Common use of Diligent Efforts Clause in Contracts

Diligent Efforts. (a) Commencing upon the Closing, Buyer shall use Diligent Efforts to achieve the Milestone Events. Buyer may satisfy such obligation in whole or in part through the activities of its Affiliates, and licensees, sublicensees, assignees and subsequent acquirers of Buyer or any of the Purchased Assets. If the Company in good faith believes that Buyer is not using Diligent Efforts to fulfill any of the Milestone Events, then the Company may provide Buyer with written notice thereof specifying in reasonable detail the reasons for such belief. If such notice is given, Buyer shall have [*] from receipt of such notice to cure such alleged deficiencies. If, after such cure period, the Company reasserts in writing substantially the same deficiencies (a “Diligence Notice”), then Buyer shall designate Representatives, including at least one officer with operating responsibility with respect to the Purchased Assets, to meet with the Company’s Representatives within [*] from the date of such Diligence Notice to address in good faith the Company’s belief that Buyer is not using Diligent Efforts and any steps that can be taken to cure any alleged breach of the obligation to use Diligent Efforts. If the participating parties fail to resolve these issues within [*] after such Diligence Notice, then the Company and Buyer shall have the right to initiate an alternative dispute resolution (“ADR”) proceeding in accordance with Section 9.8(b). (b) If Buyer (together with its Affiliates, licensees, sublicensees, assignees and subsequent acquirers) is no longer engaging in and does not have any plans to engage in the activities required to achieve the Milestone Events (which activities may include pursuing potential licensees, sublicensees, assignees and subsequent acquirers), then Buyer shall send prompt written notice thereof to the Company. (c) Failure of Buyer to fulfill or perform its obligation to use Diligent Efforts shall not subject such party to any Liability to the extent such failure is caused or occasioned by acts of God, acts of terrorism, fire, explosion, flood, drought, war, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or request of government, or by any other event or circumstance of like character to the foregoing beyond the reasonable control and without the fault or negligence of such party (a “Force Majeure Event”), provided such party uses commercially reasonable efforts to remove such Force Majeure Event, gives the Company prompt notice of the existence of such Force Majeure Event and as promptly as reasonably practicable resumes the Diligent Efforts after the Force Majeure Event is alleviated. (d) Notwithstanding anything to the contrary in this Agreement, Buyer may provide written notice to the Company of Buyer’s intent to discontinue Development and/or commercialization of any Product including through its Affiliates, licensees, sublicensees, assignees and subsequent acquirers (a “Product Discontinuation”) in which case the obligations of Buyer under Sections 5.3(a) to 5.3(c) and Sections 5.3(e) to 5.3(f) shall terminate immediately upon issuance of such notice. In the event that there is a Product Discontinuation and Buyer intends to revert to SK (its Affiliates or their respective successors or assigns) all rights granted by SK to Buyer pursuant to the SK License, Buyer will promptly provide notice of such intended reversion and the proposed timing of such reversion to the Company and will, at the subsequent written request of the Company that is received by Buyer within the proposed timing of such reversion provided by Buyer, use commercially reasonable efforts to assign the SK License to the Company or its nominee, at no additional expense to Buyer. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

Diligent Efforts. (a) Commencing upon the ClosingClosing Date and ending on the payment to Seller of Milestone Payments in an amount equal to the Milestone Payment Cap, Buyer Purchaser shall, shall cause each Affiliated Payment Obligor to, and shall use its commercially reasonable efforts to cause each other Payment Obligor to (i) subject to the last sentence of this Section 1.05, use Diligent Efforts to Exploit the Compound and the Products in order to achieve Net Sales and (ii) except in a manner that is consistent with the Milestone Events. Buyer may satisfy such obligation normal business practices of Purchaser and the other Payment Obligors, as applicable, not act in whole or in part through the activities of its Affiliates, and licensees, sublicensees, assignees and subsequent acquirers of Buyer or any of the Purchased Assets. If the Company in good faith believes a manner that Buyer is not using Diligent Efforts to fulfill any of the Milestone Events, then the Company may provide Buyer with written notice thereof specifying in