Common use of Loss of Exclusivity Clause in Contracts

Loss of Exclusivity. If CYTOGEN only purchases between [**]% and [**]% of the Minimum Purchase Commitment as specified in Section 4.2 of this Agreement in any given year, MATRITECH shall, as its sole and exclusive remedy, have the right to, in its sole discretion and upon written notice to CYTOGEN, renegotiate the terms of the Agreement with CYTOGEN; provided, both parties must agree to such renegotiated terms in writing or convert CYTOGEN's Marketing Rights (as defined below) to non-exclusive for the Product within the Field in the Territory. In the event MATRITECH converts CYTOGEN's Marketing Rights to non-exclusive for the Field, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least [**]% of the Minimum Purchase Commitment of Product as specified in Section 4.2 of this Agreement in any given year shall result, after prior written notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination of the Agreement as provided in Section 8.2(b); provided, however, if MATRITECH terminates this Agreement under such circumstances, CYTOGEN's sole liability to MATRITECH is listed in Section 8.3 and 8.4 (with CYTOGEN having no liability for breach of CYTOGEN's Minimum Purchase Commitment under this Agreement), b) a loss of the exclusivity granted under this Agreement, or c) may attempt to negotiate new terms of the Agreement with CYTOGEN that may or may not include a loss of exclusivity. In the event of a loss of exclusivity under this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any, as set forth in Section 4.2. If during the Term of this Agreement, CYTOGEN purchases in excess of [**]% of the Minimum Purchase Commitment, CYTOGEN shall be deemed in conformance with Section 4.2(a) and shall retain its exclusivity for such particular period.

Loss of Exclusivity. If CYTOGEN only purchases between [**]% and [**]% of the Minimum Purchase Commitment as specified in Section 4.2 of this Agreement in any given year, MATRITECH shall, as its sole and exclusive remedy, have the right to, in its sole discretion and upon written notice to CYTOGEN, renegotiate the terms of the Agreement with CYTOGEN; provided, both parties must agree to such renegotiated terms in writing or convert CYTOGEN's Marketing Rights (as defined below) to non-exclusive for the Product within the Field in the Territory. In the event MATRITECH converts CYTOGEN's Marketing Rights to non-exclusive for the Field, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least [**]% of the Minimum Purchase Commitment of Product as specified in Section 4.2 of this Agreement in any given year shall result, after prior written notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination of the Agreement as provided in Section 8.2(b); provided, however, if MATRITECH terminates this Agreement under such circumstances, CYTOGEN's sole liability to MATRITECH is listed in Section 8.3 and 8.4 (with - 4 - CYTOGEN having no liability for breach of CYTOGEN's Minimum Purchase Commitment under this Agreement), b) a loss of the exclusivity granted under this Agreement, or c) may attempt to negotiate new terms of the Agreement with CYTOGEN that may or may not include a loss of exclusivity. In the event of a loss of exclusivity under this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any, as set forth in Section 4.2. If during the Term of this Agreement, CYTOGEN purchases in excess of [**]% of the Minimum Purchase Commitment, CYTOGEN shall be deemed in conformance with Section 4.2(a) and shall retain its exclusivity for such particular period.

