Common use of Licensee Efforts Clause in Contracts

Licensee Efforts. During the term of this Agreement, Licensee shall use commercially reasonable efforts to exploit the Licensed Patents and/or Licensed Technology in the Field of Use in countries where it is commercially reasonable to develop Licensed Products hereunder, and to achieve the following development benchmarks (“Benchmarks”) within the following time periods as set forth below: [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] In addition, Licensee will use commercially reasonable efforts to commercialize and market all Licensed Products as soon as practicable in accordance with the terms of a development plan prepared by Licensee within ninety (90) days of the Effective Date of this Agreement. Licensee will provide Licensor with (i) annual updates of the development plan, (ii) clear and comprehensive documentation of its investment in the development of Licensed Products, and (iii) annual written progress reports outlining the development, evaluation, testing and commercialization of all Licensed Products. Licensee and Licensor agree to jointly and thoroughly review and discuss Licensee’s efforts within six (6) months of the third (3rd) anniversary of this Agreement. Acting reasonably and in good faith, Licensee and Licensor will determine if any Licensed Product is not being actively developed, evaluated, tested or commercialized and Licensee agrees to review its interest in maintaining its license to the Licensed Patent of any such Licensed Product. For each Licensed Patent, in the event (i) Licensee is unable to achieve a given Benchmark for a Licensed Product covered by such Licensed Patent in accordance with its applicable timeline and (ii) Licensor determines, acting reasonably, that commercially reasonable * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission efforts are not being made by the Licensee to develop a Licensed Product covered by such Licensed Patent, Licensor may deliver written notice to Licensee of such non-performance. In the event Licensee has not cured the deficiencies outlined in such written notice within sixty (60) days after such written notice was received by Licensee, Licensor may, solely with respect to such Licensed Patent that is the subject of such non-performance, render the license to such Licensed Patent non-exclusive or terminate the license to such Licensed Patent, at the sole discretion of Licensor, upon written notice to Licensee of Licensor’s decision. Notwithstanding anything to the contrary in the Agreement, in the event that Licensee is unable to achieve a given Benchmark according to its applicable timeline, Licensee may, [***] for each Licensed Patent under the Agreement, extend the timeline by [***] by making a [***] dollars Canadian ($[***] Cdn) payment to Licensor (where, for the avoidance of doubt, all later occurring Benchmark(s) shall also be similarly extended by [***]). If Licensee fails to reimburse Licensor for any patent costs for any Licensed Patents, the license rights to such Licensed Patents and the Licensed Technology they cover cease to be part of the license granted to Licensee under this Agreement and all license rights to such Licensed Patents and the Licensed Technology they cover will automatically return to Licensor to deal with at its sole discretion without any obligation to Licensee; provided, however, that Licensor has given Licensee written notice of any overdue payment owed by Licensee and Licensor fails to make such payment within thirty (30) days of receipt of such overdue payment notice. For clarity, Licensee will still be liable to Licensor for any outstanding patent costs incurred up to and including the date that the license to any such Licensed Technology and Licensed Patents is terminated.

