Common use of Minimum Purchase Obligation Clause in Contracts

Minimum Purchase Obligation. The Parties agree that, unless otherwise agreed to by the Parties in writing, Licensee shall purchase from LMI at least **** of Sestamibi Product in the **** of each **** and ****during the term of the Agreement (as amended hereby) (the “Minimum Quantity”) at a price of $****, provided that, pursuant to the terms of the Agreement, Licensee or its Affiliates in **** shall be permitted to order reasonable quantities of Sestamibi Product from LMI’s Affiliates in **** for the radiopharmacy locations controlled by Licensee or its Affiliates in **** on a **** basis and such quantities of Sestamibi Product will be included in the calculation of the Minimum Quantity for such ****. Licensee shall provide LMI with at least **** (****) days written notice prior to any change to such standing orders for Sestamibi Product placed by Licensee or its Affiliates for ****. Compliance with such Minimum Quantity will be determined as of **** and at the end of each **** thereafter (each a “Compliance Period”). In any Compliance Period in which Licensee does not purchase at least the applicable Minimum Quantity of Sestamibi Product from LMI, Licensee will promptly pay to LMI any remaining portion of the applicable Minimum Quantity not invoiced prior to the end of such Compliance Period (each a “Shortfall Payment”). In addition, within **** (****) weeks prior to the end of any Compliance Period, Licensee shall (i) make a good faith estimate of additional amounts of Sestamibi Product necessary for Licensee to purchase to be in compliance with the Minimum Quantity for such Compliance Period, and (ii) use commercially reasonable efforts to place purchase orders for such additional amounts. For purposes of clarity, the Parties acknowledge and agree that Licensee’s purchase obligations set forth in Amendment No. 1 (including, but not limited to, the purchase obligations under Section 2.3) shall remain in effect and unmodified by this Amendment, and any such purchases made by Licensee pursuant to Amendment No. 1 shall not count towards, and not be included in the calculation of, any Minimum Quantity hereunder. The Parties further acknowledge and agree that any Shortfall Payment made by Licensee pursuant to this Amendment shall not count towards, and not be included in the calculation of, any Minimum Quantity for the next succeeding Compliance Period hereunder, and the requirements set forth in Section 7 of Amendment No. 1 shall not apply to the purchase of Sestamibi Product pursuant to this Amendment. With the exception of Sestamibi Product purchased for **** (which shall not be subject to the Product Dating requirements set forth herein), without limitation to any other provision in the Agreement, LMI shall use commercially reasonable efforts to deliver Sestamibi Products to Licensee under this Amendment with useful life prior to product expiration (“Product Dating”) of at least **** percent (****%) of the maximum Product Dating for such lots of Sestamibi Product based on the applicable regulatory approvals. In addition, with respect to the Minimum Quantity of Sestamibi Product purchased for ****, without limitation to any other rights or remedies available to Licensee in connection with the foregoing provision, Licensee may at its option reject any Sestamibi Product delivered to Licensee with less than the following amounts of Product Dating: (i) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI as of the Amendment Date; and (ii) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI after the Amendment Date. Upon any such rejection, if LMI fails to replace such rejected Sestamibi Product within **** (****) days following the date of the rejection, such rejected Sestamibi Product shall be counted towards Licensee’s satisfaction of the Minimum Quantity obligation hereunder.

Minimum Purchase Obligation. The Parties agree that, unless Unless otherwise agreed to by in writing between the Parties in writingParties, Licensee shall purchase from LMI at least **** of Sestamibi Akebia shall, upon regulatory approval to market a drug product containing the Product in the United States or Europe, by the Food and Drug Administration or the European Medicines Agency respectively (“US/EU Approval”) and each year during the Term (for this purpose, the first year starting on the date the referred US/EU Approval is granted and ending on the following 31st of December and the last year ending on the date this Agreement expires or is terminated), purchase from EQ, per the terms of this Agreement, the greater of: (a) at least [**** ]% of each **** Akebia’s, and ****during the term of the Agreement (as amended hereby) its Affiliates and licensee’s, global needs for Product for commercial purposes (the “Minimum QuantityGlobal Demand”); or (b) at a price of $least [****] of Product in a calendar year. The foregoing shall be considered Akebia’s minimum purchase obligation under this agreement (“Minimum Purchase Obligation”). Notwithstanding the foregoing, it is understood between the Parties that, except for the last year of the Term, failure by Akebia to achieve the Minimum Purchase Obligation for a year shall not be considered a material breach of this Agreement, provided that: (i) Akebia has purchased during such year from EQ at least [**]% of its global needs of Product, pursuant (ii) the shortfall to achieve the Minimum Purchase Obligation is added to the terms