Common use of Failure to Supply Clause in Contracts

Failure to Supply. 4.6.1 If NEKTAR AL cannot supply at least eighty percent (80%) of the amount of SELECTED REAGENT ordered by COMPANY pursuant to Section 4.4 that is within the limits set forth in Section 4.3 in any two (2) consecutive calendar quarters by the time for delivery of such shipment provided in Section 4.5, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL in writing that a quantity of SELECTED REAGENT due for delivery has not been delivered, then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity of SELECTED REAGENT (a “FAILURE”). NEKTAR AL shall, subject to this Section 4.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. 4.6.2 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL shall have the option to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT from the CONTRACT MANUFACTURER. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.

Failure to Supply. 4.6.1 If NEKTAR AL cannot (a) Given covenants to EES that it will use best commercial efforts to ensure, at all times, supply of Products and Ancillary Products that is adequate given the applicable Forecast. Given further covenants to EES to give the supply of Products and Ancillary Products at all times at least eighty percent the importance and priority given to any other Given product line/business venture. Given shall establish and maintain a supply risk mitigation plan (80%the “Supply Risk Plan”), the initial version of which is attached as Exhibit 16.02 (a). The Supply Risk Plan will be updated annually as part of the First Annual Marketing Plan Meeting to occur each year. (b) If Given does not ship within the Forecast, as defined in Section 4.01 (a) of this Agreement: (i) any Valid Orders of Product for a consecutive 30 day period; or (ii) at least 50% of Valid Orders of Product for a consecutive 60 day period; or (iii) at least 75% of Valid Orders of Product for a consecutive 90 day period, this shall be deemed a failure to supply (the amount “Failure to Supply”). Given shall notify EES promptly of SELECTED REAGENT ordered any circumstances of which it becomes aware and which could reasonably be expected to result in a Failure to Supply. In case of a Force Majeure (as contemplated by COMPANY Section 16.06 of this Agreement) Given shall be able to rely < * * * > times during the Term of this Agreement for (i) up to < * * * >; or (ii) for up to < * * * > on a Force Majeure excuse in order to avert a Failure to Supply. (c) Within 15 days of Given notifying EES of circumstances of which it becomes aware and which could reasonably be expected to result in a Failure to Supply, Given shall provide EES with a detailed written recovery plan aimed at promptly remedying the Failure to Supply. Such plan shall include all material steps and timing associated with the recovery, as well as any other options that were considered to cure the Failure to Supply in a similar or accelerated manner as the one actually chosen in the recovery plan. Given shall, at EES’ express _________________________ < * * * > Omitted pursuant to a confidential treatment request. The confidential information has been separately filed with the SEC request, meet to discuss or provide written response to EES’ questions or suggestions regarding such recovery plan. (d) If, in EES’ reasonable judgment, the recovery plan provides evidence that the Failure to Supply can and most likely will be cured within 90 days, Given shall implement it promptly. If, in EES’ reasonable judgment, the recovery plan doesn’t provide such evidence, then EES can request and Given shall promptly seek and receive proposals within no more than 30 days for alternative supply from up to three other potential sources, as specified by EES with Given’s consent, such consent not to be unreasonably withheld, for each major component and activity affecting the Failure to Supply. Given shall share the detailed information resulting from such requests for proposals with EES. (e) If, in EES’ reasonable judgment, it is established that a mechanism to cure the Failure to Supply is technically feasible, Given shall use diligent efforts to re-establish supply, with the help of such mechanism, in the fastest and the most reliable manner as possible (on balance, reliability and speed shall take precedence over financial considerations). (f) If, although the re-establishment of supply is technically feasible, Given is unable or does not take the steps contemplated in paragraph (e) above, Given shall, upon EES’ express written request, promptly grant EES a license to all Given Technology (including but not limited to Given Patent Rights, Given Know-How, regulatory approvals, etc.) necessary for EES to re-establish supply of the Product and, if necessary, the Ancillary Products (as of the Effective Date both Parties contemplate in particular Pemstar (Pemstar Inc., A Minnesota Corporation, Rochester, Minnesota) to manufacture the Product. Additionally, Given shall in good time obtain and provide all necessary approvals, documents, processes and systems for EES to be able and organize such third-party manufacturing and supply (e.g., Ministry of Health Approval, customer lists and order taking systems, etc.), all at no additional cost to EES. All third parties retained by EES to re-establish supply shall execute customary confidentiality agreements with respect to Given Technology and shall be supplying the ECE and any components exclusively to EES (or to Given, provided Given resumes production). (g) If EES organizes third-party manufacturing and/or supply under this Section 4.4 16.02, and