Common use of Forecasts and Orders Clause in Contracts

Forecasts and Orders. (a) Rodel will provide Nanophase with a rolling eighteen-month forecast of the volume of its Particle requirements at the start of each calendar quarter. The first three months of this forecast shall be firm and accompanied by a purchase order for such forecast. Unless otherwise agreed, Nanophase need not manufacture more than [ * * * ] of the forecasted six-month volume in any single month period. * * * Confidential Portions Omitted and Filed Separately with the Commission (b) Rodel will give Nanophase six months prior written notice before Nanophase will be obliged to either (i) have installed capacity or manufacture over [ * * * ] of Particles per annum, or (ii) increase production by more than [ * * * ] kilograms of Particles over the production for the previous six-month period. Provided that Nanophase is given such six-month notice, it will be obliged to manufacture up to [ * * * ] kilograms of Particles in the first year of this Agreement. (c) If Rodel requests that Nanophase commit to manufacture an amount of Particles in excess of [ * * * ] kilograms per annum, the parties will negotiate in good faith a mutually acceptable arrangement for payment of the capital expenditures required in order for Nanophase to manufacture such increased amount. Any failure of Rodel or Nanophase to agree upon such a mutually acceptable arrangement following good faith negotiations shall not constitute either (i) an unwillingness by Nanophase to supply Rodel with Particles under Section 8(a) of this Agreement, or (ii) a breach of any party's obligations under the Agreement. (d) Rodel will submit written purchase orders to Nanophase giving reasonable notice which may not be less than three weeks prior to the requested date of shipment and specifying the required quantities, shipment dates, destinations and other relevant information, and Nanophase will use commercially reasonable efforts to fill the orders (including using reasonable commercial efforts to fill orders for which Rodel may be unable to provide a full three weeks' notice) so that Rodel may meet its delivery commitments to its customers. (e) Other provisions applicable to the purchase and sale of the Particles shall be as provided in Rodel's standard terms and conditions of sale, to the extent not inconsistent with this Agreement. * * * Confidential Portions Omitted and Filed Separately with the Commission

Forecasts and Orders. 7.1 On or before **** of each year (a) Rodel will provide Nanophase with a rolling eighteenexcept as otherwise mutually agreed), Alpharma shall submit to Purepac in writing Alpharma's non-month forecast of the volume binding estimate of its Particle requirements desired quantity of production of morphine coated pellets for use in the Products for the next Calendar Year (the "Annual Forecast Quantity"). 7.2 Upon the Effective Date and thereafter at least **** prior to the start beginning of each calendar quarter. The first three months of this forecast , Alpharma shall be submit to Purepac in writing: 7.2.1 Alpharma's firm and accompanied binding forecast, specifying the quantity (by individual SKU) of Product Alpharma wishes to be available for delivery during the upcoming quarter, together with any instructions for special packaging (the "Quarterly Delivery Forecast") Alpharma's firm and binding Quarterly Delivery Forecast for the upcoming quarter shall represent the minimum quantity that Alpharma agrees to purchase during that quarter. At least **** prior to the beginning of a calendar quarter, Alpharma may, at its option, increase its Quarterly Delivery Forecast for said quarter by placing a written purchase order for an increased amount; provided however that, while Purepac shall use its reasonable efforts to fulfill any such increased order it shall not be obligated to supply an increased order to the extent it exceeds an additional **** percent (****%) of the original Quarterly Delivery Forecast. 7.2.2 Forecasts for each of the **** calendar quarters immediately following the quarter for which a purchase order must be submitted (by SKU) concurrent with the delivery of said Quarterly Delivery Forecast. It is understood that such forecasts constitute an estimate of the future requirements of Alpharma and do not comprise a binding commitment of Alpharma. Alpharma shall use its reasonable commercial endeavors to provide Purepac with accurate forecasts. 