Minimum Purchase Obligation applicable for the following year; and (iii) such Minimum Purchase Obligation applicable for the following year (with the addition of the Agreement, Licensee or its Affiliates in **** shall be permitted shortfall to order reasonable quantities of Sestamibi Product from LMI’s Affiliates in **** for achieve the radiopharmacy locations controlled by Licensee or its Affiliates in **** on a **** basis and such quantities of Sestamibi Product will be included in the calculation Minimum Purchase Obligation of the Minimum Quantity for such ****. Licensee shall provide LMI with at least **** (****prior year) days written notice prior to any change to such standing orders for Sestamibi Product placed is achieved by Licensee or its Affiliates for ****. Compliance with such Minimum Quantity will be determined as of **** and Akebia at the end of each such following year. The foregoing is further provided that if the Minimum Purchase Obligation applicable for the last year in which this Agreement is in effect is not achieved by Akebia, Akebia shall pay EQ the Supply Price for [**** thereafter (each a “Compliance Period”). In any Compliance Period in which Licensee does not ]% of the difference between Akebia’s actual purchase at least amount for the applicable Minimum Quantity of Sestamibi Product from LMI, Licensee will promptly pay to LMI any remaining portion of the applicable Minimum Quantity not invoiced prior to the end of such Compliance Period (each a “Shortfall Payment”). In addition, within **** (****) weeks prior to the end of any Compliance Period, Licensee shall (i) make a good faith estimate of additional amounts of Sestamibi Product necessary for Licensee to purchase to be in compliance with the Minimum Quantity for such Compliance Period, and (ii) use commercially reasonable efforts to place purchase orders for such additional amounts. For purposes of clarity, the Parties acknowledge and agree that Licensee’s purchase obligations set forth in Amendment No. 1 (including, but not limited to, the purchase obligations under Section 2.3) shall remain in effect and unmodified by this Amendment, and any such purchases made by Licensee pursuant to Amendment No. 1 shall not count towards, and not be included in the calculation of, any Minimum Quantity hereunder. The Parties further acknowledge and agree that any Shortfall Payment made by Licensee pursuant to this Amendment shall not count towards, and not be included in the calculation of, any Minimum Quantity for the next succeeding Compliance Period hereunderyear, and the requirements set forth in Section 7 of Amendment No. 1 shall not apply to the purchase of Sestamibi Product pursuant to this Amendment. With the exception of Sestamibi Product purchased Minimum Purchase Obligation for **** (which shall not be subject to the Product Dating requirements set forth herein), without limitation to any other provision in the Agreement, LMI shall use commercially reasonable efforts to deliver Sestamibi Products to Licensee under this Amendment with useful life prior to product expiration (“Product Dating”) of at least **** percent (****%) of the maximum Product Dating for such lots of Sestamibi Product based on the applicable regulatory approvals. In addition, with respect to the Minimum Quantity of Sestamibi Product purchased for ****, without limitation to any other rights or remedies available to Licensee in connection with the foregoing provision, Licensee may at its option reject any Sestamibi Product delivered to Licensee with less than the following amounts of Product Dating: (i) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI as of the Amendment Date; and (ii) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI after the Amendment Date. Upon any such rejection, if LMI fails to replace such rejected Sestamibi Product within **** (****) days following the date of the rejection, such rejected Sestamibi Product shall be counted towards Licensee’s satisfaction of the Minimum Quantity obligation hereunderthat year.

Minimum Purchase Obligation. The Parties agree that(a) Apellis agrees to purchase SUNBRIGHT [**] from NOF under the estimated annual forecasts in Exhibit D, unless otherwise agreed to by the Parties extent set forth in writingthe Firm Commitment portion of the Rolling Forecasts and subject to the Minimum Purchase Obligations set forth in Exhibit E. Except as expressly set forth in Exhibit E, Licensee Apellis shall purchase order from LMI NOF, and NOF shall supply, at least the minimum amount of the SUNBRIGHT [**** ] for delivery as provided in Exhibit E attached hereto and incorporated herein, or of Sestamibi Product in the its proportionate amount of such SUNBRIGHT [**** ] in case of each less than [**** and ]. If Apellis fails to purchase the quantity of SUNBRIGHT [**] which satisfies the Minimum Purchase Obligation for a particular time period, Apellis shall pay NOF the amount equal to [**during the term ]% of the Agreement (as amended hereby) (the “Minimum Quantity”) at a price of $****, provided that, pursuant to the terms of the Agreement, Licensee or its Affiliates in **** shall be permitted to order reasonable quantities of Sestamibi Product from LMI’s Affiliates in **** for the radiopharmacy locations controlled by Licensee or its Affiliates in **** on a **** basis and such quantities of Sestamibi Product will be included in the calculation remaining quantity of the Minimum Quantity Purchase Obligation for such time period without affecting the obligations of Apellis to purchase and pay for 100% of the Firm Orders previously issued. Beginning [**], the Parties shall discuss in good faith quantities of Minimum Purchase Obligation for calendar years [**]. (b) Notwithstanding the foregoing, Apellis may terminate the Minimum Purchase Obligation for the remaining term of this Agreement by providing notice to NOF on or before October 1 of the preceding year, subject to the buy-out payment obligations provided in this Section. Licensee In the case Apellis terminates the Minimum Purchase Obligation for the remaining Term of this Agreement (“Buy-Out Option ”), then, as Apellis’s exclusive liability and NOF’s sole remedy, Apellis shall provide LMI with at least pay NOF an amount equal to the Buy-Out Calculation for [**** ] percent ([**]%) of the aggregate of the remaining Minimum Purchase Obligation for remaining time periods thereafter of the Term of this Agreement; provided, however, if this Agreement is terminated by NOF for convenience or by Apellis for NOF’s breach, Apellis shall have no obligation to pay any further Minimum Purchase Obligation and the Buy-Out Calculation shall be of no force or effect. (c) The amount of the payment required to be made under Section 4.9(a) and Section 4.9(b) for Buy-Out Option shall be calculated based on the applicable per-gram Supply Price set forth in Exhibit B (“Buy-Out Calculation”). Invoices for the appropriate payment will be issued by NOF within [**) days written notice prior to any change to such standing orders for Sestamibi Product placed by Licensee or its Affiliates for ****. Compliance with such Minimum Quantity will be determined as of **** and at ] from the end of each **** thereafter (each a “Compliance Period”). In any Compliance Period in which Licensee does not purchase at least the applicable Minimum Quantity time period or the effective date of Sestamibi Product from LMI, Licensee will promptly pay to LMI any remaining portion NOF’s receipt of the applicable Minimum Quantity not invoiced prior buy-out notice, as the case may be, and shall be payable within [**] of the date of receipt of the invoice from NOF. (d) Nothing herein shall be construed as limiting the amount of SUNBRIGHT [**] that Apellis may purchase from NOF, nor the amount of SUNBRIGHT [**] that NOF may supply to Apellis, in any given calendar year during the Term of this Agreement, subject only to the end of such Compliance Period (each a “Shortfall Payment”). In additionapplicable provisions relating to Rolling Forecasts, within **** (****) weeks prior to the end of any Compliance Period, Licensee shall (i) make a good faith estimate of additional amounts of Sestamibi Product necessary for Licensee to purchase to be in compliance with the Minimum Quantity for such Compliance Period, and (ii) use commercially reasonable efforts to place purchase orders for such additional amounts. For purposes of clarity, the Parties acknowledge and agree that Licensee’s purchase obligations set forth in Amendment No. 1 (including, but not limited to, the purchase obligations under Section 2.3) shall remain in effect and unmodified by this Amendment, and any such purchases made by Licensee pursuant to Amendment No. 1 shall not count towards, and not be included in the calculation of, any Minimum Quantity hereunder. The Parties further acknowledge and agree that any Shortfall Payment made by Licensee pursuant to this Amendment shall not count towards, and not be included in the calculation of, any Minimum Quantity for the next succeeding Compliance Period hereunder, and the requirements as set forth in Section 7 4.7. (e) For purposes of Amendment No. 1 shall not apply to the purchase of Sestamibi Product clarification, Apellis may exercise Buy-Out Option pursuant to this Amendment. With the exception Section 4.9 without terminating this Agreement, and such exercise of Sestamibi Product purchased for **** (which Buy-Out Option shall not be subject construed to the Product Dating requirements set forth herein), be a termination of this Agreement but instead this Agreement shall remain as an agreement without limitation to any other provision in the Agreement, LMI shall use commercially reasonable efforts to deliver Sestamibi Products to Licensee under this Amendment with useful life prior to product expiration (“Product Dating”) of at least **** percent (****%) of the maximum Product Dating for such lots of Sestamibi Product based on the applicable regulatory approvals. In addition, with respect to the Minimum Quantity of Sestamibi Product purchased Purchase Obligation for ****, without limitation to any other rights or remedies available to Licensee in connection with the foregoing provision, Licensee may at its option reject any Sestamibi Product delivered to Licensee with less than the following amounts of Product Dating: (i) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI as of the Amendment Date; and (ii) (****) **** of Product Dating if such Sestamibi Product was produced by one of LMI’s third party manufacturers of Sestamibi Product approved by the FDA to supply commercial quantities of Sestamibi Product to LMI after the Amendment Date. Upon any such rejection, if LMI fails to replace such rejected Sestamibi Product within **** (****) days following the date of the rejection, such rejected Sestamibi Product shall be counted towards Licensee’s satisfaction of the Minimum Quantity obligation hereunderrelevant time period.