Common use of Obligation to Develop Clause in Contracts

Obligation to Develop. Notwithstanding any provision herein, including the provisions of this Section 2.7.2, Buyer is not obligated to continue development or commercialization of Alaway™ Plus in the event that Buyer makes a commercially reasonable, good faith determination to discontinue such development or commercialization. Notwithstanding the foregoing, if Buyer has not filed an NDA for Alaway™ Plus on or prior to the third (3rd) anniversary of the Closing Date (the “First Milestone Date”), then within thirty (30) days of the First Milestone Date Buyer, at its sole option, shall either (a) pay Seller an amount equal to the difference between Four Million Dollars ($4,000,000) and the Offset Amount (the “First Milestone Payment”) or (b) notify Seller (the “First Sale Notice”) that it has the right, for a period of ninety (90) days after receipt of the First Sale Notice (the “First Option Period”), to purchase from Buyer the right to develop, commercialize and market Alaway™ Plus in exchange for (i) assumption by Seller of liabilities and obligations that are consistent with the types of liabilities and obligations included in the Assumed Liabilities which Seller and Buyer shall agree upon in good faith and (ii) a cash payment of immediately available funds in an amount equal to the out-of-pocket costs plus the allocated portion of internal costs incurred by Buyer or its Affiliates in furtherance of the development and commercialization of Alaway™ Plus (the “Alaway™ Plus Purchase Option”) from the date hereof to the date of the First Sale Notice; provided, however, such purchase shall not include any rights in and to the trademark Alaway or the goodwill related thereto and neither Seller nor any Seller Affiliate shall take any action that conflicts with or impairs Buyer’s right, title, and ownership in and to the Alaway trademark and the goodwill related thereto, including using, registering, seeking to register or contesting the validity of Buyer’s Alaway trademark in any jurisdiction and shall not itself use any name, ▇▇▇▇ or designation that is confusingly similar to Buyer’s Alaway trademark (the “Alaway™ Plus Proviso”). If Buyer makes the First Milestone Payment and Buyer has not filed an NDA for Alaway™ Plus on or prior to the fifth (5th) anniversary of the Closing Date (the “Second Milestone Date”), then within thirty (30) days of the Second Milestone Date Buyer, at its sole option, shall either (x) pay Seller an amount equal to the difference between Four Million Dollars ($4,000,000) and any remaining Offset Amount or (y) notify Seller (the “Second Sale Notice”) that it has the right, for a period of ninety (90) days after receipt of the Second Sale Notice (the “Second Option Period”), to exercise the Alaway™ Plus Purchase Option from the date hereof to the date of the Second Sale Notice, subject to the Alaway™ Plus Proviso. During any First Option Period and Second Option Period, Buyer shall provide Seller reasonable access to all of the facilities, books and records of Seller related to Alaway™ Plus, and Buyer shall use commercially reasonable efforts to make Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers available to Seller as Seller shall from time to time reasonably request. Notwithstanding the generality of the foregoing, Seller agrees that its communications with Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers shall be coordinated with Buyer and conducted in a manner so as to interfere as little as possible with Buyer’s day-to-day business operations. If Buyer provides the First Sale Notice or the Second Sale Notice and Seller does not consummate the purchase of the right to develop, commercialize and market Alaway™ Plus during the First Option Period or the Second Option Period, as applicable, then Buyer shall have no further obligations to Seller under this Section 2.7.2; provided, however, that Buyer shall Execution Version still be obligated to pay the Post-Closing Consideration to the extent it is required to do so pursuant to and in accordance with Section 2.7.1.