7.2.3 All Products shall be purchased by way of submission of purchase orders by Alpharma. Alpharma shall submit a binding purchase order for such forecast. Unless otherwise agreedProducts conforming with the Quarterly Delivery Forecast, Nanophase need and setting forth requested delivery dates (which shall not manufacture require that any more than [ **** * * ] percent (****%) of the forecasted six-month volume Quarterly Delivery Forecast, adjusted as permitted herein, be delivered in any single month periodmonth) at least **** prior to the commencement of said calendar quarter. A purchase order will represent a firm commitment by Alpharma to purchase the Products included thereon. Purepac shall accept any purchase order which is ****-percent (****%) or less of Alpharma's Quarterly Delivery Forecast. Within **** * * Confidential Portions Omitted of receipt of a purchase order, Purepac shall advise Alpharma whether it is able to fulfill the order and Filed Separately with the Commissiondate of shipment; provided that it shall have no right to object to the quantity or delivery dates requested by Alpharma to the extent such request is within the scope permitted by this Section 7.2. In case Purepac has not replied within the stated time limit, Purepac shall be deemed to have accepted the order as placed. (b) Rodel will give Nanophase six months prior written notice before Nanophase will be obliged 7.3 Purepac shall advise Alpharma promptly of any event or circumstance that may make Purepac unable to either (i) have installed capacity or manufacture over [ * * * ] deliver the Product as contemplated by this Agreement. A failure by Alpharma to purchase the Product provided for in any purchase order which Purepac is unable to deliver shall not constitute a breach by Alpharma of Particles per annum, or (ii) increase production by more than [ * * * ] kilograms of Particles over the production for the previous six-month period. Provided that Nanophase is given such six-month notice, it will be obliged to manufacture up to [ * * * ] kilograms of Particles in the first year any term of this Agreement. (c) If Rodel requests that Nanophase commit to manufacture an amount of Particles 7.4 Purchase orders shall be placed at least **** in excess of [ * * * ] kilograms per annum, the parties will negotiate in good faith a mutually acceptable arrangement for payment advance of the capital expenditures required in order for Nanophase to manufacture such increased amount. Any failure of Rodel or Nanophase to agree upon such a mutually acceptable arrangement following good faith negotiations shall not constitute either (i) an unwillingness by Nanophase to supply Rodel with Particles under Section 8(a) of this Agreement, or (ii) a breach of any party's obligations under the Agreementrequested delivery date. (d) Rodel will submit written purchase orders to Nanophase giving reasonable notice which may not be less than three weeks prior to the requested date of shipment and specifying the required quantities, shipment dates, destinations and other relevant information, and Nanophase will use commercially reasonable efforts to fill the orders (including using reasonable commercial efforts to fill orders for which Rodel may be unable to provide a full three weeks' notice) so that Rodel may meet its delivery commitments to its customers. (e) Other provisions applicable to the purchase and sale of the Particles shall be as provided in Rodel's standard 7.5 The terms and conditions of sale, this Agreement shall prevail if the terms and conditions stated in Alpharma's purchase order or in Purepac's purchase order confirmations or in any other communication of the Parties relating to the extent not any purchase order are inconsistent with these terms and conditions. 7.6 If a shipment from Purepac is delayed more than **** for any reason and the delay causes any shortage of supply to Alpharma's customers, then, without prejudice to Alpharma's other rights and remedies with respect to such failure under this Agreement. * * * Confidential Portions Omitted , and/or at law or in equity, Purepac shall air freight, at its own cost, Product directly to any and Filed Separately all such customers. 7.7 If either Party determines that any of the various time frame requirements found within Sections 7.1 through 7.6 herein materially affect their abilities to perform their respective obligations pursuant to this Agreement, the Parties agree to enter into good faith negotiations with the Commissionintent to alter such timing requirements in the best interests of the Parties.