Licensee Efforts. During the term of this Agreement, (a) Licensee shall use commercially reasonable efforts Commercially Reasonable Efforts to exploit the Licensed Patents and/or Licensed Technology develop for commercial sale and to market Products in the Field of Use in countries where it is commercially reasonable to develop Licensed Products hereunderTerritory, and to achieve the following development benchmarks continue to market Products as long as commercially viable, all in a manner consistent with sound and reasonable business practices. (“Benchmarks”b) within the following time periods Except as set forth in subsection (e), below: [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] In addition, Licensee will use commercially reasonable efforts to commercialize and market all Licensed Products as soon as practicable in accordance with any compound on Schedule 1 for which formulation development has not been initiated by the terms of a development plan prepared by Licensee within ninety (90) days 4th anniversary of the Effective Date of this Agreement. Licensee , will provide Licensor with be delisted from Schedule 1. (ic) annual updates of the development plan, (ii) clear and comprehensive documentation of its investment in the development of Licensed Products, and (iii) annual written progress reports outlining the development, evaluation, testing and commercialization of all Licensed Products. Licensee and Licensor agree to jointly and thoroughly review and discuss Licensee’s efforts within six (6) months of the third (3rd) anniversary of this Agreement. Acting reasonably and in good faith, Licensee and Licensor will determine if any Licensed Product is not being actively developed, evaluated, tested or commercialized and Licensee agrees to review its interest in maintaining its license to the Licensed Patent of any such Licensed Product. For each Licensed Patent, in the event (i) Licensee is unable to achieve a given Benchmark for a Licensed Product covered by such Licensed Patent in accordance with its applicable timeline and (ii) Licensor determines, acting reasonably, that commercially reasonable * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Securities and Exchange Commission efforts are not being made by the Licensee to develop a Licensed Product covered by such Licensed Patent, Licensor may deliver written notice to Licensee of such non-performance. In the event Licensee engages in no material development activities (at least one of the following activities: formulation, analytical, clinical development or regulatory activities) once the development has not cured the deficiencies outlined in such written notice within sixty (60) days after such written notice was received by Licensee, Licensor may, solely been started with respect to such Licensed Patent that is a compound listed on Schedule 1 for a period of at least twelve (12) consecutive months, Licensor may provide Licensee with three (3) months notice of its intention to delist the subject of such non-performance, render the license to such Licensed Patent non-exclusive or terminate the license to such Licensed Patent, at the sole discretion of Licensor, upon written notice to Licensee of Licensor’s decision. Notwithstanding anything to the contrary in the Agreement, in the event that Licensee is unable to achieve a given Benchmark according to its applicable timeline, Licensee may, [***] for each Licensed Patent under the Agreement, extend the timeline by [***] by making a [***] dollars Canadian ($[***] Cdn) payment to Licensor (where, for the avoidance of doubt, all later occurring Benchmark(s) shall also be similarly extended by [***])compound. If Licensee fails to reimburse institute material development activities within such three (3) month period, Licensee shall have the right to delist the compound. Development delays due to the actions by regulatory authorities, IRBs and similar events beyond Auxilium’s control will not lead to delisting of a compound. (d) Subject to Licensor for any patent costs for any Licensed Patentsrights under the Ole Miss License Agreement, the license Sublicense Agreement and the UT License Agreement, should development of any compound in Schedule 1 be abandoned after development activities have been initiated, due to technical, safety, intellectual property or commercial reasons, Licensee shall have the right to add into Schedule 1 an additional unlisted compound not released by Licensee under the provisions of Section 2.3 of this Agreement under the same terms and conditions applicable to the delisted compound. In such event, Licensee shall have the right, at any time during the Term, to add into Schedule 1 one additional compound not released by Licensee under the provisions of Section 2.3 of this Agreement for each compound abandoned. In the event Licensor does not have rights to sublicense a compound Auxilium requests to add to Schedule 1 pursuant to this Section 6.2(d), Licensor shall use Commercially Reasonable Efforts to obtain such Licensed Patents and rights from the Licensed Technology they cover cease Inventors and/or the Universities. (e) In the event Licensee adds a compound to be part of the license granted Schedule 1 pursuant to Licensee under this Agreement and all license rights to such Licensed Patents and the Licensed Technology they cover will automatically return to Licensor to deal with at its sole discretion without any obligation to Licensee; providedSection 6.2(d), however, that Licensor has given Licensee written notice of any overdue payment owed by Licensee and Licensor fails to make such payment within thirty (30) days of receipt of such overdue payment notice. For clarityabove, Licensee will still be liable to Licensor for any outstanding patent costs incurred up to and including shall have four (4) years from the date that the license such compound is added to any such Licensed Technology and Licensed Patents is terminatedSchedule 1, within which to initiate formulation development.