until such time that is within Given takes on complete responsibility for supply again, the limits set forth commercial and payment terms and conditions specified in this Agreement shall change as follows: (i) EES’ obligation to allocate at least < * * * > FTEs according to Section 4.3 2.06 of this Agreement shall cease during the Failure to Supply. (ii) If the Product doesn’t face competition in the market the point in time contemplated by any two of EES’ performance hurdles in Sections 4.04 and 14.02 of this Agreement (“the Hurdles”) shall be postponed by twice the respective Failure to Supply period; if it faces competition in the market, the Hurdles shall be postponed until the later of (1) one calendar year, or (2) consecutive calendar quarters twice the respective Failure to Supply period. _________________________ < * * * > Omitted pursuant to a confidential treatment request. The confidential information has been separately filed with the SEC (iii) EES’ obligation to pay for unfulfilled Forecasts according to Section 4.01(d) of this Agreement shall cease during the Failure to Supply and three months after Given resumes complete responsibility for supply according to paragraph (i) below. (iv) If the Failure to Supply occurs during the Exclusive Period such Exclusive Period, shall be extended by twice the respective Failure to Supply period. Otherwise the Term of the Agreement shall be extended by twice the respective Failure to Supply period. (v) EES’ obligations specified in Article V of this Agreement shall be delayed until the Failure to Supply period ends as described in paragraph (h) below. (vi) EES shall pay Given a royalty of < * * * >% on Product sales until such time that Given takes on complete responsibility for supply again. (vii) Given shall have the right to perform the rest of the services contemplated by this Agreement (aside from manufacturing and including, by way of example, shipment, etc.) as far not affected by the time for delivery Failure to Supply, subject to EES’ consent, such consent not to be unreasonably withheld. In the case of EES’ withholding such shipment provided in Section 4.5consent, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL such withholding shall be promptly explained in writing that by EES to Given and Given shall have the right to cure. In such case, the Parties shall negotiate in good faith a quantity fair and adequate compensation for such services performed by Given. (viii) Given shall have no grounds to terminate EES’ exclusivity or this Agreement, both as contemplated by Section 14.03 above. (h) A Failure to Supply period shall end once supply is completely re-established, with 100% of SELECTED REAGENT due Valid Orders being filled for delivery has not been delivereda thirty (30) day consecutive period, then NEKTAR AL be it (i) through Given taking on complete responsibility for supply, or (ii) through EES using a third party to assume the responsibility for supply. (i) Given shall be considered entitled to resume complete responsibility for supply as having failed contemplated by this Agreement upon Given (i) building a 90 day safety stock of Product; and (ii) showing reasonable proof that it will be able to manufacture maintain and sustain adequate supply of Product at a level of 150% of the EES Forecast for at least twelve months forward. Upon Given resuming complete responsibility for supply, the changes in commercial and payment terms and conditions outlined in paragraph (g) above, subparagraphs (i) (iii) (subject to sell the 3 month “trail” provided therein), (v), (vi), (vii) and (viii), above, shall end and the other provisions of this Agreement shall continue in full force and effect. (j) Once a Failure to COMPANY Supply period ends, Given shall reimburse EES for its documented costs and expenses (including labor and capital) reasonably associated with establishing third party supply, plus interest (U.S. Prime Interest Rate), as follows: _________________________ < * * * > Omitted pursuant to a confidential treatment request. The confidential information has been separately filed with the relevant quantity of SELECTED REAGENT SEC (a i) Once Given resumes complete responsibility for supply, the commission on the Selling Price will be increased by 10% to EES until such time as EES’ net costs and expenses, as detailed in Schedule 16.02(j)i, in the third-party manufacturing and/or supply for Products is recovered (the “FAILURERepayment Period”). NEKTAR AL shallIn no case shall the Repayment Period exceed three years (counting from Given’s resuming the responsibility for supply). If the modified commission scheme described in subparagraph (i) above is insufficient to reimburse EES within three years, subject any remaining non-reimbursed costs and expenses will become due and payable to EES within 30 days of the end of the Repayment Period. Given shall have the right to use any assets (tangible and intangible) acquired by EES during the Failure to Supply period and legal title in such assets shall transfer to Given upon complete reimbursement by Given as contemplated under this paragraph (j). (k) If a Failure to Supply period lasts more than 12 consecutive months or if a Failure to Supply occurs more than twice during the Term of this Agreement EES shall have the right to terminate this Agreement by giving Given one month prior written notice. In case of such termination, Given shall pay to EES within 120 days of receiving such termination notice the following compensation: (i) The higher of (1) The aggregated amount of milestone payments (as specified in Article V of this Agreement) divided