Forecasts and Orders. 3.1 Forecasting and ordering of Product(s) under this Agreement shall be conducted: (aA) Rodel will provide Nanophase with on a rolling eighteen-month forecast pull Manufacturing basis in respect of the volume Products as set out in clauses 3.2 and 3.4; or (B) on a Toll Manufacturing Basis in respect of its Particle requirements at Products that are Tolled Products as set out in clause 5 (Toll Manufacture) and Exhibit 7 (Toll Manufacturing Provisions), and (C) on the start fifth (5th) Business Day of each calendar quartermonth commencing not later than the calendar month following the calendar month in which the Effective Date falls (or at such other dates as may be agreed between the Parties), the Purchaser shall provide to the Supplier a rolling demand forecast schedule (in such physical written format (as opposed to a data exchange) exchangeable by email as is agreed by the Parties) which shall align with the applicable Gating Plan for that Gating Year and comprise a good faith estimate of its anticipated aggregate monthly requirements for Products for at least the following twenty-four (24) months or, in each case, such shorter period remaining under the Term (including any proposed extension thereof), in accordance with clause 3.2 ( the “Forecast Schedule”). (A) Manufacturing and supply of Products under this Agreement shall be pursuant to the Forecast Schedules and to the Firm Orders submitted by the Purchaser, as further described in this clause 3.2. (B) The initial Forecast Schedule is attached to this Agreement at Exhibit 14 (Initial Product Forecast Schedule) and the Parties agree that the Purchaser and the Supplier shall be bound by the volumes of Products shown in the Firm Zone of such initial Forecast Schedule as at the Effective Date. The first three months initial Forecast Schedule shall reflect the migration of all orders that are in progress immediately prior to the Effective Date. (C) Provided that the volumes of Products shown in the Firm Zone of each Forecast Schedule align with the requirements of the Gating Plan in respect of such Products, such volumes shall be deemed to be firm orders binding on the Purchaser and the Supplier, and the quantities included for each Product in any Firm Zone may not be varied in any subsequent Forecast Schedule unless the Supplier agrees in writing (each such firm order being a “Firm Order”). Each Firm Order shall be for not less than the Minimum Order Quantity of Product and, if greater than the Minimum Order Quantity, shall be for the Minimum Order Quantity plus one or more multiples of the Minimum Order Quantity. If the volumes specified in the Firm Order do not comply with this requirement then such variation to such volumes must be agreed between the Parties as part of the Firm Order confirmation process set out at 3.2(E). (D) The Purchaser shall submit each Forecast Schedule either electronically or by such other means that the Manufacturing and Supply Team shall determine and to such location as reasonably requested by the Supplier in writing. No oral communications shall comprise a commitment to supply. Each Firm Order shall specify the volumes of Product required and the Purchaser’s requested Delivery date in accordance with the applicable Lead Time requirements as set out in Exhibit 1 (Products). (E) The Supplier shall respond to each Firm Order that complies with the requirements of this forecast clause 3.2 (including the applicable Gating Plan): (i) within two (2) Business Days of receipt (or such other date as agreed between the Parties) to acknowledge receipt of the Firm Order; and (ii) within ten (10) Business Days of receipt (or such other date as agreed between the Parties) to confirm the applicable order Delivery date and the volumes of Product required. In the event that the Supplier fails to respond to any Firm Order within ten (10) Business Days after acknowledging it, the Supplier shall be firm deemed to have acknowledged and accompanied by a purchase order for such forecastaccepted that Firm Order. Unless otherwise agreedagreed by the Parties, Nanophase need not manufacture more than [ * * * ] of the forecasted six-month volume in any single month period. * * * Confidential Portions Omitted and Filed Separately with the Commission (b) Rodel will give Nanophase six months prior written notice before Nanophase will Supplier shall be obliged to either acknowledge Firm Orders which comply with the requirements of this clause 3.2 without proposed amendments. The response (ior deemed response) have installed capacity will include confirmation of the Delivery date. To the extent that the Supplier proposes an amendment to the Firm Order, the Purchaser shall respond to any proposed amendments to the Firm Order within ten (10) Business Days confirming whether it accepts or manufacture over [ * * * ] of Particles per annumrejects such proposed amendments. If the Purchaser: (iii) accepts such amendments, or the Firm Order together with the relevant amendments shall be deemed to be acknowledged and accepted by the Supplier and shall be binding on both Parties; or (iiiv) increase production by rejects such proposed amendments; the Parties will discuss the proposed amendments in good faith as promptly as practicable, but not more than [ * * * ] kilograms of Particles over five (5) Business Days following such rejection. The Parties agree that if the production Parties cannot agree an amendment to the Firm