Financial Audit. BII shall keep (and shall cause its Affiliates and Sub-Licensees to keep) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least [***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independent, certified public accountant reasonably acceptable to BII (the “Auditor”) to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the results, will be delivered to BII and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period to discuss the report with the Auditor. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent ([***]%) of the amount due for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceit.
Appears in 2 contracts
Samples: Asset Purchase and License Agreement (Mabvax Therapeutics Holdings, Inc.), Asset Purchase and License Agreement (Mabvax Therapeutics Holdings, Inc.)
Financial Audit. BII Service Provider shall keep maintain accurate and complete records including a physical inventory, if applicable, of all costs incurred and Fees charged under this MSA that may affect all amounts billable and payments made or to be made by ALU and all hours of direct labor employees engaged in work for which payment under this MSA or as specified in Schedule C (Prices) is to be computed on the basis of actual hours worked, at a fixed rate per hour or other unit of time under this MSA. These records shall be maintained in accordance with recognized commercial accounting practices so they may be readily audited and shall cause its Affiliates be held until prices (not to include Service Provider cost data) have been finally determined under this MSA and Subpayment or final adjustment of payment, as the case may be, has been made. Service Provider shall permit ALU and/or ALU’s representative to examine and audit these records and all supporting records at all reasonable times. Audits shall be made not later than three (3) calendar year(s) after the (a) sixtieth (60th) day following completion of Services rendered or (b) three (3) calendar year(s) after the expiration or termination date of this MSA, whichever is later. If an audit reveals over-Licensees to keepbilling on the part of Service Provider, Service Provider shall promptly reimburse ALU for such over-billing. If an audit reveals under-billing on the part of Service Provider, Service Provider shall promptly invoice ALU for such under-billing. Service Provider shall be responsible for the cost of any audit that reveals a pattern of over-billing by Service Provider. THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reportedPURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, for at least [AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independent, certified public accountant reasonably acceptable to BII (the “Auditor”) to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period”. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the results, will be delivered to BII and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period to discuss the report with the Auditor. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent ([***]%) of the amount due for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceit.MASTER SERVICES AGREEMENT TERMS AND CONDITIONS
Appears in 2 contracts
Samples: Master Services Agreement (Goodman Networks Inc), Master Services Agreement (Goodman Networks Inc)
Financial Audit. BII During the Term, Lexicon will permit Symphony Icon’s representatives (such representatives (i) to be identified by Symphony Icon in advance and reasonably acceptable to Lexicon and (ii) to enter into a confidentiality agreement with Lexicon), to verify Lexicon’s invoices, other receipts, and FTE records that are related to Lexicon’s performance of the work under the Programs (“Financial Audits”), which review shall keep (be conducted during regular business hours and will take place no more than once per year, unless otherwise agreed to by the Parties. Symphony Icon shall cause give Lexicon reasonable advance notice of such Financial Audits specifying the scope of the audit, which shall not include work that has previously undergone Financial Audits. Symphony Icon shall reimburse Lexicon for its Affiliates time associated with Financial Audits; provided, however, that should a particular Financial Audit reveal an overstatement of costs and Sub-Licensees expenses in the reports submitted by Lexicon to keep) complete and accurate records pertaining to Symphony Icon for reimbursement purposes during the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least period covered by such Financial Audit that exceeds [***] full Calendar Years following in the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independentaggregate, certified public accountant reasonably acceptable to BII (the “Auditor”) to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the results, then Lexicon will be delivered to BII responsible for all costs of such Financial Audit, including Symphony Icon’s reasonable costs associated therewith. Symphony Icon and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period Lexicon shall meet to discuss the report with results of the AuditorFinancial Audit and, if required, jointly agree upon any actions that will be required as a result of such Financial Audit including defining material discrepancies to be addressed. Lexicon shall make commercially reasonable efforts to reconcile all such discrepancies found by Symphony Icon during such Financial Audit. In addition, Lexicon shall, during regular business hours, cooperate with, and promptly respond to, inquiries from the event Symphony Icon Auditors, if the Parties are not in alignment after such [***] Business Day periodSymphony Icon Auditors shall reasonably conclude that they require additional information or clarification regarding any invoices, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment other receipts or FTE records submitted by BII of more than [***] percent ([***]%) of the amount due for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceitLexicon.