reasonable detail the reasons for such belief. If such notice is given, Buyer shall have [*] from receipt of such notice to cure such alleged deficiencies. If, after such cure period, the Company reasserts in writing substantially the same deficiencies (a “Diligence Notice”), then Buyer shall designate Representativesintentionally reduces Net Sales, including at least one officer with operating responsibility with respect to by deferring or delaying the Purchased Assets, to meet receipt or recognition of any sales of any Product in a manner that is inconsistent with the Companynormal business practices of Purchaser and the other Payment Obligors, as applicable; provided, however, that, subject in all cases to Purchaser’s Representatives within [*] from the date compliance with its obligations under clause (i) of such Diligence Notice to address in good faith the Company’s belief that Buyer is not using Diligent Efforts and any steps that can be taken to cure any alleged breach of the obligation to use Diligent Efforts. If the participating parties fail to resolve these issues within [*] after such Diligence Noticethis Section 1.05, then the Company and Buyer (A) Purchaser shall have the right to initiate an alternative dispute resolution (“ADR”) proceeding in accordance with Section 9.8(b). (b) If Buyer (together with its Affiliates, licensees, sublicensees, assignees and subsequent acquirers) is no longer engaging in and does not have any plans to engage in pursue the activities required to achieve the Milestone Events (which activities may include pursuing potential licensees, sublicensees, assignees and subsequent acquirers), then Buyer shall send prompt written notice thereof to the Company. (c) Failure of Buyer to fulfill or perform its obligation to use Diligent Efforts shall not subject such party to any Liability to the extent such failure is caused or occasioned by acts of God, acts of terrorism, fire, explosion, flood, drought, war, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or request of government, or by any other event or circumstance of like character to the foregoing beyond the reasonable control and without the fault or negligence of such party (a “Force Majeure Event”), provided such party uses commercially reasonable efforts to remove such Force Majeure Event, gives the Company prompt notice Exploitation of the existence of Products in such Force Majeure Event a manner as Purchaser shall determine in good faith to be in its best interests, and as promptly as reasonably practicable resumes (B) following (but not prior to) the Diligent Efforts after First Commercial Sale, Purchaser shall have the Force Majeure Event is alleviated. (d) Notwithstanding anything to the contrary in this Agreement, Buyer may provide written notice to the Company of Buyer’s intent right to discontinue or delay the Development and/or commercialization of any Product including through its Affiliates, licensees, sublicensees, assignees the Compound and subsequent acquirers (a “Product Discontinuation”) Products in which case the obligations of Buyer under Sections 5.3(a) to 5.3(c) and Sections 5.3(e) to 5.3(f) shall terminate immediately upon issuance of such notice. In the event that there is that Purchaser reasonably determines in good faith that, notwithstanding Purchaser’s use of such Diligent Efforts, further investment in Development of Products would not be reasonably likely to generate a Product Discontinuation and Buyer intends to revert to SK (its Affiliates or their respective successors or assigns) all rights granted by SK to Buyer pursuant positive return on investment on a risk-adjusted basis. Notwithstanding the foregoing, prior to the SK LicenseFirst Commercial Sale, Buyer will promptly provide notice Purchaser shall not discontinue or delay the Development of the Compound and Products, including by failing to pay undisputed amounts due under the Transition Services Agreement (provided, that notwithstanding anything herein to the contrary, Purchaser may discontinue or delay such Development at any time if (x) directed to do so on the basis of human safety by any Governmental Entity or the data safety monitoring board for an Ongoing Trial, (y) the Company would not be able to distribute and sell in the United States the Product that is the subject of the Ongoing Trials without infringing any Third Party’s Intellectual Property in existence as of the time of such intended reversion and the proposed timing of such reversion to the Company and willdiscontinuation or delay, at the subsequent written request of the Company that is received by Buyer within the proposed timing of such reversion provided by Buyer, use commercially reasonable efforts to assign the SK License to the Company or its nominee, at no additional expense to Buyer. (z) [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended**].

