Common use of Third Party Distributors Clause in Contracts

Third Party Distributors. (a) Attached hereto as Exhibit B is a list of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts to terminate its distribution agreements in Phase I Countries with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess of the Termination Allocation for such country, increased by the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid to the terminated distributors therein. With respect to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE to the applicable terminated distributor for the relevant items. In each case, GEN-PROBE and BIOMERIEUX shall cooperate with each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributors.

Third Party Distributors. (a) Attached hereto as Exhibit B is a list Licensee may, provided it obtains the prior written consent of all third party Licensor, sublicense the right to distribute products outside the United States to one or more approved distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof (each an "Existing DistributorsApproved Distributor"). GEN-PROBE agrees In furtherance of the foregoing, Licensee shall submit to use all reasonable efforts to terminate Licensor for its distribution agreements in Phase I Countries with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but approval (which shall not be deemed unreasonably withheld or delayed) (i) copies of any proposed distribution agreement not less than 10 days prior to require aggregate payments by GEN-PROBE the submission thereof to any such third parties in any country of total amounts in excess of the Termination Allocation for such countryproposed distributor, increased by the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid and (ii) prior to the terminated distributors therein. With respect to each execution of the Phase I Countriesany distribution agreement, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days copies of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (agreement in the case of the Benelux countries, the Benelux region form that Licensee and a proposed distributor may propose to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agreeexecute. (b) It Without limiting the generality of the foregoing, each approved distribution agreement shall include the following provisions, among others, to ensure that: (i) Licensor through Licensee retains control over the quality of any Products that may be manufactured thereunder, (ii) upon the termination of this Agreement for any reason, Licensor has the right to require the Approved Distributor to assign such agreement to Licensor with respect to Articles only, (iii) the term of each such agreement is understood deemed to be terminated automatically upon the termination of this Agreement if for any reason Licensor does not exercise its option to require Licensee to assign such agreement to Licensor as provided herein, (iv) each Approved Distributor is required to furnish separately to Licensee and agreed Licensor reports and statements of the type described in Section 9 hereof, and (v) Licensor and any representative of Licensor have the right to inspect any manufacturing facilities of each Approved Distributor to monitor compliance with the provisions of this Section. (c) Licensee hereby agrees that GEN-PROBE may seek in the event that Licensee learns that an Approved Distributor has breached the material terms thereof, Licensee shall immediately notify Licensor of such breach and all relevant facts relating thereto. If Licensor is so notified by Licensee, or if Licensor independently becomes aware of any such breach, Licensor shall have the right, in its reasonable discretion, to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes instruct Licensee to use reasonable efforts take any action to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on remedy such breach which Licensor reasonably deems appropriate under the terms of the agreement and conditions set forth in Exhibit C. To applicable law. Licensee's failure to comply with Licensor's reasonable instructions as provided above shall entitle Licensor to cause Licensee to terminate the extent GEN-PROBE is able to effect such repurchases in accordance distribution agreement with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE to the applicable terminated distributor for the relevant items. In each case, GEN-PROBE and BIOMERIEUX shall cooperate with each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributorsApproved Distributor.

Third Party Distributors. In the event that Genzyme fails to use commercially reasonable and diligent efforts to establish a Collaboration Product in a country identified in the Commercialization Plan for such Collaboration Product, or to fulfill market demand or meet the marketing and distribution goals for such country as set forth in the Commercialization Plan for such Collaboration Product, and such failure to perform is not cured within ninety (90) days of written notice thereof from GTC, then (a) Attached hereto as Exhibit B GTC may elect to cause Genzyme's rights under Section 6.2 hereof to market and sell such Collaboration Product in such country to terminate and (b) the Steering Committee shall promptly select a Third Party to be engaged by ATIII LLC to market and sell such Collaboration Product in such country; PROVIDED, HOWEVER, that in the event that any such country is a list Major Market Country, any election made by GTC pursuant to clause (a) hereof shall be in lieu of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts any right to terminate its distribution agreements in Phase I Countries this Agreement that may arise under Section 13.2.1 (c) hereof with each respect to such failure to perform; PROVIDED FURTHER that any such termination of said distributors as promptly as possible, it being agreed that such efforts Genzyme's rights under Section 6.2 hereof shall be an ongoing requirement during on a reasonable period until success is achieved country-by-country basis and Genzyme's rights and obligations under Section 6.2 hereof with respect to other Collaboration Products in each ***Certain information on this page has been omitted such country and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess rest of the Termination Allocation Territory shall remain in full force and effect. Any such Third Party distributor selected by the Steering Committee pursuant to clause (b) above shall be required to execute a written agreement with ATIII LLC pursuant to which such Third Party shall agree to (i) use commercially reasonable and diligent efforts to comply with the strategy, policies and procedures set forth in each Commercialization Plan for such country, increased by including without limitation the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as responsibilities described in Section 6.5 above (with references therein to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid Genzyme being deemed to refer to such Third Party and references therein to the terminated distributors therein. With respect Territory being deemed to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE refer to the applicable terminated distributor country for the relevant items. In each case, GEN-PROBE purposes of this clause (i)) and BIOMERIEUX shall (ii) reasonably cooperate with Genzyme in the preparation of each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to Commercialization Plan or update thereto for such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributorsCollaboration Product.

