Common use of FORECASTS AND PURCHASE ORDER Clause in Contracts

FORECASTS AND PURCHASE ORDER. On a [*] basis, PathoGenesis shall provide AeroGen with its good faith written projections of the anticipated requirements to be ordered from and delivered by AeroGen during the subsequent [ * ] (as may be amended from time to time by PathoGenesis, the "Supply Forecast"). PathoGenesis shall provide AeroGen with the Supply Forecast no later than [*] before the start of each [*]. The Supply Forecast will be binding for the next [*] and will be non-binding for the subsequent [*]. For each [*], and by no later than the first day of such [*], PathoGenesis will issue a firm purchase order for finished Inhaler Products required on a [*] basis by PathoGenesis in such [*], and a delivery date of no less than [*] from the date of such purchase order. AeroGen shall accept any such purchase order, or will negotiate a new delivery schedule for such purchase order and accept such revised purchase order, within [*] of receipt of such purchase order. Any purchase order for a given [*] so placed by PathoGenesis shall specify an amount which is at least [*] of the amount most recently forecast for such [*]. AeroGen shall accept and fill such purchase order; provided however, that where such purchase order specifies an amount which is more than [*] of the amount most recently forecast, AeroGen shall use commercially reasonable efforts to manufacture and supply such excess amount, but shall not be liable in any way in the event it is unable to so supply such excess amount. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

FORECASTS AND PURCHASE ORDER. On a monthly basis during the term of the Commercial Supply Agreement, beginning [***] basisdays prior to the expected first order of Nebulizer(s) hereunder, PathoGenesis Mpex shall provide AeroGen PARI with its good faith written projections of the anticipated requirements of Nebulizers to be ordered from and delivered by AeroGen PARI during the subsequent [ * ] rolling forward twelve month (as may be amended from time to time by PathoGenesis, 12) period (the "“Supply Forecast"”). PathoGenesis Mpex shall provide AeroGen PARI with the Supply Forecast no later than [***] days before the start of each calendar month. Upon the request of Mpex, PARI shall reasonably consult and assist Mpex in the development of Supply Forecasts which will ensure an adequate supply of Nebulizer in the wholesale and retail supply chain. Unless otherwise agreed by the Parties, the Supply Forecasts shall be binding on both Parties with respect to the first [*]. The Supply Forecast will be binding for the next [**] months specified therein, and will be non-binding for with respect to the subsequent remaining [*]**] months of the Supply Forecast. For each [*], and by no later than the first day Mpex will provide PARI with written purchase orders for its requirements of such [*], PathoGenesis will issue a firm Nebulizers. The purchase order for finished Inhaler Products required on a [*] basis by PathoGenesis in such [*], and shall include a delivery date of no less than at least [***] from days after the date placement of such purchase order, unless otherwise agreed by PARI. AeroGen PARI shall not reject any purchase orders placed by Mpex consistent with the binding portion of [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission Confidential treatment has been requested with respect to portions of this agreement. the Supply Forecast, and shall use reasonable commercial efforts to accept and fill purchase orders placed by Mpex that are in excess of the forecasted quantities from available supplies. Subject to the foregoing, PARI shall accept or reject purchase orders from Mpex within [***] business days after receipt thereof. Upon acceptance by PARI, such purchase orders including the delivery dates specified therein shall be binding. PARI’s sales of Nebulizers to Mpex hereunder shall be subject to the terms and limitations of the Commercial Supply Agreement and not to any such terms and conditions stated on an Mpex purchase order, an order acknowledged by PARI or will negotiate a new other document not effectively amending the Commercial Supply Agreement, except insofar as such order or other document establishes: (a) the quantity of Nebulizers sold; (b) the delivery schedule for such purchase order and accept such revised purchase order, within [*] date of receipt the Nebulizers; (c) customer-specific labeling or packing requirements; or (d) the destination of such purchase ordershipment of the Nebulizers. Any purchase order for a given [*] so placed by PathoGenesis shall specify an amount which is at least [*] of the amount most recently forecast for additional, inconsistent or different terms and conditions contained in such [*]. AeroGen shall accept and fill such purchase order; provided however, that where such purchase order specifies an amount which is more than [*] of the amount most recently forecast, AeroGen shall use commercially reasonable efforts to manufacture and supply such excess amount, but shall not be liable in any way in the event it is unable to so supply such excess amount. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDEDother documents are hereby expressly rejected.