Each party acknowledges and agrees that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(ib) Upon any termination of this Agreement by Salix pursuant SG under Section 11.3, the licenses granted by GNE to SG in Section 11.2(e):
(i) All then outstanding Firm Orders 2 shall thereafter automatically become perpetual; provided, however that SG shall be cancelledcontinue to pay to GNE, for the remainder of the Term for each Licensed Product, royalties as set forth in Section 4.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(jc) Upon any termination of this Agreement by ▇▇▇▇▇▇ pursuant GNE under Section 11.2 or 11.3, the licenses granted by GNE to SG in Section 11.4(b):2 shall terminate and SG, at GNE’s request, shall return to GNE all Materials and Technology.
(d) Any sublicense permitted under this Agreement, to the extent it is consistent with the rights and obligations due GNE hereunder, shall survive termination of this Agreement and be deemed a direct license from GNE provided that (i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution the sublicensee is not in material breach of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory terms of Generic Product under its control, sublicense at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date time of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45ii) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon upon termination of this Agreement, such sublicensee agrees in writing to be bound by all terms of this Agreement by Salix pursuant applicable to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic ProductSG, and ▇▇▇▇▇▇ shall deliver can reasonably show the capacity to comply with such Generic Product terms to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
the same extent as if such sublicensee were an original party hereto, (iii) For a period the obligations of twelve GNE under such direct license shall not be greater than the obligations of GNE under this Agreement, and (12iv) months from the effective date scope of such termination, ▇▇▇▇▇▇ direct license shall make monthly payments not be broader than the rights sublicensed by SG to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SECsublicensee.
Appears in 1 contract
Effect of Expiration or Termination. (a) Upon expiration If this Agreement expires or is terminated by any Party pursuant to this Section 13, all rights and obligations of the Term Parties hereunder shall terminate except as specified in Section 13.9, and in addition to any other remedies available to the Parties at law or in equity: (i) Endo shall promptly transfer to DURECT copies of all data, reports, records and materials in its possession or control that relate solely to the Product, Finished Product and Implanter, and return to DURECT all relevant records and materials in its possession or control containing Confidential Information of DURECT (provided that Endo may keep one copy of such Confidential Information of DURECT for archival purposes only); (ii) Endo shall transfer to DURECT, or shall cause its designees to transfer to DURECT, ownership of all INDs, Registration Applications, Registrations and other regulatory filings made or filed for the Product (to the extent that any are held in Endo's name), if permitted by applicable laws and regulations; (iii) Endo shall assign to DURECT, and hereby does assign, conditioned upon and effective only upon the termination or expiration of this Agreement, ▇▇▇▇▇▇ with no additional consideration all of Endo's right, title and interest in the Co-Owned Trademarks (which shall thereafter be permitted to sell off any inventory of Generic Product in its possession as of the date of expiration.
(bdeemed DURECT Trademarks) Upon termination of this Agreement by Salix pursuant to Section 11.2(a) or by ▇▇▇▇▇▇ pursuant to Section 11.8:
(i) ▇▇▇▇▇▇ immediately shall cease including all salesgoodwill associated therewith, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate of such destruction.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for all actual and reasonable costs incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(iv) To Endo shall execute, acknowledge and deliver such further instruments, and do all such other acts, as may be necessary or appropriate in order to carry out the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(c) Upon termination purposes and intent of this Agreement by Salix pursuant Section 13.6 (subject to Section 11.2(b) or (c):
(i) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) ▇▇▇▇▇▇ promptly shall reimburse Salix for DURECT reimbursing all actual and reasonable costs out-of-pocket expenses incurred by Salix to complete activities associated with the termination of this Agreement, including, without limitation (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable and (B) the Purchase Price for any finished Generic Product and the cost of any work Endo in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding.
(d) Upon termination of this Agreement by Salix pursuant to Section 11.2(d):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(e) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.3 or by Salix pursuant to Section 11.8:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ shall be permitted to sell off any inventory of Generic Product in its possession as of the date of termination.
(iii) To the extent any amount reimbursable by Salix pursuant to Section 3.1(b) has not been reimbursed by Salix or credited against Profits payable by ▇▇▇▇▇▇ as of the date of termination, Salix shall reimburse such amount to ▇▇▇▇▇▇ within sixty (60) days after the date of termination.
(f) Upon termination of this Agreement by Salix pursuant to Section 11.2(f) or 11.4(a):
(i) All then outstanding Firm Orders automatically shall be cancelled; provided that, if on the date of termination ▇▇▇▇▇▇ holds less than [*] months’ of inventory of the Generic Product (determined based on the average monthly amount of Generic Product sold by ▇▇▇▇▇▇ and its Affiliates during the [*] full month-period prior to the date of terminationconnection therewith), then, at ▇▇▇▇▇▇’▇ option, Salix will fulfill, in accordance with the terms of this Agreement and such Firm Orders, that portion of any outstanding Firm Orders necessary to supply ▇▇▇▇▇▇ a quantity of Generic Product equal to the difference between [*] months’ inventory and the quantity of Generic Product actually held by ▇▇▇▇▇▇ on the date of termination.