Appears in 1 contract
Samples: Research and Development Agreement (Lexicon Pharmaceuticals, Inc./De)
Financial Audit. BII shall keep During the Term, the Company will permit the Symphony Collaboration’s representatives (such representatives (i) to be identified by the Symphony Collaboration in advance and shall cause its Affiliates and Sub-Licensees to keep) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least [***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independent, certified public accountant reasonably acceptable to BII the Company and (the “Auditor”ii) to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for enter into a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII the Company), to verify the Company’s invoices, other receipts, and FTE records that are related to the Company’s performance of the work under the Programs (“Financial Audits”), which review shall be conducted during regular business hours and will disclose take place no more than once per year, unless otherwise agreed to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreementby the Parties. The report Symphony Collaboration shall give the Company reasonable advance notice of such Financial Audits specifying the scope of the Auditor will audit, which shall not include work that has previously undergone Financial Audits. The Symphony Collaboration shall reimburse the methodology Company for its time associated with Financial Audits; provided, however, that should a particular Financial Audit reveal an overstatement of costs and calculations used expenses in the reports submitted by the Company to determine the resultsSymphony Collaboration for reimbursement purposes during the period covered by such Financial Audit that exceeds [ * ]% in the aggregate, then the Company will be delivered to BII responsible for all costs of such Financial Audit, including the Symphony Collaboration’s reasonable costs associated therewith. The Symphony Collaboration and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period Company shall meet to discuss the report with results of the AuditorFinancial Audit and, if required, jointly agree upon any actions that will be required as a result of such Financial Audit including defining material discrepancies to be addressed. The Company shall make commercially reasonable efforts to reconcile all such discrepancies found by the Symphony Collaboration during such Financial Audit. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent ([***]%) of the amount due for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Yearaddition, the calculation of Earn-Out Payment payments with respect to such Calendar Year Company shall, during regular business hours, cooperate with, and promptly respond to, inquiries from the Symphony Collaboration Auditors, if the Symphony Collaboration Auditors shall be binding and BII shall be released from reasonably conclude that they require additional information or clarification regarding any liability and obligation with respect to payments for such year except in invoices, other receipts or FTE records submitted by the case of fraud or willful deceitCompany.
Appears in 1 contract
Financial Audit. BII shall keep (and shall cause its Affiliates and Sub-Licensees to keepa) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least [***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have Micron reserves the right to cause an independent, certified public accountant reasonably acceptable have the Joint Venture Company’s books and records related to BII (Pricing of the “Auditor”) Conforming Wafers delivered to audit such records solely to confirm Net Sales, Milestone Payments Micron during both the then current Fiscal Year and Earn-Out Payments for a period covering the prior Fiscal Year inspected and audited not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year during any Fiscal Year to ensure compliance with Schedule 4.9. Such audit shall be performed, at Micron’s expense, by an independent Third Party auditor acceptable to both Micron and only the Joint Venture Company. Micron shall provide [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior days advance written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose the Joint Venture Company of its desire to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the results, will be delivered to BII and MabVax Therapeutics Holdings Inc. at the same timeinitiate an audit, and will the audit shall be final [***] Business Days after delivery to both Partiesscheduled so that it does not adversely impact or interrupt the Joint Venture Company’s business operations. If the audit reveals any material discrepancies, it being understood that BII will have Micron or the right during such [***] Business Day period to discuss Joint Venture Company shall reimburse the report with the Auditor. In the event the Parties are not in alignment after such [***] Business Day periodother, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent ([***]%) of the amount due as applicable, for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. material discrepancies within [***] days after delivery completion of the audit. The nature and extent of the discrepancies identified by the audit shall be reported to Micron and the Joint Venture Company. Notwithstanding the foregoing, auditor reports shall not disclose pricing, or terms of purchase, for any purchases of materials or equipment by the Joint Venture Company, absent written agreement from the respective legal counsel of Micron and the Joint Venture Company. If any audit reveals a material discrepancy requiring a payment by the Joint Venture Company, Micron may increase the frequency of such audits to [***] for the [***] month period. If any such audit reveals any discrepancy, the Joint Venture Company shall notify NTC of (i) the existence of such discrepancy, (ii) whether such discrepancy was found in the computation of the [***], and (iii) the aggregate amount of the discrepancy by category ([***]). Notwithstanding the foregoing, the Joint Venture Company shall not disclose any Pricing information to NTC to the Parties of the final Auditor’s report. If extent such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have disclosure would violate Applicable Law.