Third Party Distributors. In the event that Genzyme fails to use commercially reasonable and diligent efforts to establish a Collaboration Product in a country identified in the Commercialization Plan for such Collaboration Product, or to fulfill market demand or meet the marketing and distribution goals for such country as set forth in the Commercialization Plan for such Collaboration Product, and such failure to perform is not cured within ninety (90) days of written notice thereof from GTC, then (a) Attached hereto as Exhibit B GTC may elect to cause Genzyme's rights under Section 6.2 hereof to market and sell such Collaboration Product in such country to terminate and (b) the Steering Committee shall promptly select a Third Party to be engaged by ATIII LLC to market and sell such Collaboration Product in such country; provided, however, that in the event that any such country is a list Major Market Country, any election made by GTC pursuant to clause (a) hereof shall be in lieu of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts any right to terminate its distribution agreements in Phase I Countries this Agreement that may arise under Section 13.2.1 (c) hereof with each respect to such failure to perform; provided further that any such termination of said distributors as promptly as possible, it being agreed that such efforts Genzyme's rights under Section 6.2 hereof shall be an ongoing requirement during on a reasonable period until success is achieved country-by-country basis and Genzyme's rights and obligations under Section 6.2 hereof with respect to other Collaboration Products in each ***Certain information on this page has been omitted such country and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess rest of the Termination Allocation Territory shall remain in full force and effect. Any such Third Party distributor selected by the Steering Committee pursuant to clause (b) above shall be required to execute a written agreement with ATIII LLC pursuant to which such Third Party shall agree to (i) use commercially reasonable and diligent efforts to comply with the strategy, policies and procedures set forth in each Commercialization Plan for such country, increased by including without limitation the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as responsibilities described in Section 6.5 above (with references therein to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid Genzyme being deemed to refer to such Third Party and references therein to the terminated distributors therein. With respect Territory being deemed to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE refer to the applicable terminated distributor country for the relevant items. In each case, GEN-PROBE purposes of this clause (i)) and BIOMERIEUX shall (ii) reasonably cooperate with Genzyme in the preparation of each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to Commercialization Plan or update thereto for such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributorsCollaboration Product.

Third Party Distributors. Gilead shall have the right, with respect to all countries in the Territory other than the ▇▇▇▇▇▇▇ Countries, to engage a Third Party Distributor to Distribute Territory Combination Products. In the event Gilead decides to engage a Third Party Distributor with respect to any Territory Combination Product with respect to any country in Region A (other than a Gilead Take-Over Country) for which Gilead has not previously engaged a Third Party distributor for any of its products and Gilead desires to engage a Third Party Distributor for such country which Third Party Distributor does not already serve as a distributor for any Gilead Products in any country, (a) Attached hereto as Exhibit B is Gilead shall so notify ▇▇▇▇▇▇▇ in writing (the “ROFN Trigger Notice”) and (b) if ▇▇▇▇▇▇▇ notifies Gilead, within [*] after receiving a list of all third party distributors currently distributing GEN-PROBE's Products within ROFN Trigger Notice (the Phase I Countries“ROFN Period”), the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees that it desires to use all reasonable efforts to terminate its distribution agreements in Phase I Countries negotiate with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested Gilead with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties becoming Gilead’s exclusive distributor of one or both Territory Combination Products in any country of total amounts in excess of the Termination Allocation for such country, increased the Parties shall negotiate in good faith for [*] (or such longer period as agreed by the excessParties) (the “Negotiation Period”) an amendment to this Agreement (and, if anyapplicable, of the amount, if any, by which the Termination Allocation for Phase I Countries as ▇▇▇▇▇▇▇ Distributor Agreement) pursuant to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid such country would become a ▇▇▇▇▇▇▇ Country; provided, however, that neither Party will be obligated to the terminated distributors thereinenter into such an amendment. With respect to each If, following receipt of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements a ROFN Trigger Notice with respect to a country, (i) ▇▇▇▇▇▇▇ notifies Gilead, prior to the expiration of the ROFN Period, that it does not desire to negotiate to become Gilead’s exclusive distributor in such country, (ii) the ROFN Period expires without Gilead’s receipt of a notification from ▇▇▇▇▇▇▇ that it desires to negotiate to become Gilead’s exclusive distributor for the Territory Combination Product in such country or (in iii) ▇▇▇▇▇▇▇ notifies Gilead, prior to the case expiration of the Benelux countriesROFN Period, the Benelux region that it desires to be considered as a unit), subject only negotiate to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE to the applicable terminated become Gilead’s exclusive distributor for the relevant items. In each caseTerritory Combination Product in such country, GEN-PROBE and BIOMERIEUX but the Negotiation Period expires before the Parties execute an amendment to this Agreement (and, if applicable, the ▇▇▇▇▇▇▇ Distributor Agreement) pursuant to which such country would become a ▇▇▇▇▇▇▇ Country, then Gilead shall cooperate with each other thereafter be free to engage a Third Party Distributor to Distribute Territory Combination Products in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributorsGilead Country.

Third Party Distributors. (a) Attached hereto as Exhibit B is a list of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts to terminate its distribution agreements in Phase I Countries with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. -2- <PAGE> such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess of the Termination Allocation for such country, increased by the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid to the terminated distributors therein. With respect to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE to the applicable terminated distributor for the relevant items. In each case, GEN-PROBE and BIOMERIEUX shall cooperate with each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributors.