Common use of Competing Products Clause in Contracts

Competing Products. (a) Seller agrees that during the period commencing on the Closing Date and ending on the earlier of (1) the seventh anniversary of the Closing Date or (2) if Seller has not received any Product Royalties for any consecutive two-year period during the Royalty Period, the last day of such two-year period (the “Restricted Period”), Seller shall not directly or indirectly, (i) engage in or assist anyone other than Purchaser in engaging in the Restricted Business; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly cause, induce or encourage any actual or reasonably prospective client, customer, supplier or licensor of Purchaser with respect to the Intended Use of the Trapper Surgical Products (including any existing or former client or customer of Seller with respect to the Intended Use of the Trapper Surgical Products), or any other Person who has a business relationship with the Purchaser with respect to the Intended Use of the Trapper Surgical Products, to terminate or adversely modify any such actual or prospective relationship. Notwithstanding the foregoing, (w) Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (x) Purchaser acknowledges that ERGO Systems are currently manufactured, distributed, sold, marketed, developed and/or otherwise promoted by Seller as multi-purpose camera imaging systems, including for use in, but not marketed solely for use in, the Restricted Business, and agrees that Seller shall have the right to continue to manufacture, distribute, sell, market, develop and/or otherwise promote its ERGO Systems for use in the Restricted Business consistent in all material respects with its practices as of the Closing, except that Seller expressly agrees that it shall not modify the ERGO Systems in any way for the purpose of enhancing their use in the Peri-Operative Field, change its marketing strategy as in effect at the Closing to promote the ERGO System for use in the Peri-Operative Field to a greater extent than the manner in which such use is promoted as of the Closing (e.g., by moving the use of the ERGO System in the Peri-Operative Field to a more prominent position in any current list of uses for the ERGO System, emphasizing the use of the ERGO System in the Peri-Operative Field by formatting or highlighting references to such use in a manner that differs from the formatting or highlighting used in references to any other uses of the ERGO System, or any other change having a similar effect), or conduct clinical trials of the ERGO System in the Peri-Operative Field, and (y) nothing contained herein shall, or is intended to, impact, impair or otherwise interfere with Seller's manufacturing, distribution, sales, marketing, development and/or otherwise promotion of products (as well as any modifications, updates, upgrades and new versions of such products heretofore or hereafter made) if such activities are not in violation of this Section 6.04(a). (b) During the Restricted Period, in the event that Seller becomes aware that any of its former employees or consultants are either disclosing any confidential information related to the Trapper Surgical Products or Intended Use of the Trapper Surgical Products, infringing upon any of the Transferred Intellectual Property or Licensed Intellectual Property, it agrees that it shall at the direction of Purchaser use its reasonable best efforts to enforce any rights it may have, whether pursuant to Law, contract or otherwise, against such former employees in order to prevent such actions, provided, that the first $10,000 of out-of-pocket costs and expenses, in the aggregate, that are either related to (i) such efforts by Seller or (ii) related to actions taken directly by Novadaq against such employees or consultants (subject to, with respect to clause (ii), Novadaq providing Seller with reasonable advance written notice and the right to reasonably consult with Novadaq with respect to such actions by Novadaq), shall in each case be borne by Seller and the remainder shall be borne by Purchaser; and provided, further, that such expenses shall not be in duplication of any amounts payable with respect to such matters in the License Agreement.