(b) NTC reserves the right to offset have the overpayment against Joint Venture Company’s books and records related to Pricing of the actual Earn-Out Payment following Conforming Wafers delivered to NTC during both the then current Fiscal Year and the prior Fiscal Year inspected and audited not more than [***] during any Fiscal Year to ensure compliance with Schedule 4.9. Such audit shall be performed, at NTC’s expense, by an independent Third Party auditor acceptable to both NTC and the Joint Venture Company. NTC shall provide [***] days advance written notice to the Joint Venture Company of its desire to initiate an audit, and the audit shall be scheduled so that it does not adversely impact or interrupt the Joint Venture Company’s business operations. If the audit reveals any material discrepancies, NTC or the Joint Venture Company shall reimburse the other, as applicable, for any material discrepancies within [***] days after completion of the audit. The nature and extent of the discrepancies identified by the audit shall be reported to NTC and the Joint Venture Company. Notwithstanding the foregoing, auditor reports shall not disclose pricing, or terms of purchase, for any purchases of materials or equipment by the Joint Venture Company, absent written agreement from the respective legal counsel of NTC and the Joint Venture Company. If any audit reveals a material discrepancy requiring a payment by the Joint Venture Company, NTC may increase the frequency of such audits to [***] for the [***] month period. If any such audit reveals any discrepancy, the Joint Venture Company shall notify Micron of (i) the existence of such discrepancy, (ii) whether such discrepancy was found in questionthe computation of the [***], and (iii) the aggregate amount of the discrepancy by category (i.e., [***]). Upon Notwithstanding the expiration foregoing, the Joint Venture Company shall not disclose any Pricing information to Micron to the extent such disclosure would violate Applicable Law.
(c) The Joint Venture Company reserves the right to have a Purchaser’s (the “Audited Purchaser’s”) books and records related to the Audited Purchaser’s Pricing Report for both the then current Fiscal Year and the prior Fiscal Year inspected and audited not more than [***] during any Fiscal Year to ensure compliance with Schedule 4.9. Such audit shall be performed, at the Joint Venture Company’s expense, by an independent Third Party auditor acceptable to both the Joint Venture Company and the Audited Purchaser. The Joint Venture Company shall provide [***] days advance written notice to the Audited Purchaser of its desire to initiate an audit, and the audit shall be scheduled so that it does not adversely impact or interrupt the Audited Purchaser’s business operations. If the audit reveals any material discrepancies, the Audited Purchaser or the Joint Venture Company shall reimburse the other, as applicable, for any material discrepancies within [***] days after completion of the audit. The nature and extent of the discrepancies identified by the audit shall be reported to the Audited Purchaser and the Joint Venture Company. Notwithstanding the foregoing, auditor reports shall not disclose (i) pricing, or terms of purchase, for any purchases of materials or equipment by the Audited Purchaser, (ii) the back end component and module assembly, packaging and testing costs of the Audited Purchaser, or (iii) the terms of sales of DRAM Products by the Audited Purchaser, absent written agreement from the respective legal counsel of the Audited Purchaser and the Joint Venture Company. If any audit reveals a material discrepancy requiring a payment by the Audited Purchaser, the Joint Venture Company may increase the frequency of such audits to [***] for the subsequent [***]. If any such audit reveals any discrepancy, the Joint Venture Company shall notify the Purchaser that is not the Audited Purchaser of (i) the existence of such discrepancy, (ii) whether such discrepancy was found in the computation of [***] full Calendar Years following ], and (iii) the end aggregate amount of any Calendar Yearthe discrepancy by category (i.e., [***]). Notwithstanding the foregoing, the calculation of Earn-Out Payment payments Joint Venture Company shall not disclose any Pricing information to the Purchaser that is not the Audited Purchaser to the extent such disclosure would violate Applicable Law. (d) Pricing information as to which audit rights under this Section 5.3 have expired shall be deemed final and conclusive for all purposes (absent fraud or willful misconduct), except to the extent that (i) an audit with respect thereto has been commenced under this Section 5.3 prior to such expiration and (ii) the process under this Section 5.3 has not been fully completed with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceitaudit.
