Common use of Second Extension Period Clause in Contracts

Second Extension Period. At the end of the First Extension Period, Oscient may exercise its option for the Second Extension Period if all of the following conditions are satisfied: (a) Oscient executes at least [**] PDEs, of which at least [**] are Primary Details in each of Year 3 and Year 4; provided that, this milestone shall be deemed satisfied if any shortfall in the number of PDEs to be executed by Oscient is less than [**] percent ([**]%) in either of Year 3 or Year 4 and less than [**] percent ([**]%) as an average for both Years 3 and 4. (b) The Second Extension Product Incremental Market Share, as measured by IMS data in the manner described below, among the Oscient-Only Cohort is equal to or greater than [**]% of the Second Extension Product Incremental Market Share among the Auxilium-Only Cohort. The Second Extension Product Incremental Market Share shall equal (i) Average Testim Market Share for the Oscient-Only Cohort or the Auxilium-Only Cohort, as applicable, during the September 1 through December 31 of Year 4, less (ii) Average Testim Market Share for the Oscient-Only Cohort or the Auxilium-Only Cohort, as applicable, during January 1, 2007 through April 30, 2007. In the event Auxilium joins Oscient in calling on PCPs that had initially been members of the Oscient-Only Cohort, such PCPs shall continue to be members of the Oscient-Only Cohort for purposes of calculating the Second Extension Product Incremental Market Share. (c) Either (i) Year 4 PCP Gross Sales of the Product reach [**]% of the forecasted Year 4 PCP Gross Sales, or (ii) each of Year 4 PCP Gross Sales of the Product and Year 3 PCP Gross Sales of the Product reach [**]% of the forecasted Year 4 PCP Gross Sales and forecasted Year 3 PCP Gross Sales, respectively, with such forecasts to be established by the Marketing Committee by the end of October of the Year preceding the applicable Year (e.g., by October 31, 2007 for the Year 4 forecast). The milestones set forth in clauses (a), (b) or (c) above shall be adjusted downward in the event that Auxilium fails to meet its manufacturing, supply and Detailing obligations set forth in this Agreement or in the event of any condition described in Section 11.5. In addition, the milestones set forth in clauses (b) and (c) above shall be waived in the event that a Supply Interruption occurs and continues during Year 3 and/or Year 4 for a period of more than [**]. In addition, the Parties will determine in good faith an equitable adjustment of the annual PDEs for both Parties in the event of a Supply Interruption, which adjustment shall, in the case of Oscient, apply to the milestone in clause (a) above. In the event that there is a shortfall in the number of PDEs to PCPs required to be performed by Auxilium for Years 3 and 4 combined of greater than [**] percent ([**]%), the minimum sales milestone in clause (c) above shall be adjusted downward by the percentage by which such actual shortfall exceeds [**]%. Auxilium shall provide written notice to Oscient stating whether Oscient has satisfied the above conditions within ten (10) days of receipt of IMS Xponent data for Year 4, which shall be subject to Oscient’s verification. In the event that Oscient has not satisfied the above conditions, this Agreement shall terminate on April 30, 2009 if Auxilium has provided to Oscient notice of such termination within thirty (30) days of the date that such IMS Xponent data is made available to Auxilium. In the event that Oscient has satisfied the above conditions, the Co-Promotion Term shall automatically be extended for the Second Extension Period unless Oscient provides written notice to Auxilium of its intention to not extend the Co-Promotion Term, such notice to be given to Auxilium no later than March 20, 2009.

Second Extension Period. At the end of the First Extension Period, Oscient may exercise its option for the Second Extension Period if all of the following conditions are satisfied: (a) Oscient executes at least [**] *** PDEs, of which at least [**] *** are Primary Details in each of Year 3 and Year 4; provided that, this milestone shall be deemed satisfied if any shortfall in the number of PDEs to be executed by Oscient is less than [**] *** percent ([**]***%) in either of Year 3 or Year 4 and less than [**] *** percent ([**]***%) as an average for both Years 3 and 4. (b) The Second Extension Product Incremental Market Share, as measured by IMS data in the manner described below, among the Oscient-Only Cohort is equal to or greater than [**]***% of the Second Extension Product Incremental Market Share among the Auxilium-Only Cohort. The Second Extension Product Incremental Market Share shall equal (i) Average Testim Market Share for the Oscient-Only Cohort or the Auxilium-Only Cohort, as applicable, during the September 1 through December 31 of Year 4, less (ii) Average Testim Market Share for the Oscient-Only Cohort or the Auxilium-Only Cohort, as applicable, during January 1, 2007 through April 30, 2007. In the event Auxilium joins Oscient in calling on PCPs that had initially been members of the Oscient-Only Cohort, such PCPs shall continue to be members of the Oscient-Only Cohort for purposes of calculating the Second Extension Product Incremental Market Share. (c) Either (i) Year 4 PCP Gross Sales of the Product reach [**]***% of the forecasted Year 4 PCP Gross Sales, or (ii) each of Year 4 PCP Gross Sales of the Product and Year 3 PCP Gross Sales of the Product reach [**]***% * Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. of the forecasted Year 4 PCP Gross Sales and forecasted Year 3 PCP Gross Sales, respectively, with such forecasts to be established by the Marketing Committee by the end of October of the Year preceding the applicable Year (e.g., by October 31, 2007 for the Year 4 forecast). The milestones set forth in clauses (a), (b) or (c) above shall be adjusted downward in the event that Auxilium fails to meet its manufacturing, supply and Detailing obligations set forth in this Agreement or in the event of any condition described in Section 11.5. In addition, the milestones set forth in clauses (b) and (c) above shall be waived in the event that a Supply Interruption occurs and continues during Year 3 and/or Year 4 for a period of more than [**]***. In addition, the Parties will determine in good faith an equitable adjustment of the annual PDEs for both Parties in the event of a Supply Interruption, which adjustment shall, in the case of Oscient, apply to the milestone in clause (a) above. In the event that there is a shortfall in the number of PDEs to PCPs required to be performed by Auxilium for Years 3 and 4 combined of greater than [**] *** percent ([**]***%), the minimum sales milestone in clause (c) above shall be adjusted downward by the percentage by which such actual shortfall exceeds [**]***%. Auxilium shall provide written notice to Oscient stating whether Oscient has satisfied the above conditions within ten (10) days of receipt of IMS Xponent data for Year 4, which shall be subject to Oscient’s verification. In the event that Oscient has not satisfied the above conditions, this Agreement shall terminate on April 30, 2009 if Auxilium has provided to Oscient notice of such termination within thirty (30) days of the date that such IMS Xponent data is made available to Auxilium. In the event that Oscient has satisfied the above conditions, the Co-Promotion Term shall automatically be extended for the Second Extension Period unless Oscient provides written notice to Auxilium of its intention to not extend the Co-Promotion Term, such notice to be given to Auxilium no later than March 20, 2009.