Competing Products. During the Term (i) until the Exclusivity Termination Date (if any) or, (ii) with respect to individual country(ies), until conversion of Distributor’s exclusive appointment pursuant to Section 1.1 from exclusive distributor to non-exclusive distributor in such country(ies), Distributor shall not, and, if permitted under applicable Laws, shall cause its Sub-Distributors not to, directly or indirectly engage in the manufacture, sale, offer for sale, marketing, promotion, distribution, solicitation of order or service of any Competitive Insulin Infusion Device in the Territory or in the individual country(ies) referred to in clause (ii) of this Section 2.6, other than the Products as provided in this Agreement. In addition, once Distributor learns of any conduct by a Sub-Distributor of such activities, Distributor shall, unless such activities have been approved by Insulet and unless prohibited by applicable Laws, use commercially reasonable efforts to promptly end all such activities by such Sub-Distributor within a commercially reasonable time period, which in all events shall be within 6 months of first learning of any such prohibited activities by such Sub-Distributor, and if unable to end all such prohibited activities by such efforts: if permitted under applicable Laws (a) Seller agrees that during terminate the period commencing on the Closing Date and ending on the earlier of (1) the seventh anniversary of the Closing Date or (2) if Seller has not received any Product Royalties for any consecutive two-year period during the Royalty Period, the last day appointment of such twoSub-year period Distributor; and (the “Restricted Period”), Seller shall not directly or indirectly, b) stop selling (i) engage in or assist anyone other than Purchaser in engaging in the Restricted Business; (ii) have an interest in any Person that engages directly or indirectly through other Sub-Distributors or otherwise) the Products to such Sub-Distributor. If Insulet notifies Distributor in the Restricted Business writing of any conduct by a non-Affiliated Sub-Distributor of any such prohibited activities, Distributor shall thereafter confirm in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly cause, induce or encourage any actual or reasonably prospective client, customer, supplier or licensor of Purchaser with respect writing to the Intended Use of the Trapper Surgical Products (including any existing or former client or customer of Seller with respect to the Intended Use of the Trapper Surgical Products), or any other Person who Insulet that Distributor has a business relationship complied with the Purchaser with respect to the Intended Use of the Trapper Surgical Products, to terminate or adversely modify any such actual or prospective relationship. Notwithstanding the foregoing, (w) Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (x) Purchaser acknowledges that ERGO Systems are currently manufactured, distributed, sold, marketed, developed and/or otherwise promoted by Seller as multi-purpose camera imaging systems, including for use in, but not marketed solely for use in, the Restricted Business, and agrees that Seller shall have the right to continue to manufacture, distribute, sell, market, develop and/or otherwise promote its ERGO Systems for use in the Restricted Business consistent in all material respects with its practices as of the Closing, except that Seller expressly agrees that it shall not modify the ERGO Systems in any way for the purpose of enhancing their use in the Peri-Operative Field, change its marketing strategy as in effect at the Closing to promote the ERGO System for use in the Peri-Operative Field to a greater extent than the manner in which such use is promoted as of the Closing (e.g., by moving the use of the ERGO System in the Peri-Operative Field to a more prominent position in any current list of uses for the ERGO System, emphasizing the use of the ERGO System in the Peri-Operative Field by formatting or highlighting references to such use in a manner that differs from the formatting or highlighting used in references to any other uses of the ERGO System, or any other change having a similar effect), or conduct clinical trials of the ERGO System in the Peri-Operative Field, and (y) nothing contained herein shall, or is intended to, impact, impair or otherwise interfere with Seller's manufacturing, distribution, sales, marketing, development and/or otherwise promotion of products (as well as any modifications, updates, upgrades and new versions of such products heretofore or hereafter made) if such activities are not in violation of this Section 6.04(a). (b) During the Restricted Period, in the event that Seller becomes aware that any of its former employees or consultants are either disclosing any confidential information related to the Trapper Surgical Products or Intended Use of the Trapper Surgical Products, infringing upon any of the Transferred Intellectual Property or Licensed Intellectual Property, it agrees that it shall at the direction of Purchaser use its reasonable best efforts to enforce any rights it may have, whether pursuant to Law, contract or otherwise, against such former employees in order to prevent such actions, provided, that the first $10,000 of out-of-pocket costs and expenses, in the aggregate, that are either related to (i) such efforts by Seller or (ii) related to actions taken directly by Novadaq against such employees or consultants (subject to, with respect to clause (ii), Novadaq providing Seller with reasonable advance written notice and the right to reasonably consult with Novadaq immediately preceding sentence with respect to such actions by Novadaq)Sub-Distributor. The Parties agree that if Distributor breaches its obligations under this Section 2.6, Insulet shall have the right, in each case be borne by Seller and Insulet’s sole discretion, to either (a) provide written notice to convert Distributor’s appointment pursuant to Section 1.1 from exclusive distributor to non-exclusive distributor the remainder date of receipt of such notice shall be borne by Purchasertreated as an Exclusivity Termination Date; and provided, further, that such expenses shall not be in duplication of any amounts payable with respect or (b) terminate this Agreement pursuant to such matters in the License AgreementSection 10.2.