Diligent Efforts. (a) Commencing upon the Closing, Buyer Parent and Surviving Corporation (and any subsequent acquirer of either Parent or Surviving Corporation) shall use Diligent Efforts to achieve the Milestone Events. Buyer may satisfy such obligation in whole or in part through the activities of its Affiliates, and licensees, sublicensees, assignees and subsequent acquirers of Buyer or any of the Purchased Assets. If the Company Stockholders’ Representative in good faith believes that Buyer Parent is not using the Diligent Efforts required hereby to fulfill any of the Milestone EventsEvents , then the Company Stockholders’ Representative may provide Buyer Parent with written notice thereof specifying in reasonable detail the reasons for such belief. If such notice is given, Buyer Parent shall have [***] days from receipt of such notice to cure such alleged deficiencies. If, after such cure period, the Company Stockholders’ Representative reasserts in writing substantially the same deficiencies (a “Diligence Notice”), then Buyer shall designate Representatives, including at least one officer with operating responsibility with respect to the Purchased Assets, to meet with the Company’s Representatives within [*] from the date of such Diligence Notice to address in good faith the Company’s belief that Buyer is not using Diligent Efforts and any steps that can be taken to cure any alleged breach of the obligation to use Diligent Efforts**]. If the participating parties fail to resolve these issues within [*] after such Diligence Notice, then the Company Parent and Buyer shall have the right to initiate an alternative dispute resolution (“ADR”) proceeding in accordance with Section 9.8(b). (b) If Buyer (together with its Affiliates, licensees, sublicensees, assignees and subsequent acquirers) is Surviving Corporation or any of their respective Affiliates are no longer engaging in and does not have any plans to engage in the activities required to achieve the Milestone Events (which activities may include pursuing potential licensees, sublicensees, assignees and subsequent acquirers)Events, then Buyer Parent shall send prompt written notice thereof to the Company. (c) Stockholders’ Representative within 60 calendar days of the date on which Parent and Surviving Corporation or any of their respective Affiliates first cease engaging in the Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. required activities. Following a Successor’s acquisition of Parent or the Surviving Corporation, as applicable; such Successor shall, for a period of at least [***] following such acquisition, exercise Diligent Efforts at least equal to those that Parent devoted to the DZNS Product in the year preceding the acquisition. Failure of Buyer Parent or Surviving Corporation to fulfill or perform its obligation to use Diligent Efforts under this Agreement shall not subject such party to any Liability liability to the extent such failure is caused or occasioned by acts of God, acts of terrorism, fire, explosion, flood, drought, war, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or request of government, or by any other event or circumstance of like character to the foregoing beyond the reasonable control and without the fault or negligence of such party party, (a “Force Majeure Event”), provided such party uses commercially reasonable efforts to remove such Force Majeure Event, gives the Company Stockholders’ Representative prompt notice of the existence of such Force Majeure Event and as promptly as reasonably practicable resumes the Diligent Efforts after the Force Majeure Event is alleviated. (d) . Notwithstanding anything to the contrary in this Agreement, Buyer at any time after the Effective Time Parent may provide written notice to the Company Stockholders’ Representative of BuyerParent’s intent to discontinue Development and/or development and commercialization of any Product including through its Affiliatesthe DZNS Products, licensees, sublicensees, assignees and subsequent acquirers (a “Product Discontinuation”) in which case the obligations of Buyer Parent and its Affiliates under Sections 5.3(a) to 5.3(c) and Sections 5.3(e) to 5.3(f) this Agreement, including this Section 1.7, shall terminate immediately upon issuance of such notice. In notice (except (i) Section 4.3 shall survive for three (3) years after the event that there is a Product Discontinuation Closing and Buyer intends (ii) Parent’s obligation to revert to SK (its Affiliates or their respective successors or assigns) all rights granted by SK to Buyer pursuant pay any unpaid amounts under this Agreement which were earned prior to the SK License, Buyer will promptly provide notice issuance of such intended reversion and notice shall survive). Following the proposed timing Stockholder’s Representative’s receipt of such reversion to the Company and willwritten notice from Parent, then, at the subsequent written request of the Company that is received by Buyer within Stockholders’ Representative, Parent shall, subject to the proposed timing terms and conditions of such reversion provided by Buyer, use commercially reasonable efforts to assign the SK License and to the Company extent permitted by the SK License and SK Bio, assign to the Stockholders’ Representative or its nominee, at no additional expense on behalf of the Former Holders, all assets of Parent and its Affiliates (including intellectual property rights and contracts) solely related to Buyer. [*] = Certain confidential information contained the DZNS Product (specifically including, to the extent permitted under the SK License or otherwise approved in this documentwriting by SK Bio, marked all rights under the SK License, all Neuronex Patents, all data solely related to the DZNS Product developed by bracketsor on behalf of the Company prior to Closing, has been omitted all regulatory filings and filed separately approvals solely related to the DZNS Product, and all inventory of DZNS Product (with the Securities Stockholders’ Representative promptly reimbursing Parent’s actual costs for such inventory)), with the Parent and Exchange Commission pursuant the Stockholders’ Representative working together in good faith to Rule 24b-2 of the Securities Exchange Act of 1934, as amendedfacilitate and effectuate such assignment.