by the total number of Contract Years according to the applicable Term, multiplied by the number of Contract Years remaining in the Term. (By way of example, if termination occurs in Contract Year 10 and the applicable Term is 15 years, Given shall pay EES $< * * * > / 15 X < * * * > = $< * * * > US $); or (2) if Failure to Supply occurred in Contract Year 1 - 5, 2 times End-User sales for the last full Contract Year; if Failure to Supply occurred in Contract Year 6 - 10, 1 time End-User sales for the last full Contract Year; if Failure to Supply occurred in Contract Year 10 - 15, 0.5 times EES’ End-User Sales for the last full Contract Year. (ii) If in the judgment of a reasonable businessman a Failure to Supply is resulting from bad faith or Given’s unwillingness to supply or re-establish supply, the compensation due according to subparagraph (i) above shall quadruple and EES shall have the right to claim all damages, including lost profits. (l) Subject to paragraph (e) above, each party will use reasonable commercial efforts in order to mitigate, to the extent possible, expenses, fees and capital outlays during the failure to supply period in order to reduce possible damages and reimbursement imposed or levied on the other party. (m) EES’ remedies contemplated by Section 16.02 of this Agreement shall be EES’ sole and exclusive remedies in a Failure to Supply situation. Article 9 and Section 16.09 shall not apply to this Section 4.6, work 16.02. _________________________ < * * * > Omitted pursuant to a confidential treatment request. The confidential information has been separately filed with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. 4.6.2 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL shall have the option to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT from the CONTRACT MANUFACTURER. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.SEC

Failure to Supply. 4.6.1 If NEKTAR AL cannot supply Hospira fails to deliver or anticipates that it will be unable to deliver at least eighty percent (80%) *** of the quantity of Product ordered pursuant to the terms of this Agreement for ninety (90) or more consecutive days after the delivery date specified in the Firm Order, Hospira will promptly notify Orchid. If Hospira (a) fails to deliver at least *** of the quantity of Product for *** or more consecutive days after the delivery date specified in the Firm Order, or (b) upon request by Orchid, fails to provide adequate assurance of its ability to continue to deliver Product as required by the terms of this Agreement (other than, in each case (a) and (b), as a result of a Force Majeure Event, any material breach of this Agreement by Orchid or its Affiliates, any failure of the equipment, processes or technology transferred to Hospira by Orchid under the Business Transfer Agreement (but only to the extent any failure is not the result of ordinary wear and tear or failure in maintenance by Hospira), or any gross negligence or willful misconduct on the part of Orchid or its Affiliates) (a “Supply Failure”), then as Orchid’s sole remedy, Orchid shall have the right to agree to a revised delivery date or Orchid may: (i) cancel some or all existing purchase orders for Product that are subject to the Supply Failure without penalty and if additionally requested by Orchid, terminate this Agreement with respect to the affected Product; and/or (ii) cancel some or all existing purchase orders for Product that are the subject of the Supply Failure without penalty and purchase (or permit Orchid’s customer to purchase) replacement Product from a Third Party and recover from Hospira the difference in price paid for such replacement Product and the Price that Orchid would have paid to Hospira under this [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. Agreement for the equivalent amount of SELECTED REAGENT ordered by COMPANY Product, together with any incidental damages (collectively, “Cost to Cover Damages”), provided however, that in no event shall Hospira’s liability or Cost to Cover Damages for any canceled purchase order (or portion thereof) exceed a *** over the Price that Orchid would have paid to Hospira under this Agreement for the equivalent amount of Product. Notwithstanding anything contained herein to the contrary, upon Hospira’s provision of notice to Orchid that it is no longer subject to a Supply Failure and is able to recommence supplying Products to Orchid in accordance with this Agreement, Orchid shall have no further rights pursuant to Section 4.4 that is within subsections (i) and (ii) above in connection with the limits applicable Supply Failure, and from the date of such notice from Hospira, Orchid shall once again be subject to the exclusive purchasing obligations set forth in Section 4.3 in any two (2) consecutive calendar quarters by the time for delivery of such shipment 2.1, provided in Section 4.5, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL in writing that a quantity of SELECTED REAGENT due for delivery has not been delivered, then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity of SELECTED REAGENT (a “FAILURE”). NEKTAR AL shall, subject to this Section 4.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. 4.6.2 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL Orchid shall have the option right to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT quantities of Product ordered from Third Parties during the CONTRACT MANUFACTURERpendency of the Supply Failure which were placed prior to Orchid’s receipt of Hospira’s notice. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.