Competing Products. During the Term, neither BDSI, any Affiliate thereof, Collegium, nor any Collegium Affiliate shall, directly or indirectly (through Third Parties or, in the case of Collegium or a Collegium Affiliate, Affiliates of Collegium that are not Collegium Affiliates), knowingly or recklessly enable or contract with any Third Party or, in the case of Collegium or a Collegium Affiliate, Affiliates thereof other than Collegium Affiliates, to develop, manufacture, market, sell or distribute any Competing Product in the Territory for the Territory or itself develop, manufacture, market, sell or distribute any Competing Product in the Territory for the Territory, provided that, notwithstanding anything to the contrary, (X) neither the foregoing nor any other provision of this Agreement (other than Section 3.02(a)) shall be construed to limit BDSI’s, its Affiliates’, or any of its or their *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information. Third Party licensees’, sublicensees’, or contractors’ rights to (a) Seller agrees that during develop, manufacture, have manufactured, or use, in the period commencing on Territory any products (including BEMA Fentanyl Products or Competing Products) which are intended solely for commercial sale to Third Parties located outside the Closing Date and ending on Territory, (b) develop, manufacture, have manufactured, use, sell, or offer for sale in the earlier of (1) the seventh anniversary of the Closing Date Territory any products other than BEMA Fentanyl Products or Competing Products, or (2c) if Seller has otherwise exercise BDSI’s reserved rights under Section 3.02(a) and (Y) this Section 11.09 shall not received apply to any Product Royalties Affiliate of BDSI that is not controlled by Parent or Arius (with “controlled” having, for any consecutive two-year period during the Royalty Periodpurposes of this clause (Y), the last day of such two-year period (the “Restricted Period”), Seller shall not directly or indirectly, (i) engage in or assist anyone other than Purchaser in engaging meaning set forth in the Restricted Business; (iidefinition of Affiliate established under Article I) have an interest in any Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly cause, induce or encourage any actual or reasonably prospective client, customer, supplier or licensor of Purchaser with respect to the Intended Use of the Trapper Surgical Products (including any existing or former client or customer of Seller with respect to the Intended Use of the Trapper Surgical Products), or any other Person who has a business relationship with the Purchaser with respect to the Intended Use Affiliate of the Trapper Surgical Products, to terminate or adversely modify any such actual or prospective relationship. Notwithstanding the foregoing, (w) Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller Collegium that is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (x) Purchaser acknowledges that ERGO Systems are currently manufactured, distributed, sold, marketed, developed and/or otherwise promoted by Seller as multi-purpose camera imaging systems, including for use in, but not marketed solely for use in, the Restricted Business, and agrees that Seller shall have the right to continue to manufacture, distribute, sell, market, develop and/or otherwise promote its ERGO Systems for use in the Restricted Business consistent in all material respects with its practices as of the Closing, except that Seller expressly agrees that it shall not modify the ERGO Systems in any way for the purpose of enhancing their use in the Peri-Operative Field, change its marketing strategy as in effect at the Closing to promote the ERGO System for use in the Peri-Operative Field to a greater extent than the manner in which such use is promoted as of the Closing (e.g., by moving the use of the ERGO System in the Peri-Operative Field to a more prominent position in any current list of uses for the ERGO System, emphasizing the use of the ERGO System in the Peri-Operative Field by formatting or highlighting references to such use in a manner that differs from the formatting or highlighting used in references to any other uses of the ERGO System, or any other change having a similar effect), or conduct clinical trials of the ERGO System in the Peri-Operative Field, and (y) nothing contained herein shall, or is intended to, impact, impair or otherwise interfere with Seller's manufacturing, distribution, sales, marketing, development and/or otherwise promotion of products (as well as any modifications, updates, upgrades and new versions of such products heretofore or hereafter made) if such activities are not in violation of this Section 6.04(a)Collegium Affiliate. (b) During the Restricted Period, in the event that Seller becomes aware that any of its former employees or consultants are either disclosing any confidential information related to the Trapper Surgical Products or Intended Use of the Trapper Surgical Products, infringing upon any of the Transferred Intellectual Property or Licensed Intellectual Property, it agrees that it shall at the direction of Purchaser use its reasonable best efforts to enforce any rights it may have, whether pursuant to Law, contract or otherwise, against such former employees in order to prevent such actions, provided, that the first $10,000 of out-of-pocket costs and expenses, in the aggregate, that are either related to (i) such efforts by Seller or (ii) related to actions taken directly by Novadaq against such employees or consultants (subject to, with respect to clause (ii), Novadaq providing Seller with reasonable advance written notice and the right to reasonably consult with Novadaq with respect to such actions by Novadaq), shall in each case be borne by Seller and the remainder shall be borne by Purchaser; and provided, further, that such expenses shall not be in duplication of any amounts payable with respect to such matters in the License Agreement.