Diligent Efforts. Phytera and Tsumura each represent that each shall ---------------- use its reasonable best efforts to bring each Compound it elects to enter into product development (aStage 5) Commencing upon to the Closingmarketplace through a diligent and aggressive program of development, Buyer shall use Diligent Efforts production and distribution and each party acknowledges that the exclusive license granted by the other party pursuant to achieve the Milestone EventsSection 4 above was granted based on such representation. Buyer may satisfy such obligation However, in whole or in part through the activities of so doing and otherwise meeting its Affiliates, and licensees, sublicensees, assignees and subsequent acquirers of Buyer or any of the Purchased Assets. If the Company in good faith believes that Buyer is not using Diligent Efforts to fulfill any of the Milestone Events, then the Company may provide Buyer with written notice thereof specifying in reasonable detail the reasons for such belief. If such notice is given, Buyer shall have [*] from receipt of such notice to cure such alleged deficiencies. If, after such cure period, the Company reasserts in writing substantially the same deficiencies (a “Diligence Notice”), then Buyer shall designate Representatives, including at least one officer with operating responsibility obligations hereunder with respect to the Purchased Assetsdevelopment, production and distribution of Products, Phytera and Tsumura shall each be entitled to exercise prudent and reasonable business judgement, and shall be considered to be meeting such obligations so long as each is reporting to the other party and the Steering Committee as provided herein and is providing the necessary financial, personnel and other resources which are reasonably required to maintain progress in accomplishing the development, production and distribution of Products, and conducts the activities reasonably required to maintain scheduled progress in accomplishing the same. Neither Phytera nor Tsumura shall be responsible for any failure which arises as a direct result of (i) unanticipated technical or scientific problems or other causes outside the direct control of the parties and their Affiliates and Licensees, (ii) failure of the other party to meet with the Company’s Representatives within [*] from the date of such Diligence Notice to address in good faith the Company’s belief that Buyer is not using Diligent Efforts and any steps that can be taken to cure any alleged breach its obligations hereunder, or (iii) action ______________ * This portion of the obligation Exhibit has been omitted pursuant to use Diligent Efforts. If the participating parties fail to resolve these issues within [*] after such Diligence Notice, then the Company and Buyer shall have the right to initiate an alternative dispute resolution (“ADR”) proceeding in accordance with Section 9.8(b). (b) If Buyer (together with its Affiliates, licensees, sublicensees, assignees and subsequent acquirers) is no longer engaging in and does not have any plans to engage in the activities required to achieve the Milestone Events (which activities may include pursuing potential licensees, sublicensees, assignees and subsequent acquirers), then Buyer shall send prompt written notice thereof to the Company. (c) Failure of Buyer to fulfill or perform its obligation to use Diligent Efforts shall not subject such party to any Liability to the extent such failure is caused or occasioned by acts of God, acts of terrorism, fire, explosion, flood, drought, war, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or a request of government, or by any other event or circumstance of like character to the foregoing beyond the reasonable control and without the fault or negligence of such party (a “Force Majeure Event”), provided such party uses commercially reasonable efforts to remove such Force Majeure Event, gives the Company prompt notice for Confidential Treatment under Rule 406 of the existence Securities Act of such Force Majeure Event and 1033, as promptly as reasonably practicable resumes amended. The complete Exhibit, including the Diligent Efforts after the Force Majeure Event is alleviated. (d) Notwithstanding anything to the contrary in this Agreement, Buyer may provide written notice to the Company of Buyer’s intent to discontinue Development and/or commercialization of any Product including through its Affiliates, licensees, sublicensees, assignees and subsequent acquirers (a “Product Discontinuation”) in portions for which case the obligations of Buyer under Sections 5.3(a) to 5.3(c) and Sections 5.3(e) to 5.3(f) shall terminate immediately upon issuance of such notice. In the event that there is a Product Discontinuation and Buyer intends to revert to SK (its Affiliates or their respective successors or assigns) all rights granted by SK to Buyer pursuant to the SK License, Buyer will promptly provide notice of such intended reversion and the proposed timing of such reversion to the Company and will, at the subsequent written request of the Company that is received by Buyer within the proposed timing of such reversion provided by Buyer, use commercially reasonable efforts to assign the SK License to the Company or its nominee, at no additional expense to Buyer. [*] = Certain confidential information contained in this document, marked by bracketstreatment has been requested, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 Commission. or inaction of any federal, state or other governmental agency whose approval is required for clinical investigation or commercial sales of the Securities Exchange Act Products where such activity or inactivity does not arise from the intentional or negligent acts or failures to act on the part of 1934Phytera or Tsumura, as amendedtheir Affiliates or Licensees.