Failure to Supply. 4.6.1 If NEKTAR AL cannot During the Initial Term, 454 shall inform FHLR promptly of any problems with Third Party suppliers or problems of 454, in each case with respect to the manufacture or supply at least eighty percent of Licensed Products. (80%a) In the event that 454 is unable, or notifies FHLR that it is unable, for any reason (including Force Majeure) to supply quantities of the amount of SELECTED REAGENT ordered by COMPANY Licensed Products pursuant to confirmed purchase orders in accordance with Section 4.4 3.5, 454 shall inform FHLR promptly. The Joint Steering Committee (through the Operations Steering Committee if active) will develop a plan to address the supply interruption. This may include discussing with supplier(s) the supply of the components of undelivered Licensed Products, arranging alternative sources of supply and/or providing FHLR rights to manufacture components for sale in accordance with the terms of this Agreement. (b) In the event that, during the Initial Term, 454 is unable, or notifies FHLR that it is within unable, for any reason including Force Majeure, to supply a minimum of [************] of the limits binding forecast quantities of Licensed Products to FHLR or its Affiliates as set forth in Section 4.3 3.5, for a total period of [**********], and the Joint Steering_Committee is, despite good faith efforts, unable to reasonably agree on a plan under Section 3.8(a) above to resolve the shortage, 454 shall upon written request of FHLR, grant FHLR or its Affiliates the right to manufacture or have manufactured such Licensed Products and with respect to Instruments and Disposables if in addition the Joint Steering Committee reasonably agrees that by so doing, FHLR or its Affiliates can eliminate the shortage sooner than 454 would be able to so do. In order to enable FHLR or its Affiliates to manufacture or have manufactured such Licensed Product for sale in accordance with the terms of this Agreement, 454 herewith agrees to grant to FHLR and its Affiliates rights under all relevant patents, know-how, or design rights or any two (2) consecutive calendar quarters by other intellectual property rights necessary for the time for delivery manufacturing of such shipment provided Licensed Products for use in Section 4.5, the Field and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL in writing that a quantity of SELECTED REAGENT due for delivery has not been delivered, then NEKTAR AL shall be considered as having failed to provide FHLR or its Affiliates all relevant information to enable FHLR or its Affiliates to manufacture such Licensed Products for sale in accordance with the terms of this Agreement. In the event FHLR or its Affiliates is forced to undertake its own production of such Licensed Products as provided herein, 454 shall furnish FHLR or its Affiliates with all manufacturing instructions (including but not limited to all QC methods, manufacturing environment, SOPs) and know-how necessary for such production and shall supply FHLR or its Affiliates with or give FHLR or its Affiliates access to sell its supplies or its suppliers of raw materials needed for production as well as materials used for controls. FHLR shall pay to COMPANY the relevant quantity 454 a royalty of SELECTED REAGENT (a “FAILURE”). NEKTAR AL shall, subject [************************] with respect to all Licensed Products that are Reagent Kits made by FHLR or its Affiliates pursuant to this Section 4.63.8, work with COMPANY until FHLR or its Affiliates is eligible to elect according to Section 5.1 (c) to manufacture at its own facilities all Licensed Products that are Reagent Kits, at which time the royalty rates in good faith Section 3.4(a) shall apply. FHLR and select a qualified THIRD PARTY contract manufacturer its Affiliates shall lose its right to manufacture Reagent Kits under this Section 3.8(b) within [********] after 454 notifies FHLR (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for following reasonable determination in the duration Joint Steering Committee of such FAILURE. 4.6.2 If capability) that 454 is capable of meeting the binding Forecast before FHLR or its Affiliates makes a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL written request to assume manufacturing responsibility. FHLR and its Affiliates shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it lose its right to manufacture Instruments and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL Disposables under this AGREEMENT Section 3.8(b) once 454 notifies FHLR that 454 is capable of meeting the binding Forecast for the SELECTED REAGENT such Licensed Products. FHLR shall in such event be compensated for its reasonable investments regarding manufacture of Instruments at the time such FAILURE occurreda rate [*************************]. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL shall have the option to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT from the CONTRACT MANUFACTURER. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.