Appears in 1 contract
Financial Audit. BII shall keep During the Term, Alexza will permit Symphony Allegro’s representatives (such representatives to be identified by Symphony Allegro in advance and shall cause its Affiliates and Sub-Licensees to keep) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least [***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independent, certified public accountant reasonably acceptable to BII (the “Auditor”) Alexza and to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for enter into a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII Alexza), to verify Alexza’s invoices, other receipts, and FTE records that are related to Alexza’s performance of the work under the Programs (“Financial Audits”), which review shall be conducted during regular business hours and will disclose take place no more than once per year, unless otherwise agreed to MabVax Therapeutics Holdings Inc. only by the Parties. Symphony Allegro shall give Alexza reasonable advance notice of such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report Financial Audits specifying the scope of the Auditor will audit, which shall not include work that has previously undergone Financial Audits. Symphony Allegro shall reimburse Alexza for its time associated with Financial Audits; provided, however, that should a particular Financial Audit reveal an aggregate variance of more than [ * ] between such financial records and the methodology and calculations used reports submitted by Alexza to determine Symphony Allegro for reimbursement purposes during the resultsperiod covered by such Financial Audit, then Alexza will be delivered to BII responsible for all costs of such Financial Audit, including Symphony Allegro’s reasonable costs associated therewith. Symphony Allegro and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period Alexza shall meet to discuss the report results of the Financial Audit and, if required, jointly agree upon any actions that will be required as a result of such Financial Audit including defining material discrepancies to be addressed. Alexza shall make commercially reasonable efforts to reconcile all such discrepancies found by Symphony Allegro during such Financial Audit. In addition, Alexza shall, during regular business hours, cooperate with, and promptly respond to, inquiries from the Symphony Allegro Auditors, if the Symphony Allegro Auditors shall [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Auditor. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report Securities and Exchange Commission pursuant to Rule 24b-2 of the Auditor discloses an underpayment by BII Securities Exchange Act of more than [***] percent ([***]%) of the amount due for any Calendar Year1934, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceitas amended.
Appears in 1 contract
Samples: Research and Development Agreement (Alexza Pharmaceuticals Inc.)
Financial Audit. BII shall keep (and shall cause its Affiliates and Sub-Licensees to keep) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reported, for at least On [***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall days prior written notice, each Party (“Auditing Party”) will have the right to cause have an independent, independent certified public accountant reasonably acceptable to BII inspect the financial records of the other Party and its Affiliates (the “AuditorAudited Party”) relating to the records of the Audited Party required to be kept pursuant to Section 7.10 (Financial Records and Calculations). Each such audit such records solely to confirm must be conducted during usual business hours, at a time and a place mutually agreed to, for the sole purpose of verifying the completeness and accuracy of Net SalesSales and royalties due under this Agreement or the Partner License Agreement, Milestone Payments and Earn-Out Payments as applicable, for a the period covering not more than the preceding of time [***] full Calendar Years, provided that such audits years preceding the date of the notice. The notice must identify the period of time subject to inspection. Records from a period of time already subject to an inspection pursuant to this Section 7.11 (Financial Audit) may not be performed more inspected again. Such accountant must have agreed in writing to maintain the confidentiality of all information learned in confidence, except as necessary to disclose any discrepancy to the Parties. The Auditing Party will pay for each such inspection and audit, unless such inspection and audit discloses for the period examined that there is an underpayment to the Auditing Party (or in the event INCY is the Audited Party, an overpayment to the Audited Party pursuant to Section 7.9 (Royalty Reports and Royalty Payments)) of greater than [***] a year and only [***] per audited period. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the resultsCERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, will be delivered to BII and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period to discuss the report with the Auditor. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent (MARKED WITH [***]%, HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. of the amount amounts actually due for in any given Calendar Year, in which case BII shall bear the full Audited Party will be responsible for the payment of the reasonable cost of such inspection and audit. BII shall The Auditing Party and its independent accounting firm agree that all information concerning such payments and reports will be Confidential Information of the Audited Party, as provided for in this Agreement. The Audited Party will pay to the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. Auditing Party within [***] days after delivery to the Parties following its receipt of the final Auditor’s reportreport any underpayment (or in the event such Audited Party is INCY, any overpayment) identified pursuant to this Section 7.11 (Financial Audit). If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit The Auditing Party may not conduct inspections or audits more often than once in question. Upon the expiration of any [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceitmonth period.
