Common use of Failure to Meet Sales and Marketing Plan Clause in Contracts

Failure to Meet Sales and Marketing Plan. (a) In the event that REPLIDYNE and its sublicensees, fail for two (2) consecutive calendar years to substantially perform the planned sales and marketing activities of the Drug Product stipulated in the Sales and Marketing Plan, including the sales forecast in the Sales and Marketing Plan, for reasons other than those beyond their reasonable control, DSP shall so notify REPLIDYNE and the Parties shall promptly discuss the matter in good faith for up to [ *** ] months following REPLIDYNE’s receipt of such notice. Within [ *** ] days after expiration of such [ *** ] month period, if the Parties do not otherwise agree, upon written notice to REPLIDYNE, DSP may alter the exclusive license granted to REPLIDYNE under this Agreement to become a non-exclusive license. In calendar years in which REPLIDYNE and its sublicensees have been selling Drug Product for a full twelve (12) months, “substantially perform” shall mean [ *** ]. (b) If the license becomes non-exclusive, REPLIDYNE shall no longer have the first right under Section 10.2 to bring a suit or action for infringement of the Patents in the Territory and the Parties shall no longer be bound by Article 15. In addition, REPLIDYNE shall grant to DSP, a non-exclusive, royalty-bearing license to use the information, know-how, and documentation generated by REPLIDYNE under this Agreement in connection with the development and commercialization of Drug Product. DSP may sublicense the foregoing rights upon prior written notice to REPLIDYNE. In consideration for the rights granted to DSP, DSP shall pay REPLIDYNE a royalty equivalent to [ *** ] percent ([ *** ]%) of net sales of Drug Product by DSP, its Affiliates or sublicensees.

Failure to Meet Sales and Marketing Plan. (a) In Commencing with the second calendar year in which REPLIDYNE and its sublicensees have been selling Drug Product in the Territory for the full twelve (12) months of such calendar year, and for the following four (4) calendar years thereafter, in the event that REPLIDYNE and its sublicensees, fail for two (2) consecutive calendar years to substantially perform the planned sales and marketing activities of the Drug Product stipulated in the Sales and Marketing Plan, including the sales forecast in the Sales and Marketing Plan, for reasons other than those beyond their reasonable control, DSP DAP shall so notify REPLIDYNE and the Parties shall promptly discuss the matter in good faith for up to [ *** ] months following REPLIDYNE’s receipt of such notice. Within [ *** ] days after expiration of such [ *** ] month period, if REPLIDYNE does not pay to DAP an amount equal to the difference between (i) the royalties that would have been due to DAP under Section 6.2.1 had REPLIDYNE achieved [ *** ] the Sales and Marketing Plan for such two (2) consecutive calendar years and (ii) the royalties paid to DAP based on actual sales, or the Parties do not otherwise agree, upon written notice to REPLIDYNE, DSP DAP may alter the exclusive license granted to REPLIDYNE under this Agreement to become a non-exclusive license. In calendar years in which REPLIDYNE and its sublicensees have been selling Drug Product for a full twelve (12) months, “substantially perform” shall mean [ *** ]. (b) If the license becomes non-exclusive, REPLIDYNE shall no longer have the first right under Section 10.2 to bring a suit or action for infringement of the Patents in the Territory and the Parties shall no longer be bound by Article 15. In addition, REPLIDYNE shall grant to DSPDAP, a non-exclusive, royalty-bearing license to use the information, know-how, and documentation generated by REPLIDYNE under this Agreement in connection with the development and commercialization of Drug Product. DSP DAP may sublicense the foregoing rights upon prior written notice to REPLIDYNE. In consideration for the rights granted to DSPDAP, DSP DAP shall pay REPLIDYNE a royalty equivalent to [ *** ] percent ([ *** ]%) of net sales of Drug Product by DSPDAP, its Affiliates or sublicensees.” 10. A new Section 8.4 shall be added to Article 8 and be written as: