Common use of Election to Negotiate Clause in Contracts

Election to Negotiate. XenoPort shall have [**] after receiving an Option Notice pursuant to Sections 5.4.1(a) or 5.4.1(b)(i) above, as applicable, to notify Xanodyne in writing that XenoPort is interested in co-promoting the applicable XenoPort Product(s) and Xanodyne Products in the Territory for the applicable Co-Promotion Field (an "Election Notice"). Together with any such Election Notice, XenoPort shall provide to Xanodyne a report of XenoPort's co-promotion capabilities in the Territory with respect to the applicable Co-Promotion Field in reasonably sufficient detail to demonstrate that XenoPort has, or will have, reasonably sufficient commercialization capabilities to co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. Promptly upon receipt of an Election Notice, and in no event more than [**] following the date of such Election Notice, [**], Xanodyne shall provide XenoPort with a term sheet outlining the economic and other relevant terms of such co-promotion, and the Parties shall negotiate in good faith towards mutually acceptable terms and conditions on which XenoPort may co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. During such negotiations, Xanodyne shall promptly provide to XenoPort such additional information regarding the commercialization of such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field as is reasonable and customary in due diligence reviews for prospective co-marketing and/or co-promotion arrangements. If the Parties agree on such terms, the Parties shall prepare and execute a definitive agreement setting forth the agreed terms (a "Co-Promotion Agreement"). If XenoPort fails to issue an Election Notice within [**] after receiving an Option Notice for a particular Co-Promotion Field or, if Xanodyne provided to XenoPort a term sheet within the [**] period specified above and the Parties have not entered into a Co-Promotion Agreement within [**] after the date of such Election Notice ("Negotiation Period"), then Xanodyne shall be free to commercialize such XenoPort Product(s) in the Territory in the applicable Co-Promotion Field alone, or to initiate negotiations with a Third Party with respect to rights to co-market and co-promote such XenoPort Product(s) in the Territory in such Co-Promotion Field.

Election to Negotiate. XenoPort shall have [**... * ...] after receiving an Option Notice pursuant to Sections 5.4.1(a) or 5.4.1(b)(i) above, as applicable, to notify Xanodyne in writing that XenoPort is interested in co-promoting the applicable XenoPort Product(s) and Xanodyne Products in the Territory for the applicable Co-Promotion Field (an "“Election Notice"”). Together with any such Election Notice, XenoPort shall provide to Xanodyne a report of XenoPort's ’s co-promotion capabilities in the Territory with respect to the applicable Co-Promotion Field in reasonably sufficient detail to demonstrate that XenoPort has, or will have, reasonably sufficient commercialization capabilities to co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. Promptly upon receipt of an Election Notice, and in no event more than [**... * ...] following the date of such Election Notice, [**... * ...], Xanodyne shall provide XenoPort with a term sheet outlining the economic and other relevant terms of such co-promotion, and the Parties shall negotiate in good faith towards mutually acceptable terms and conditions on which XenoPort may co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. During such negotiations, Xanodyne shall promptly provide to XenoPort such additional information regarding the commercialization of such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field as is reasonable and customary in due diligence reviews for prospective co-marketing and/or co-promotion arrangements. If the Parties agree on such terms, the Parties shall prepare and execute a definitive agreement setting forth the agreed terms (a "“Co-Promotion Agreement"”). If XenoPort fails to issue an Election Notice within [**... * ...] after receiving an Option Notice for a particular Co-Promotion Field or, if Xanodyne provided to XenoPort a term sheet within the [**... * ....] period specified above and the Parties have not entered into a Co-Promotion Agreement within [**... * ...] after the date of such Election Notice ("“Negotiation Period"”), then Xanodyne shall be free to commercialize such XenoPort Product(s) in the Territory in the applicable Co-Promotion Field alone, or to initiate negotiations with a Third Party with respect to rights to co-market and co-promote such XenoPort Product(s) in the Territory in such Co-Promotion Field. * Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

Election to Negotiate. XenoPort shall have In the event Colgate notifies Introgen in writing within [**] days after receiving an Option Colgate’s receipt of the Trigger Notice pursuant to Sections 5.4.1(a) or 5.4.1(b)(i) above, as applicable, to notify Xanodyne in writing that XenoPort it is interested in co-promoting pursuing a transaction within the applicable XenoPort Product(s) and Xanodyne Products in scope of the Territory for Trigger Notice (the applicable Co-Promotion Field (an "“Election Notice"”). Together with any such Election Notice, XenoPort shall provide to Xanodyne a report of XenoPort's co-promotion capabilities in the Territory with respect to the applicable Co-Promotion Field in reasonably sufficient detail to demonstrate that XenoPort has, or will have, reasonably sufficient commercialization capabilities to co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. Promptly upon receipt of an Election Notice, Introgen and in no event more than [**] following the date of such Election Notice, [**], Xanodyne shall provide XenoPort with a term sheet outlining the economic and other relevant terms of such co-promotion, and the Parties Colgate shall negotiate in good faith towards mutually acceptable terms and conditions on which XenoPort may co-promote such XenoPort Product(s) and, if applicable, Xanodyne Products in the Territory in the applicable Co-Promotion Field. During such negotiations, Xanodyne shall promptly provide to XenoPort such additional information regarding the commercialization of such XenoPort Product(sa transaction (it being understood that the marketing and distribution rights (including any Contingent Rights to market and/or distribute) andoffered to Colgate in such transaction would be, if applicableand the manufacturing and development rights offered to Colgate may be, Xanodyne Products in exclusive within the Territory in the applicable Co-Promotion Field as is reasonable and customary in due diligence reviews for prospective co-marketing and/or co-promotion arrangements. If the Parties agree on such terms, the Parties shall prepare and execute a definitive agreement setting forth the agreed terms (a "Co-Promotion Agreement"Field). If XenoPort fails to issue an Election Notice within [**] after receiving an Option Notice for a particular Co-Promotion Field or, if Xanodyne provided to XenoPort a term sheet within the [**] period specified above and the Parties have not entered into a Co-Promotion Agreement written agreement with respect to such transaction within [**] days after the date of such Election Colgate receives the Trigger Notice ("“Negotiation Period"”), then Xanodyne for a period of [*] months after the expiration of the Negotiation Period (the “Permitted Licensing Window”), Introgen shall be free to commercialize such XenoPort Product(sgrant to one or more Third Party(ies) some or all of the development, manufacturing, marketing and/or distribution rights and/or Contingent Rights for Products within the Subject Area; [*]. If Colgate does not provide an Election Notice to Introgen within [*] days after the Trigger Notice, or if after delivering the Election Notice and during the Negotiation Period Colgate does not agree to enter into a transaction on the terms last proposed by Introgen and/or does not offer to Introgen in writing alternative terms under which Colgate would agree to enter into a transaction within the Subject Area, then Introgen shall be free to grant to one or more Third Parties, development, manufacturing, marketing and/or distribution rights and/or Contingent Rights for, or develop, manufacture, market and/or distribute itself the Product (in the Territory case of the Product Negotiation Right having been triggered) or Products within the Subject Area (in the applicable Co-Promotion case of the Field aloneNegotiation Right having been triggered), or on such terms and/or under such conditions as Introgen considers appropriate without further obligation to initiate negotiations with a Third Party with respect to rights to co-market and co-promote such XenoPort Product(s) in the Territory in such Co-Promotion FieldColgate under this Section 3.2.