Appears in 1 contract
Financial Audit. BII Service Provider shall keep maintain accurate and complete records including a physical inventory, if applicable, of all costs incurred and Fees charged under this MSA that may affect all amounts billable and payments made or to be made by ALU and all hours of direct labor employees engaged in work for which payment under this MSA or as specified in Schedule C (Prices) is to be computed on the basis of actual hours worked, at a fixed rate per hour or other unit of time under this MSA. These records shall be maintained in accordance with recognized commercial accounting practices so they may be readily audited and shall cause its Affiliates be held until prices (not to include Service Provider cost data) have been finally determined under this MSA and Subpayment or final adjustment of payment, as the case may be, has been made. Service Provider shall permit ALU and/or ALU’s representative to examine and audit these records and all supporting records at all reasonable times. Audits shall be made not later than three (3) calendar year(s) after the (a) sixtieth (60th) day following completion of Services rendered or (b) three (3) calendar year(s) after the expiration or termination date of this MSA, whichever is later. If an audit reveals over-Licensees to keepbilling on the part of Service Provider, Service Provider shall promptly reimburse ALU for such over-billing. If an audit reveals under-billing on the part of Service Provider, Service Provider shall promptly invoice ALU for such under-billing. Service Provider shall be responsible for the cost of any audit that reveals a pattern of over-billing by Service Provider. THE COMPANY HAS REQUESTED AN ORDER FROM THE SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) complete and accurate records pertaining to the sale or other disposition of BII Products in sufficient detail to permit BII to confirm the accuracy of all Earn-Out Payment payments reportedPURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, for at least [AS AMENDED, GRANTING CONFIDENTIAL TREATMENT TO SELECTED PORTIONS. ACCORDINGLY, THE CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THIS EXHIBIT, AND HAVE BEEN FILED SEPARATELY WITH THE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS EXHIBIT WITH “***] full Calendar Years following the end of the Calendar Year to which they pertain. MabVax Therapeutics Holdings Inc. shall have the right to cause an independent, certified public accountant reasonably acceptable to BII (the “Auditor”) to audit such records solely to confirm Net Sales, Milestone Payments and Earn-Out Payments for a period covering not more than the preceding [***] full Calendar Years, provided that such audits may not be performed more than [***] a year and only [***] per audited period”. Such audits may be exercised during normal business hours upon reasonable prior written notice to BII. The Auditor will execute a reasonable written confidentiality agreement with BII and will disclose to MabVax Therapeutics Holdings Inc. only such information as is reasonably necessary to provide MabVax Therapeutics Holdings Inc. with information regarding any actual or potential discrepancies between amounts reported and actually paid and amounts payable under this Agreement. The report of the Auditor will include the methodology and calculations used to determine the results, will be delivered to BII and MabVax Therapeutics Holdings Inc. at the same time, and will be final [***] Business Days after delivery to both Parties, it being understood that BII will have the right during such [***] Business Day period to discuss the report with the Auditor. In the event the Parties are not in alignment after such [***] Business Day period, either Party may refer this matter for resolution in accordance with the defined dispute resolution procedure set forth in Article 13 within [***] Business Days. MabVax Therapeutics Holdings Inc. shall bear the full cost of such audit unless the report of the Auditor discloses an underpayment by BII of more than [***] percent ([***]%) of the amount due for any Calendar Year, in which case BII shall bear the full cost of such audit. BII shall pay the amount of any underpayment disclosed in the undisputed Auditor’s report, together with interest thereon to MabVax Therapeutics Holdings Inc. within [***] days after delivery to the Parties of the final Auditor’s report. If such final Auditor’s report discloses an overpayment by BII of the amounts payable hereunder, BII shall have the right to offset the overpayment against the actual Earn-Out Payment following the audit in question. Upon the expiration of [***] full Calendar Years following the end of any Calendar Year, the calculation of Earn-Out Payment payments with respect to such Calendar Year shall be binding and BII shall be released from any liability and obligation with respect to payments for such year except in the case of fraud or willful deceit.MASTER SERVICES AGREEMENT TERMS AND CONDITIONS
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