Competing Products. If Buyer or the Surviving Corporation or, following any Product Rights Disposition transaction including or involving Carbavance in the United States or the European Union, the licensee, sublicensee, assignee, transferee or acquiring Person in such transaction (aor any of its affiliates) Seller agrees that during the period commencing on the Closing Date conducts a Phase 3 Clinical Trial of, or commercializes, any antibiotic product comprising both a beta-lactamase inhibitor and ending on a beta-lactam compound for use in gram negative infections, other than any Product or Product Candidate (a “Competing Product”), prior to the earlier of (1) [**] or the seventh anniversary end of the Closing Date or (2) if Seller has not received any Product Royalties for any consecutive two-year period during the Royalty Period, the last day of such two-year period (the “Restricted Period”), Seller shall not directly or indirectly, (i) engage in or assist anyone other than Purchaser in engaging in the Restricted Business; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly cause, induce or encourage any actual or reasonably prospective client, customer, supplier or licensor of Purchaser Diligence Period with respect to Milestones #0, #0, #0, #0, #0 and #8 or such earlier time as Buyer has ceased to exercise Commercially Reasonable Efforts to achieve such Milestones as otherwise permitted under Section 2.6(b)(i), and Buyer, the Intended Use Surviving Corporation, or such licensee, sublicensee, assignee, transferee or acquiring Person, as applicable, ceases to use Commercially Reasonable Efforts to achieve such Milestones, and if: (A) such cesssation is not based on one or more factors (other than the development or commercialization by the Buyer, the Company or the licensee, sublicensee, assignee, transferee or acquiring Person of a Competing Product) that are enumerated in the definition of Commercially Reasonable Efforts or otherwise permitted under Section 2.6(b)(i) (excluding Section 2.6(b)(i)(A)); and (B) such cessation is undertaken without an intent to recommence the exercise of such Commercially Reasonable Efforts to achieve such Milestones; then within twenty (20) Business Days after such cessation, the Buyer shall make payment to the Paying Agent of the Trapper Surgical Products (including any existing or former client or customer of Seller with respect to the Intended Use of the Trapper Surgical Products), or any other Person who has a business relationship with the Purchaser with respect to the Intended Use of the Trapper Surgical Products, to terminate or adversely modify any such actual or prospective relationship. Notwithstanding the foregoing, (w) Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; following: (x) Purchaser acknowledges that ERGO Systems are currently manufactured, distributed, sold, marketed, developed and/or otherwise promoted by Seller as multi-purpose camera imaging systems, including for use in, but not marketed solely for use in, the Restricted Business, and agrees that Seller shall have the right to continue to manufacture, distribute, sell, market, develop and/or otherwise promote its ERGO Systems for use in the Restricted Business consistent in if such cessation occurs before payment of all material respects with its practices as of the ClosingMilestone Payments corresponding to Milestones #1, except that Seller expressly agrees that it shall not modify the ERGO Systems in any way for the purpose of enhancing their use in the Peri-Operative Field#2, change its marketing strategy as in effect at the Closing to promote the ERGO System for use in the Peri-Operative Field to a greater extent than the manner in which such use is promoted as #3 and #4, fifty percent (50%) of the Closing (e.g.then-unpaid Milestone Payments corresponding to Milestones #1, by moving the use of the ERGO System in the Peri-Operative Field to a more prominent position in any current list of uses for the ERGO System#2, emphasizing the use of the ERGO System in the Peri-Operative Field by formatting or highlighting references to such use in a manner that differs from the formatting or highlighting used in references to any other uses of the ERGO System, or any other change having a similar effect), or conduct clinical trials of the ERGO System in the Peri-Operative Field, #3 and #4; and (y) nothing contained herein shall, or is intended to, impact, impair or otherwise interfere with Seller's manufacturing, distribution, sales, marketing, development and/or otherwise promotion of products (as well as any modifications, updates, upgrades and new versions of such products heretofore or hereafter made) if such activities are not in violation transaction is consummated after payment of this Section 6.04(a). (b) During the Restricted Period, in the event that Seller becomes aware that any of its former employees or consultants are either disclosing any confidential information related to the Trapper Surgical Products or Intended Use all of the Trapper Surgical ProductsMilestone Payments corresponding to Milestones #1, infringing upon any #2, #3 and #4, fifty percent (50%) of the Transferred Intellectual Property or Licensed Intellectual PropertyMilestone Payment corresponding to Milestone #7 if such Milestone Payment has not previously been paid, it agrees that it shall at or, if the direction Milestone Payment corresponding to Milestone #7 was previously paid, fifty percent (50%) of Purchaser use its reasonable best efforts the Milestone Payment corresponding to enforce any rights it may have, whether Milestone #8 if such Milestone Payment has not previously been paid. Any payment pursuant to Law, contract or otherwise, against such former employees in order to prevent such actions, provided, that this paragraph shall constitute a partial pre-payment of the first $10,000 of out-of-pocket costs applicable Milestone Payment and expenses, in the aggregate, that are either related to (i) such efforts by Seller or (ii) related to actions taken directly by Novadaq against such employees or consultants (subject to, with respect to clause (ii), Novadaq providing Seller with reasonable advance written notice and the right to reasonably consult with Novadaq with respect to such actions by Novadaq), shall in each case be borne by Seller and the remainder shall be borne by Purchaser; and provided, further, applied against any obligation that such expenses shall not be in duplication of any amounts payable with respect Buyer may subsequently have to such matters in pay the License Agreementapplicable Milestone Payment.