Common use of Commercialization Overruns Clause in Contracts

Commercialization Overruns. If the Allowable Expenses for commercialization activities exceed the amounts budgeted for all such activities in the applicable U.S. Commercialization Plan (and taking into account any amendments to such U.S. Commercialization Plan that may be approved during a Calendar Year) by more than *** percent (***) (calculated for all costs incurred over such Calendar Year for all budgeted activities), such excess Allowable Expenses (each, a “Commercialization Overrun”) shall be borne by the Party responsible for performing or causing to be performed such activities (for purposes of this Section 6.4.2, the “Responsible Party”) and shall be excluded from “Allowable Expenses” hereunder; provided, however, that (i) if any overspend for commercialization activities, although not a Commercialization Overrun, was not reasonable or *** Confidential material redacted and filed separately with the Commission. was within the control of the applicable Party but such Party did not use reasonable efforts to control such overspend, then such overspend shall be borne by the Responsible Party, and (ii) in the event and to the extent that any Commercialization Overrun was outside the reasonable control of, and not attributable to a failure to use Commercially Reasonable Efforts by, the Responsible Party, or did not result from the failure of such Responsible Party to adequately supervise a Third Party performing such activities, then provided that the Responsible Party has promptly notified the other Party of such Commercialization Overrun, such Commercialization Overrun shall be included in Allowable Expenses and shared by the Parties pursuant to Section 6.4.1.

Commercialization Overruns. If the Allowable Expenses incurred by a Party for commercialization Commercialization activities exceed the amounts budgeted for all such activities set forth in the applicable U.S. Joint Commercialization Plan (and taking into account any amendments to such U.S. Commercialization Plan that may be approved during a Calendar Year) Budget by more than [*** ] percent ([***]%) (calculated for all costs incurred over the [**] (as such Calendar Year may be adjusted on account of an Off-Cycle Amendment pursuant to Section 5.2.2(a)(ii) (Revisions)) for all budgeted activities), such excess Allowable Expenses (each, a “Commercialization Overrun”) shall be borne by the Party responsible for performing or causing to be performed such activities (for purposes of this Section 6.4.2, the “Responsible Party”) and shall be excluded from “Allowable Expenses” hereunder; providedprovided that, however, that (i) if any overspend for commercialization activities, although not a Commercialization Overrun, was not reasonable or *** Confidential material redacted and filed separately with the Commission. was within the control of the applicable Party but such Party did not use reasonable efforts to control such overspend, then such overspend shall be borne by the Responsible Party, and (ii) in the event and to the extent that any Commercialization Overrun was outside the reasonable control of, and not attributable to a failure to use Commercially Reasonable Efforts by, the Responsible PartyParty responsible for such Commercialization Overrun, or did not result from the failure of such Responsible Party to adequately supervise a Third Party performing such activities, then provided that the Responsible Party has promptly notified the other Party of such Commercialization Overrun, incurring such Commercialization Overrun shall be may petition the JSC to have such Commercialization Overrun included in the division of Allowable Expenses and shared by the Parties pursuant to Section 6.4.15.2.2(a)(iv) (Allocation) and, only if the Parties, acting through their JSC representatives, mutually agree (without reference to the tie-breaking provisions of Section 2.2.3 (Disagreement Resolution)) that such Commercialization Overrun should be included in the division of Allowable Expenses (without BII exercising its tie-breaking authority pursuant to Section 2.2.3 (Disagreement Resolution)), will such Commercialization Overrun be shared by the Parties pursuant to Section 5.2.2(a)(iv) (Allocation).

Commercialization Overruns. If Subject to Section 5.5.6(a), if the Allowable Expenses for commercialization Commercialization activities exceed the amounts budgeted for all such activities in the applicable U.S. Annual Commercialization Plan and Budget (and taking into account any amendments to such U.S. Annual Commercialization Plan and Budget that may be approved during a Calendar calendar Year) by more than *** percent ([***) **]† (calculated for all costs incurred over such Calendar calendar Year for all budgeted activities), such excess Allowable Expenses (each, each a “Commercialization Overrun”) shall be borne by the Party responsible for performing or causing to be performed such activities (for purposes of this Section 6.4.26.4.3, the “Responsible Party”) and shall be excluded from “Allowable Expenses” hereunder; provided, however, that (i) if any overspend for commercialization activities, although not a Commercialization Overrun, was not reasonable or *** Confidential material redacted and filed separately with the Commission. was within the control of the applicable Party but such Party did not use reasonable efforts to control such overspend, then such overspend shall be borne by the Responsible Party, and (ii) in the event and to the extent that any such Commercialization Overrun was outside the reasonable control of, and not attributable to a failure to use Commercially Reasonable Efforts commercially reasonable efforts by, the Responsible Party, or did not result from the failure of such Responsible Party to adequately supervise a Third Party performing such activities, then provided that the Responsible Party has promptly notified the other Party of such Commercialization Overrun, such Commercialization Overrun shall be included in Allowable Expenses and shared by the Parties pursuant to Section 6.4.16.4.1 or 6.4.2, as the case may be. If there is a dispute at the JCC level as to whether a Commercialization Overrun is attributable to a Responsible Party, or with respect to the appropriate methodology for the allocation of the applicable [*****] threshold or the Commercialization Overrun, as applicable, between the Parties if both Parties are Responsible Parties, as provided in (a) or (b) above, then, at the election of either Party, such dispute shall be resolved by an Expert as set forth in Section 16.2 following compliance with Sections 2.7.3(c) and 16.1.1.