Failure to Supply. 4.6.1 3.6.1 If NEKTAR AL (1) cannot supply at least eighty percent (80%) of the amount of [*] conforming SELECTED REAGENT ordered by COMPANY pursuant to Section 4.4 3.4 that is within the limits set forth in Section 4.3 3.3 in any two (2) consecutive calendar quarters quarter by the time DELIVERY DATE for delivery of such shipment as provided in Section 4.53.5.1, and NEKTAR AL does not cure the deficiency within ninety (90) days [*] after COMPANY so notifies NEKTAR AL notifies COMPANY in writing that all or a quantity portion of the SELECTED REAGENT due for delivery has not been delivered[*] delivered by the DELIVERY DATE, or (ii) NEKTAR AL delivers within a [*] period [*] SELECTED REAGENT that [*] (as determined in accordance with [*] below), then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity portion of the shipment of the SELECTED REAGENT that NEKTAR AL failed to supply (a “"FAILURE”"). . 3.6.2 NEKTAR AL shall, subject to this Section 4.63.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“the "CONTRACT MANUFACTURER”") reasonably acceptable to COMPANY, COMPANY to make such quantity the relevant portion of the SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. Notwithstanding the foregoing, NEKTAR AL agrees to authorize for supply to COMPANY in the event of a FAILURE any manufacturer that NEKTAR AL has authorized to produce or supply a REAGENT for or to another customer of NEKTAR AL, and shall cooperate fully with COMPANY to obtain the needed supplies from such manufacturer. 4.6.2 3.6.3 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.118.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf . If a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If . In the event of a FAILURE occurs for any reasondue to force majeure, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If 3.6.4 This Section 3.6.4 shall apply only if a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 18.1). In addition to the remedies provided for in Sections 3.6.2 and 3.6.3, as soon as practicable, and in any reasonevent within [*] months after NEKTAR AL resumes the manufacture and supply of the SELECTED REAGENT to COMPANY after an event of FAILURE, NEKTAR AL shall manufacture and supply to COMPANY, [*], the SELECTED REAGENT in quantities that are sufficient to replenish COMPANY'S SAFETY STOCK of the SELECTED REAGENT to the same level that existed immediately prior to the commencement of the FAILURE, but only to the extent any of COMPANY'S SAFETY STOCK was used by COMPANY during the period of FAILURE to make or have made the option to elect to transfer manufacturing SELECTED PRODUCT. For the purposes hereof, COMPANY'S SAFETY STOCK means the quantity of SELECTED REAGENT back to that COMPANY has purchased from NEKTAR AL at such time as in order to assure continuity of supply of the SELECTED REAGENT in the event of a FAILURE. The quantity of SELECTED REAGENT that will constitute COMPANY'S SAFETY STOCK shall be established by COMPANY in accordance with its normal practice, but in no event shall it is ready to recommence manufacturing (i.e.be less than the amount required by the FDA. Additionally, NEKTAR AL has corrected any manufacturing issues or force majeure has ceased)agrees to set aside and store at its facility, [*], [*] of methoxy(polyethylene glycol [*]) ("mPEG[*]") for use in which event COMPANY shall no longer purchase any the production of SELECTED REAGENT from for supply to COMPANY in the CONTRACT MANUFACTURERevent of a FAILURE, shortage of SELECTED REAGENT, or NEKTAR AL is otherwise unable to deliver the quantities of the SELECTED REAGENT by the applicable DELIVERY DATE. NEKTAR AL agrees to replace such stored quantities of mPEG[*] with fresh quantities of mPEG[*] on an annual basis. 4.6.6 COMPANY’s sole and exclusive remedy against 3.6.5 Except as expressly provided otherwise in this AGREEMENT, NEKTAR AL, 'S sole liability and the entire liability of NEKTAR AL, COMPANY'S sole remedy for any FAILURE shall be limited to the remedies described in this Section 4.6 3.6 and Section 3.5.2 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.

Failure to Supply. 4.6.1 If If, for any given delivery specified on a purchase order, NEKTAR AL cannot supply at least eighty percent (80%) of the amount of SELECTED REAGENT ordered by COMPANY pursuant to Section 4.4 3.3 that is within the limits set forth in Section 4.3 in any two (2) consecutive calendar quarters 3.2 by the time for delivery of such shipment provided in Section 4.53.4, for any reason including force majeure, then, with regard to such deficiency, within thirty (30) days after such delivery date (or, in the case of a quantity of SELECTED REAGENT that was delivered but breached the warranty in Section 4.2, within sixty (60) days after the date of delivery of such quantity of SELECTED REAGENT, COMPANY so notifies NEKTAR AL in writing of such breach in accordance with Section 5.2), NEKTAR AL shall provide COMPANY a reasonable plan for curing such deficiency, and NEKTAR AL does not shall use commercially reasonable efforts to pursue such plan to cure the deficiency within ninety (90) days after COMPANY so notifies the originally planned delivery date (or, if applicable, the notice from COMPANY). If there is a disagreement as to whether NEKTAR AL is using commercially reasonable efforts to pursue such plan to cure the deficiency within such ninety (90) day period, such disagreement shall be referred to the senior management representatives of each PARTY and, if the senior management representatives of the PARTIES cannot resolve such disagreement within fifteen (15) days after the matter is referred to them, the PARTIES shall refer the matter to final and binding arbitration as provided for in writing that Section 17.9. Subject to Section 17.1, if, in any two (2) calendar quarters within a quantity period of four (4) consecutive calendar quarters, NEKTAR AL cannot supply at least eighty percent (80%) of the amount of SELECTED REAGENT due ordered by COMPANY pursuant to Section 3.3 that complies with the warranty in Section 4.2 and is within the limits set forth in Section 3.2 by the time for delivery has not been deliveredof such shipment provided in Section 3.4, for any reason including force majeure, then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant such quantity of SELECTED REAGENT (a “FAILURE”). At its expense, NEKTAR AL shall, subject to this Section 4.6, : (i) work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (the “CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, COMPANY with whom COMPANY may contract to make such quantity of SELECTED REAGENT that and COMPANY’S and COMPANY’S SUBLICENSEES’ subsequent purchase requirements of SELECTED REAGENT for the manufacturing of SELECTED PRODUCT; (ii) grant a personal, non-assignable, non-exclusive, paid-up and royalty-free right and license under the NEKTAR AL failed LICENSED TECHNOLOGY to supply CONTRACT MANUFACTURER solely to make such SELECTED REAGENT for the duration manufacturing of such FAILURE. 4.6.2 If a FAILURE occurs other than SELECTED PRODUCT for so long as a result of an event of force majeure the CONTRACT MANUFACTURER manufactures SELECTED REAGENT hereunder; and (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW iii) use all commercially reasonable efforts to enable such CONTRACT MANUFACTURER to enable make such SELECTED REAGENT (including providing such CONTRACT MANUFACTURER with personnel and records that are necessary or reasonably useful for such manufacture, but specifically excluding all start-up and other costs incurred by the CONTRACT MANUFACTURER including, without limitation, costs of scale up and process qualification and process validation, and capital expenditures). COMPANY shall ensure that such CONTRACT MANUFACTURER treats CONFIDENTIAL INFORMATION (including, without limitation, the terms and existence of the contract under which it is engaged by COMPANY) in accordance with the provisions of Article 8 hereunder and agrees to assignment of INVENTIONS relating to the manufacture and supply of the SELECTED REAGENT in accordance with the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL shall have the option to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT from the CONTRACT MANUFACTURER. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.provisions of

Failure to Supply. 4.6.1 If NEKTAR AL cannot MTF’s failure to supply at least eighty percent (80%) of the amount Forecast with respect to a particular type of SELECTED REAGENT ordered by COMPANY pursuant SMT shall constitute a failure to Section 4.4 that is within the limits set forth in Section 4.3 in any two (2) consecutive calendar quarters by the time for delivery of such shipment provided in Section 4.5, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL in writing that a quantity of SELECTED REAGENT due for delivery has not been delivered, then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity of SELECTED REAGENT supply condition (a “FAILUREFailure to Supply”). NEKTAR AL shall, subject to this Section 4.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. 4.6.2 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in In the event of a FAILURE. 4.6.3 lf Failure to Supply that lasts for three (3) consecutive months, the Joint Committee shall convene to discuss the events, causes duration and remedies of the Failure to Supply. Notwithstanding the foregoing, there shall be no Failure to Supply with respect to any period for which (a) the Joint Committee determines (i) that the shortfall is not more than twenty percent (20%) more than the decline in the market for similar products for such period, as determined by three independent sources of market analysis (such as, but not limited to, Orthoworld, Inc. (formerly known as Knowledge Enterprises) and BioMed GPS, LLC) (a FAILURE occurs as “Market Decline”), or (ii) that the shortfall for that period is directly attributable to a result change in specifications due to customer preference for the particular type of an SMT (a “Customer Preference Change”) or (b) the failure to supply condition is due to factors outside the reasonable control of MTF. In the event that the Joint Committee determines that the Failure to Supply that has lasted for at least three (3) consecutive months is not due to a Market Decline or a Customer Preference Change or the failure to supply condition is not due to factors outside the reasonable control of force majeureMTF, COMPANY then the Joint Committee shall bear any costs associated with transferring NEKTAR AL KNOW-HOW determine a reasonable plan to cure such CONTRACT MANUFACTURER Failure to enable it Supply and the Parties shall take all reasonable actions directed by the Joint Committee to manufacture effect such actions and supply cure the SELECTED REAGENT in Failure to Supply. In the event of a FAILURE. 4.6.4 If Failure to Supply that lasts for a FAILURE occurs for any reasonminimum of twenty four (24) consecutive months, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at where the price charged by CONTRACT MANUFACTURER for Joint Committee determines that the manufacture and Failure to Supply is not due to a Market Decline or a Customer Preference Change or the failure to supply condition is not due to factors outside the reasonable control of SELECTED REAGENTMTF, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL then CONMED shall have the option right to elect to transfer manufacturing promote or market the particular type of SELECTED REAGENT back to NEKTAR AL at SMT from a third party in the Field in the Territory and such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues promotion or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT from the CONTRACT MANUFACTURER. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE marketing shall not be deemed a breach or default under this Agreement, and CONMED’s portion of the revenue sharing payment shall increase to sixty percent (60%) of the Net Amount billed by MTF to all third party customers for all SMTs. MTF may thereafter cure the Failure to Supply and resume the production and distribution of the particular type of SMT by (i) restoring accumulated shortfalls (net of SMTs supplied by a third party in accordance with this AGREEMENT by NEKTAR AL; Section 6.6) vs. Forecasts for the particular type of SMT subject to the shortfall during the Failure to Supply, and (ii) providing CONMED reasonable assurances of its ability to continue to meet required supply levels (as set forth in each case unless such FAILURE is intentional or willfulthe Forecast), both as soon as practicable following the end of the twelve-month Failure to Supply period. MTF may exercise this cure right no more than once every eight (8) years during the Term.