Obligation to Develop. Notwithstanding any provision herein, including the provisions of this Section 2.7.2, Buyer is not obligated to continue development or commercialization of Alaway™ Plus in the event that Buyer makes a commercially reasonable, good faith determination to discontinue such development or commercialization. Notwithstanding the foregoing, if Buyer has not filed an NDA for Alaway™ Plus on or prior to the third (3rd) anniversary of the Closing Date (the “First Milestone Date”), then within thirty (30) days of the First Milestone Date Buyer, at its sole option, shall either (a) pay Seller an amount equal to the difference between Four Million Dollars ($4,000,000) and the Offset Amount (the “First Milestone Payment”) or (b) notify Seller (the “First Sale Notice”) that it has the right, for a period of ninety (90) days after receipt of the First Sale Notice (the “First Option Period”), to purchase from Buyer the right to develop, commercialize and market Alaway™ Plus in exchange for (i) assumption by Seller of liabilities and obligations that are consistent with the types of liabilities and obligations included in the Assumed Liabilities which Seller and Buyer shall agree upon in good faith and (ii) a cash payment of immediately available funds in an amount equal to the out-of-pocket costs plus the allocated portion of internal costs incurred by Buyer or its Affiliates in furtherance of the development and commercialization of Alaway™ Plus (the “Alaway™ Plus Purchase Option”) from the date hereof to the date of the First Sale Notice; provided, however, such purchase shall not include any rights in and to the trademark Alaway or the goodwill related thereto and neither Seller nor any Seller Affiliate shall take any action that conflicts with or impairs Buyer’s right, title, and ownership in and to the Alaway trademark and the goodwill related thereto, including using, registering, seeking to register or contesting the validity of Buyer’s Alaway trademark in any jurisdiction and shall not itself use any name, ▇▇▇▇ or designation that is confusingly similar to Buyer’s Alaway trademark (the “Alaway™ Plus Proviso”). If Buyer makes the First Milestone Payment and Buyer has not filed an NDA for Alaway™ Plus on or prior to the fifth (5th) anniversary of the Closing Date (the “Second Milestone Date”), then within thirty (30) days of the Second Milestone Date Buyer, at its sole option, shall either (x) pay Seller an amount equal to the difference between Four Million Dollars ($4,000,000) and any remaining Offset Amount or (y) notify Seller (the “Second Sale Notice”) that it has the right, for a period of ninety (90) days after receipt of the Second Sale Notice (the “Second Option Period”), to exercise the Alaway™ Plus Purchase Option from the date hereof to the date of the Second Sale Notice, subject to the Alaway™ Plus Proviso. During any First Option Period and Second Option Period, Buyer shall provide Seller reasonable access to all of the facilities, books and records of Seller related to Alaway™ Plus, and Buyer shall use commercially reasonable efforts to make Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers available to Seller as Seller shall from time to time reasonably request. Notwithstanding the generality of the foregoing, Seller agrees that its communications with Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers shall be coordinated with Buyer and conducted in a manner so as to interfere as little as possible with Buyer’s day-to-day business operations. If Buyer provides the First Sale Notice or the Second Sale Notice and Seller does not consummate the purchase of the right to develop, commercialize and market Alaway™ Plus during the First Option Period or the Second Option Period, as applicable, then Buyer shall have no further obligations to Seller under this Section 2.7.2; provided, however, that Buyer shall Execution Version still be obligated to pay the Post-Closing Consideration to the extent it is required to do so pursuant to and in accordance with Section 2.7.1.Version

Obligation to Develop. (a) Notwithstanding any provision herein, including without limitation the provisions of this Section 2.7.22.7, Buyer is not obligated to continue development of the Product or commercialization of Alaway™ Plus any of the Purchased Assets in the event that Buyer makes a commercially reasonable, good faith determination to discontinue such development or commercialization. Notwithstanding . (b) Upon the foregoingoccurrence of any event constituting Abandonment, if as hereafter defined, Buyer has not filed an NDA for Alaway™ Plus on or prior to the third (3rd) anniversary shall promptly notify Seller in writing of the Closing Date such Abandonment (the “First Milestone DateAbandonment Notice”), then within thirty (30) days of the First Milestone Date Buyerand Seller may, at its sole option, shall either (a) pay Seller an amount equal by written notice to the difference between Four Million Dollars ($4,000,000) and the Offset Amount Buyer (the “First Milestone Payment”) or (b) notify Seller (the “First Sale Abandonment Offer Notice”) that it has the right), and for a period of ninety (90) days after [***] following Seller’s receipt of the First Sale Notice (the “First Option Period”)such Abandonment Notice, elect to [***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. offer to purchase from Buyer the right rights to license, develop, commercialize, market and exploit such Products in the Region or Regions where such Abandonment has occurred (the “Abandoned Development Rights”). Upon receipt of an Abandonment Offer Notice pursuant to this Section 2.7.10(b), Buyer shall in good faith negotiate the terms and conditions of sale of the Abandoned Development Rights to Seller, provided however, that if Buyer and Seller do not consummate the sale and purchase of the Abandoned Development Rights within [***] following Seller’s receipt of the Abandonment Notice, Buyer shall have no further obligation to negotiate with Seller with respect to the Abandoned Development Rights. (c) Buyer shall be deemed to have abandoned its rights to develop, commercialize and market Alaway™ Plus the Products in exchange for a Region, and Seller may elect to exercise its rights pursuant to Section 2.7.10(b) if any of the following events occur (“Abandonment”): (i) assumption by Seller for a continuous period of liabilities and obligations that are consistent with the types of liabilities and obligations included in the Assumed Liabilities which Seller and Buyer shall agree upon in good faith and twelve (ii12) a cash payment of immediately available funds in an amount equal to the out-of-pocket costs plus the allocated portion of internal costs incurred by months, Buyer or its Affiliates or its or their Sublicensees fails to incur in furtherance good faith development and/or research and development expense in connection with the development, commercialization or marketing of the development and commercialization Products in all countries within such Region, or (ii) Buyer notifies Seller in writing of Alaway™ Plus its abandonment of the Product in all countries within such Region. (d) In the event that Buyer desires to sell all or substantially all of the Purchased Assets, whether or not there has been any Abandonment, Buyer shall notify Seller thereof in writing (the “Alaway™ Plus Purchase OptionSale Notice”) from identifying the date hereof Purchased Assets that Buyer desires to the date of the First Sale Notice; provided, however, such purchase shall not include any rights in and to the trademark Alaway or the goodwill related thereto and neither Seller nor any Seller Affiliate shall take any action that conflicts with or impairs Buyer’s right, titlesell, and ownership in and to the Alaway trademark and the goodwill related thereto, including using, registering, seeking to register or contesting the validity of Buyer’s Alaway trademark in any jurisdiction and shall not itself use any name, ▇▇▇▇ or designation that is confusingly similar to Buyer’s Alaway trademark (the “Alaway™ Plus Proviso”). If Buyer makes the First Milestone Payment and Buyer has not filed an NDA for Alaway™ Plus on or prior to the fifth (5th) anniversary of the Closing Date (the “Second Milestone Date”), then within thirty (30) days of the Second Milestone Date BuyerSeller may, at its sole option, shall either (x) pay Seller an amount equal by written notice to the difference between Four Million Dollars ($4,000,000) and any remaining Offset Amount or (y) notify Seller Buyer (the “Second Sale Purchase Offer Notice”) that it has the right), and for a period [***] following Seller’s receipt of ninety (90) days after such Sale Notice, elect to offer to purchase from Buyer the Purchased Assets described in the Sale Notice. Upon receipt of a Purchase Offer Notice pursuant to this Section 2.7.10(d), Buyer shall in good faith negotiate exclusively the terms and conditions of sale of the Purchased Assets to Seller and shall not negotiate the sale of all or substantially all of the Purchased Assets to any Person other than Seller, provided however, that if Buyer and Seller do not consummate the sale and purchase of all or substantially all the Purchased Assets within [***] following Seller’s receipt of the Second Sale Notice (the “Second Option Period”), to exercise the Alaway™ Plus Purchase Option from the date hereof to the date of the Second Sale Notice, subject to the Alaway™ Plus Proviso. During any First Option Period and Second Option Period, Buyer shall provide Seller reasonable access to all of the facilities, books and records of Seller related to Alaway™ Plus, and Buyer shall use commercially reasonable efforts to make Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers available to Seller as Seller shall from time to time reasonably request. Notwithstanding the generality of the foregoing, Seller agrees that its communications with Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract manufacturers shall be coordinated with Buyer and conducted in a manner so as to interfere as little as possible with Buyer’s day-to-day business operations. If Buyer provides the First Sale Notice or the Second Sale Notice and Seller does not consummate the purchase of the right to develop, commercialize and market Alaway™ Plus during the First Option Period or the Second Option Period, as applicable, then Buyer shall have no further obligations obligation to negotiate with Seller under this Section 2.7.2; providedwith respect to the sale by Buyer of the Purchased Assets, however, that and Buyer shall Execution Version still be obligated free to pay sell all or a portion of the Post-Closing Consideration Purchased Assets to the extent any Person or Persons on any terms and conditions it is required to do so pursuant to and in accordance with Section 2.7.1desires. [***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.