Order pursuant to this clause 3.2(E) that the Firm Order initially submitted without the suggested amendments shall be binding on the Parties to the extent it is in accordance with this clause 3.2 and the applicable Gating Plan, provided that the Supplier may refer the matter for resolution in accordance with clause 16 (Dispute Escalation), in which case such matter shall be determined in accordance with clause 16 (Dispute Escalation). (F) The Purchaser, either electronically or by such other means determined by the Manufacturing and Supply Team, shall deliver to the Supplier purchase orders corresponding to the Product volumes shown in the Firm Orders to such location as reasonably requested by the Supplier in writing. The purchase order shall be in such form as is mutually agreed by the Manufacturing and Supply Team and shall specify the Product(s) and country(ies) to which it relates; have assigned to it a number which shall be used by the Parties in all correspondence relating thereto and shall be submitted in accordance with the Lead Times set out in Exhibit 1 (Products) and the applicable Firm Zone for the previous six-month period. Provided Product(s) shown in each Firm Order so that Nanophase the Supplier may process the Firm Orders. (G) The Supplier will supply Product in accordance with Firm Orders that comply with this clause 3.2 and the applicable Gating Plan and for which the Supplier receives purchase orders in accordance with clause 3.2(F), unless such requirements are changed in accordance with clause 3.2(H) or clause 3.2(I). (H) Without prejudice to the Parties’ obligations with respect to the Firm Zone of any Forecast Schedule, if discussion of the relevant requirements of a Firm Order is given such six-month noticerequested by the Supplier, it then the relevant planning personnel from both Parties will be obliged discuss in good faith, provided that the Supplier shall have no obligation to manufacture up to [ * * * ] kilograms of Particles agree any production schedule or Delivery timetable which would exceed the applicable Gating Volumes for the relevant Product as set out in the first year Gating Plan for that Gating Year. (I) The Purchaser and the Supplier shall each establish a single point of ordering and forecasting in respect of Products for the purposes of carrying out its obligations under this clause 3.2, subject to any agreed delegation of supply and/or invoicing and/or payment to Nominated Suppliers or other Affiliates of a Party in accordance with this Agreement. (c) If Rodel requests that Nanophase commit to manufacture an amount of Particles in excess of [ * * * ] kilograms per annum, the parties will negotiate in good faith a mutually acceptable arrangement for payment of the capital expenditures required in order for Nanophase to manufacture such increased amount. Any failure of Rodel or Nanophase to agree upon such a mutually acceptable arrangement following good faith negotiations shall not constitute either (i) an unwillingness by Nanophase to supply Rodel with Particles under Section 8(a) of this Agreement, or (ii) a breach of any party's obligations under the Agreement. (d) Rodel will submit written purchase orders to Nanophase giving reasonable notice which may not be less than three weeks prior to the requested date of shipment and specifying the required quantities, shipment dates, destinations and other relevant information, and Nanophase will use commercially reasonable efforts to fill the orders (including using reasonable commercial efforts to fill orders for which Rodel may be unable to provide a full three weeks' notice) so that Rodel may meet its delivery commitments to its customers. (e) Other provisions applicable to the purchase and sale of the Particles shall be as provided in Rodel's standard terms and conditions of sale, to the extent not inconsistent with this Agreement. * * * Confidential Portions Omitted and Filed Separately with the Commission

Forecasts and Orders. 4.1 In order that GENSIA SICOR may properly and economically forecast procurement planning with respect to the Product, PURCHASER shall, commencing with the [ * ] immediately following approval of a Cyclosporine Formulation of PURCHASER, submit to GENSIA SICOR within [ * ] business days after the beginning of such [ * ] and ---------------------- * Confidential Treatment Requested; confidential portion has been filed separately with the SEC. 4.1.1 A Firm Order may not be canceled, and, following performance by GENSIA SICOR (afor itself and through SICOR, as appropriate) Rodel will provide Nanophase with a rolling eighteen-month forecast of the volume of its Particle requirements at obligations hereunder with respect to such order, PURCHASER shall be obligated to pay the start price for said order as provided in Article 5 hereof. The total amount of each calendar quarter. The first three months of this forecast shall be firm and accompanied Product ordered by a purchase order PURCHASER for such forecast. Unless otherwise agreed, Nanophase need not manufacture more than delivery in any [ * * * ] of the forecasted six-month volume in any single month period. * * * Confidential Portions Omitted and Filed Separately with the Commission (b) Rodel will give Nanophase six months prior written notice before Nanophase will be obliged to either (i) have installed capacity or manufacture over [ * * * ] of Particles per annum, or (ii) increase production by more than [ * * * ] kilograms of Particles over the production for the previous six-month period. Provided that Nanophase which an order is given such six-month notice, it will be obliged to manufacture up to [ * * * ] kilograms of Particles in the first year of this Agreement. (c) If Rodel requests that Nanophase commit to manufacture an amount of Particles in excess of [ * * * ] kilograms per annum, the parties will negotiate in good faith a mutually acceptable arrangement for payment of the capital expenditures required in order for Nanophase to manufacture such increased amount. Any failure of Rodel or Nanophase to agree upon such a mutually acceptable arrangement following good faith negotiations shall not constitute either (i) an unwillingness by Nanophase to supply Rodel with Particles under Section 8(a) of this Agreement, or (ii) a breach of any party's obligations under the Agreement. (d) Rodel will submit written purchase orders to Nanophase giving reasonable notice which may not be less than three weeks prior [ * ] percent ([ * ]) of PURCHASER's [ * ] of its [ * ]. In addition, GENSIA SICOR's supply obligation will not extend to more than [ * ] percent ([ * ]) of PURCHASER's [ * ] of its [ * ]. If a PURCHASER Product requirement for any quarter exceeds [ * ] of PURCHASER's [ * ], GENSIA SICOR and PURCHASER will discuss in good faith the additional amount, if any, that GENSIA SICOR is willing to supply consistent with its other obligations and PURCHASER will adjust its order accordingly. 4.2 The parties shall meet from time to time to review the estimated quantities in each forecast and any Firm Order then outstanding and to consult on matters relating to the requested date scheduling of shipment manufacture, import and specifying delivery of the required quantities, shipment dates, destinations Product but without prejudice and other relevant information, and Nanophase will use commercially reasonable efforts subject to fill the orders (including using reasonable commercial efforts to fill orders for which Rodel may be unable to provide a full three weeks' notice) so that Rodel may meet its delivery commitments to its customersobligations of the parties set forth in this Agreement. 4.3 Concurrent with execution of this Restated Agreement, Purchaser hereby places Firm Orders (e) Other provisions applicable to the purchase and sale GENSIA SICOR hereby acknowledges receipt and acceptance of the Particles shall be as provided same on its behalf and by SICOR) for the quantities of the Product set forth in Rodel's standard terms and conditions Exhibit 7 hereto. Notwithstanding the foregoing, the parties acknowledge that those Firm Orders set forth in Exhibit 7 with a scheduled delivery date after [ * ], are conditioned upon earlier receipt of sale, AADA approval by GENSIA SICOR from the FDA to the extent not inconsistent with this Agreement. manufacture Product at its [ * * * Confidential Portions Omitted and Filed Separately with the Commission] facility.

Forecasts and Orders. (a) Rodel will provide Nanophase with a rolling eighteen-month forecast of the volume of its Particle requirements at the start of each calendar quarter. The first three months of this forecast shall be firm and accompanied by a purchase order for such forecast. Unless otherwise agreed, Nanophase * * * CONFIDENTIAL TREATMENT REQUESTED need not manufacture more than [ * * * ] of the forecasted six-month volume in any single month period. * * * Confidential Portions Omitted and Filed Separately with the Commission. (b) Rodel will give Nanophase six months prior written notice before Nanophase will be obliged to either (i) have installed capacity or manufacture over [ * * * ] of Particles per annum, or (ii) increase production by more than [ * * * ] kilograms of Particles over the production for the previous six-month period. Provided that Nanophase is given such six-month notice, it will be obliged to manufacture up to [ * * * ] kilograms of Particles in the first year of this Agreement. (c) If Rodel requests that Nanophase commit to manufacture an amount of Particles in excess of [ * * * ] kilograms per annum, the parties will negotiate in good faith a mutually acceptable arrangement for payment of the capital expenditures required in order for Nanophase to manufacture such increased amount. Any failure of Rodel or Nanophase to agree upon such a mutually acceptable arrangement following good faith negotiations shall not constitute either (i) an unwillingness by Nanophase to supply Rodel with Particles under Section 8(a) of this Agreement, or (ii) a breach of any party's obligations under the Agreement. (d) Rodel will submit written purchase orders to Nanophase giving reasonable notice which may not be less than three weeks prior to the requested date of shipment and specifying the required quantities, shipment dates, destinations and other relevant information, and Nanophase will use commercially reasonable efforts to fill the orders (including using reasonable commercial efforts to fill orders for which Rodel may be unable to provide a full three weeks' notice) so that Rodel may meet its delivery commitments to its customers. (e) Other provisions applicable to the purchase and sale of the Particles shall be as provided in Rodel's standard terms and conditions of sale, to the extent not inconsistent with this Agreement. * * * Confidential Portions Omitted and Filed Separately with the CommissionCONFIDENTIAL TREATMENT REQUESTED