Failure to Supply. 4.6.1 3.6.1 If NEKTAR AL (1) cannot supply at least eighty percent (80%) of the amount of [*] conforming SELECTED REAGENT ordered by COMPANY pursuant to Section 4.4 3.4 that is within the limits set forth in Section 4.3 3.3 in any two (2) consecutive calendar quarters quarter by the time DELIVERY DATE for delivery of such shipment as provided in Section 4.53.5.1, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL notifies COMPANY in writing that all or a quantity portion of the SELECTED REAGENT due for delivery has not been delivered[*] delivered by the DELIVERY DATE, or (ii) NEKTAR AL delivers within a two (2) year period [*] SELECTED REAGENT that [*] (as determined in accordance with [*] below), then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity portion of the shipment of the SELECTED REAGENT that NEKTAR AL failed to supply (a “"FAILURE”"). . 3.6.2 NEKTAR AL shall, subject to this Section 4.63.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“the "CONTRACT MANUFACTURER”") reasonably acceptable to COMPANY, COMPANY to make such quantity the relevant portion of the SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. Notwithstanding the foregoing, NEKTAR AL agrees to authorize for supply to COMPANY in the event of a FAILURE any manufacturer that NEKTAR AL has authorized to produce or supply a REAGENT for or to another customer of NEKTAR AL, and shall cooperate fully with COMPANY to obtain the needed supplies from such manufacturer. 4.6.2 3.6.3 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.118.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf . If a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If . In the event of a FAILURE occurs for any reasondue to force majeure, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If 3.6.4 This Section 3.6.4 shall apply only if a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 18.1). In addition to the remedies provided for in Sections 3.6.2 and 3.6.3, as soon as practicable, and in any reasonevent within twelve (12) months after NEKTAR AL resumes the manufacture and supply of the SELECTED REAGENT to COMPANY after an event of FAILURE, NEKTAR AL shall manufacture and supply to COMPANY, after an event of FAILURE, NEKTAR AL shall manufacture and supply to COMPANY, [*], the SELECTED REAGENT in quantities that are sufficient to replenish COMPANY'S SAFETY STOCK of the SELECTED REAGENT to the same level that existed immediately prior to the commencement of the FAILURE, but only to the extent any of COMPANY'S SAFETY STOCK was used by COMPANY during the period of FAILURE to make or have made the option to elect to transfer manufacturing SELECTED PRODUCT. For the purposes hereof, COMPANY'S SAFETY STOCK means the quantity of SELECTED REAGENT back to that COMPANY has purchased from NEKTAR AL at such time as in order to assure continuity of supply of the SELECTED REAGENT in the event of a FAILURE. The quantity of SELECTED REAGENT that will constitute COMPANY'S SAFETY STOCK shall be established by COMPANY in accordance with its normal practice, but in no event shall it is ready to recommence manufacturing (i.e.be less than the amount required by the FDA. Additionally, NEKTAR AL has corrected any manufacturing issues or force majeure has ceased)agrees to set aside and store at its facility, [*], [*] of methoxy(polyethylene glycol [*]) ("mPEG[*]") for use in which event COMPANY shall no longer purchase any the production of SELECTED REAGENT from for supply to COMPANY in the CONTRACT MANUFACTURERevent of a FAILURE, shortage of SELECTED REAGENT, or NEKTAR AL is otherwise unable to deliver the quantities of the SELECTED REAGENT by the applicable DELIVERY DATE. NEKTAR AL agrees to replace such stored quantities of mPEG[*] with fresh quantities of mPEG[*] on an annual basis. 4.6.6 COMPANY’s sole and exclusive remedy against 3.6.5 Except as expressly provided otherwise in this AGREEMENT, NEKTAR AL, 'S sole liability and the entire liability of NEKTAR AL, COMPANY'S sole remedy for any FAILURE shall be limited to the remedies described in this Section 4.6 3.6 and Section 3.5.2 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.

Failure to Supply. 4.6.1 If NEKTAR AL cannot supply Hospira fails to deliver or anticipates that it will be unable to deliver at least eighty percent (80%) *** of the quantity of Product ordered pursuant to the terms of this Agreement for ninety (90) or more consecutive days after the delivery date specified in the Firm Order, Hospira will promptly notify Orchid. If Hospira (a) fails to deliver at least *** of the quantity of Product for *** or more consecutive days after the delivery date specified in the Firm Order, or (b) upon request by Orchid, fails to provide adequate assurance of its ability to continue to deliver Product as required by the terms of this Agreement (other than, in each case (a) and (b), as a result of a Force Majeure Event, any material breach of this Agreement by Orchid or its Affiliates, any failure of the equipment, processes or technology transferred to Hospira by Orchid under the Business Transfer Agreement (but only to the extent any failure is not the result of ordinary wear and tear or failure in maintenance by Hospira), or any gross negligence or willful misconduct on the part of Orchid or its Affiliates) (a “Supply Failure”), then as Orchid’s sole remedy, Orchid shall have the right to agree to a revised delivery date or Orchid may: (i) cancel some or all existing purchase orders for Product that are subject to the Supply Failure without penalty and if additionally requested by Orchid, terminate this Agreement with respect to the affected Product; and/or (ii) cancel some or all existing purchase orders for Product that are the subject of the [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. Supply Failure without penalty and purchase (or permit Orchid’s customer to purchase) replacement Product from a Third Party and recover from Hospira the difference in price paid for such replacement Product and the Price that Orchid would have paid to Hospira under this Agreement for the equivalent amount of SELECTED REAGENT ordered by COMPANY Product, together with any incidental damages (collectively, “Cost to Cover Damages”), provided however, that in no event shall Hospira’s liability or Cost to Cover Damages for any canceled purchase order (or portion thereof) exceed a *** over the Price that Orchid would have paid to Hospira under this Agreement for the equivalent amount of Product. Notwithstanding anything contained herein to the contrary, upon Hospira’s provision of notice to Orchid that it is no longer subject to a Supply Failure and is able to recommence supplying Products to Orchid in accordance with this Agreement, Orchid shall have no further rights pursuant to Section 4.4 that is within subsections (i) and (ii) above in connection with the limits applicable Supply Failure, and from the date of such notice from Hospira, Orchid shall once again be subject to the exclusive purchasing obligations set forth in Section 4.3 in any two (2) consecutive calendar quarters by the time for delivery of such shipment 2.1, provided in Section 4.5, and NEKTAR AL does not cure the deficiency within ninety (90) days after COMPANY so notifies NEKTAR AL in writing that a quantity of SELECTED REAGENT due for delivery has not been delivered, then NEKTAR AL shall be considered as having failed to manufacture and to sell to COMPANY the relevant quantity of SELECTED REAGENT (a “FAILURE”). NEKTAR AL shall, subject to this Section 4.6, work with COMPANY in good faith and select a qualified THIRD PARTY contract manufacturer (“CONTRACT MANUFACTURER”) reasonably acceptable to COMPANY, to make such quantity of SELECTED REAGENT that NEKTAR AL failed to supply for the duration of such FAILURE. 4.6.2 If a FAILURE occurs other than as a result of an event of force majeure (as described more fully in Section 20.1), NEKTAR AL shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.3 lf a FAILURE occurs as a result of an event of force majeure, COMPANY shall bear any costs associated with transferring NEKTAR AL KNOW-HOW to such CONTRACT MANUFACTURER to enable it to manufacture and supply the SELECTED REAGENT in the event of a FAILURE. 4.6.4 If a FAILURE occurs for any reason, COMPANY shall pay for SELECTED REAGENT manufactured and supplied by CONTRACT MANUFACTURER at the price charged by CONTRACT MANUFACTURER for the manufacture and supply of SELECTED REAGENT, even if such price is higher than the price that was being charged by NEKTAR AL under this AGREEMENT for the SELECTED REAGENT at the time such FAILURE occurred. 4.6.5 If a FAILURE occurs for any reason, NEKTAR AL Orchid shall have the option right to elect to transfer manufacturing of SELECTED REAGENT back to NEKTAR AL at such time as it is ready to recommence manufacturing (i.e., NEKTAR AL has corrected any manufacturing issues or force majeure has ceased), in which event COMPANY shall no longer purchase any SELECTED REAGENT quantities of Product ordered from Third Parties during the CONTRACT MANUFACTURERpendency of the Supply Failure which were placed prior to Orchid’s receipt of Hospira’s notice. 4.6.6 COMPANY’s sole and exclusive remedy against NEKTAR AL, and the entire liability of NEKTAR AL, for any FAILURE shall be limited to the remedies described in this Section 4.6 above, and a FAILURE shall not be deemed a breach of this AGREEMENT by NEKTAR AL; in each case unless such FAILURE is intentional or willful.