(ii) ▇▇▇▇▇▇ shall be permitted a sell-off period of [*] days to sell off any inventory of Generic Product in its possession as of the date of termination. ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product at the end of such selloff period and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the end of such selloff period at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(g) Upon termination of this Agreement by Salix pursuant to Section 11.5:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product.
(iii) Salix promptly shall repurchase (A) all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the date of termination and (B) all Generic Product recovered by ▇▇▇▇▇▇ from customers in accordance with subsection (iv) below, in each case at the Purchase Price paid for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iv) Under the direction of Salix, ▇▇▇▇▇▇ shall, at Salix’s expense (excluding any refunds to customers, which shall be paid by [*] Confidential treatment requested; certain information omitted and filed separately with the SEC. ▇▇▇▇▇▇ and taken into account in the calculation of Net Sales), use its best efforts to recover all Generic Product which has been delivered to ▇▇▇▇▇▇ but is no longer within ▇▇▇▇▇▇’▇ control, other than such Generic Product that has been consumed; provided that if any refunds paid to a customer by ▇▇▇▇▇▇ under this Section 11.8(g)(iv) would reduce the Profits for any period with respect to which a payment of Profits had already been made by ▇▇▇▇▇▇ to Salix pursuant to Section 3.2, Salix promptly shall pay to ▇▇▇▇▇▇ the amount necessary such that the proper allocation of Profits for such period pursuant to Section 3.1, taking into account such refunds, shall be achieved.
(h) Upon termination of this Agreement by either party pursuant to Section 11.6:
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control and shall either, at Salix’s option, (i) allow a Salix representative to be present during such destruction or (ii) provide a certificate of such destruction.
(iii) Salix shall bear [*]% and ▇▇▇▇▇▇ shall bear [*]% of all actual and reasonable costs incurred by the parties to complete activities associated with the termination of this Agreement, including, without limitation, (A) the costs of all Materials purchased by Salix up to the effective date of termination which cannot be diverted to Salix’s other uses and which are non-refundable, (B) the cost of any Generic Product and any work in process which cannot be diverted to Salix’s other uses held by Salix as of the effective date of termination and Manufactured by Salix in accordance with Firm Orders then outstanding, and (Cv) the Purchase Price paid by ▇▇▇▇▇▇ for any Generic Product held by ▇▇▇▇▇▇ as DURECT shall promptly return to Endo all relevant records and materials in DURECT's possession or control containing Confidential Information of the date of termination. Each party shall use Commercially Reasonable Efforts to minimize the costs it incurs to complete activities associated with the termination of this Agreement.
Endo (iv) Each party acknowledges and agrees provided that the other party shall have no liability of any kind to such first party, other than as provided in this Section 11.9(h), for termination of this Agreement under Section 11.6. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
(i) Upon termination of this Agreement by Salix pursuant to Section 11.2(e):
(i) All then outstanding Firm Orders automatically shall be cancelled.
(ii) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(iii) Salix shall reimburse ▇▇▇▇▇▇ for any reasonable and customary supplier penalties that are incurred by ▇▇▇▇▇▇ for cancellation of customer supply contracts that exist as of the date of the notice for such termination.
(j) Upon termination of this Agreement by ▇▇▇▇▇▇ pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and ▇▇▇▇▇▇ shall immediately destroy any inventory of Generic Product under its control, at its expense, and shall either, at Salix’s option, (A) allow a Salix representative to be present during such destruction or (B) provide a certificate DURECT may keep one copy of such destructionConfidential Information of Endo for archival purposes only).
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits.
(k) Upon termination of this Agreement by Salix pursuant to Section 11.4(b):
(i) ▇▇▇▇▇▇ immediately shall cease all sales, marketing and distribution of the Generic Product and Salix promptly shall repurchase all saleable inventory of the Generic Product held by ▇▇▇▇▇▇ as of the termination date at the Purchase Price paid by ▇▇▇▇▇▇ for such Generic Product, and ▇▇▇▇▇▇ shall deliver such Generic Product to Salix at Salix’s expense.
(ii) All then outstanding Firm Orders automatically shall be cancelled.
(iii) For a period of twelve (12) months from the effective date of such termination, ▇▇▇▇▇▇ shall make monthly payments to Salix, not later than forty-five (45) days after the end of each month during such twelve (12) month period, each of which payments shall be equal to [*]% of the Average Monthly Profits. [*] Confidential treatment requested; certain information omitted and filed separately with the SEC.
Appears in 1 contract
Sources: License Agreement (Endo Pharmaceuticals Holdings Inc)