Loss of Exclusivity. If CYTOGEN only purchases between [**]% and [**]% In the event LabCorp materially breaches this Agreement, including a failure to satisfy any milestones, [ * ] requirements, or other performance standards expressly stated to be a condition of the Minimum Purchase Commitment as specified in Section 4.2 of this Agreement exclusivity in any given yearCommercialization Plan, MATRITECH shalland any such failure is not cured within sixty (60) days after written notice thereof from ARCA, as its sole and exclusive remedy, have the right toARCA may, in its sole discretion and upon written notice to CYTOGENLabCorp, renegotiate elect to terminate its obligations under Section 2.5 and to convert the terms sublicense granted under Section 2.1 to a nonexclusive sublicense and the license granted under Section 2.2 to a nonexclusive license. Such termination of the obligations under Section 2.5 and conversion to a nonexclusive [*] 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 24b-2 of the Securities and Exchange Act of 1934, as amended. sublicense and nonexclusive license, as applicable, shall be effective immediately following expiration of such sixty (60)-day period or at some later time, as determined by ARCA in its sole discretion, as may be necessary in order to obtain a Third Party supplier of the Diagnostic Tests and Commercial Platform. Upon such termination, the Parties shall negotiate appropriate modifications to the provisions of this Agreement with CYTOGEN; provided, both parties must agree to such renegotiated terms in writing or convert CYTOGEN's Marketing Rights (as defined below) any plans which may be impacted by the conversion of the licenses from exclusive to non-exclusive for (including without limitation modifications to any such milestone, requirement or standard LabCorp failed to satisfy, as well as other milestones, requirements or standards that may be impacted by the Product within the Field in the Territory. In the event MATRITECH converts CYTOGEN's Marketing Rights to non-exclusive for the Field, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least [**]% nature of the Minimum Purchase Commitment of Product as specified in Section 4.2 of this Agreement in any given year shall result, after prior written notice license and adjustments to CYTOGEN and at MATRITECH's option as MATRITECH's sole and the royalties or other payments under Article VII based on the non-exclusive remedy, in a) the termination nature of the Agreement as provided in Section 8.2(blicenses); provided, however, if MATRITECH terminates this Agreement under such circumstances, CYTOGEN's sole liability to MATRITECH is listed in Section 8.3 and 8.4 (with CYTOGEN having no liability for breach . The exercise by ARCA of CYTOGEN's Minimum Purchase Commitment its rights under this Agreement), b) Section 10.5 shall not be deemed a loss waiver of the exclusivity granted any of ARCA’s other rights under this Agreement, or c) may attempt including pursuant to negotiate new terms Sections 6.2 and 10.3, upon the occurrence of any of the Agreement with CYTOGEN that may or may not include a loss of exclusivity. In the event of a loss of exclusivity under events specified in this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any, as set forth in Section 4.2. If during the Term of this Agreement, CYTOGEN purchases in excess of [**]% of the Minimum Purchase Commitment, CYTOGEN shall be deemed in conformance with Section 4.2(a) and shall retain its exclusivity for such particular periodSection.

Loss of Exclusivity. If CYTOGEN only purchases between sales volume of the Products sold by Biocompatibles pursuant to this Agreement during the quarter ended [**] (the "Trial Period") does not equal or exceed [**] cases, then IsoRay shall have the right, but not the obligation, to convert this Agreement into a nonexclusive agreement effective the first day of the second calendar month following the end of the Trial Period, i.e., [**]% and . If IsoRay elects to exercise such right, it shall provide Biocompatibles with written notice of the loss of its co-exclusive rights on or before the tenth (10th) day of the first month following the end of the Trial Period, i.e. [**]% . If written notice is not given by IsoRay by such tenth (10th) day, then Biocompatibles’ exclusive rights shall be maintained. Future minimum sales volumes shall be as follows (the “Initial Sales Targets”): Quarter Ending Number of Cases [**] [**] [**] 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 the omitted portions. If the Agreement is renewed as provided in Section 2.1 below, during each subsequent quarter following the quarter ended [**], the number of cases sold will be subject to a new addendum as mutually agreed to by the parties (the "Subsequent Sales Targets"). If any of the Minimum Purchase Commitment as specified in Section 4.2 of Initial Sales Targets or Subsequent Sales Targets are not met, then IsoRay shall have the right, but not the obligation, to convert this Agreement in any given year, MATRITECH shallinto a nonexclusive agreement effective the first day of the second calendar month following the end of the quarter during which the Initial or Subsequent Sales Targets, as the case may be, were not met. If IsoRay elects to exercise such right, it shall provide Biocompatibles with written notice of the loss of its sole and co-exclusive remedyrights on or before the tenth day of the first month following the end of the quarter in which the Initial or Subsequent Sales Target was not met. If written notice is not given by IsoRay by such tenth (10th) day, have the right tothen Biocompatibles’ exclusive rights shall be maintained. For example, in its sole discretion and upon written notice to CYTOGENthe quarter ended [**], renegotiate the terms of the Agreement with CYTOGEN; provided, both parties must agree to such renegotiated terms in writing or convert CYTOGEN's Marketing Rights (as defined below) to non-exclusive for the Product within the Field in the Territory. In the event MATRITECH converts CYTOGEN's Marketing Rights to non-exclusive for the Field, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least [**]% of the Minimum Purchase Commitment of Product as specified in Section 4.2 of ] cases must be sold to maintain exclusivity, and if this amount is not sold, IsoRay could convert this Agreement in any given year shall result, after prior written into a nonexclusive agreement effective as of [**] provided that IsoRay gives notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination of the Agreement as provided in Section 8.2(b); provided, however, if MATRITECH terminates this Agreement under its exercise of such circumstances, CYTOGEN's sole liability to MATRITECH is listed in Section 8.3 and 8.4 (with CYTOGEN having no liability for breach of CYTOGEN's Minimum Purchase Commitment under this Agreement), b) a loss of the exclusivity granted under this Agreement, or c) may attempt to negotiate new terms of the Agreement with CYTOGEN that may or may not include a loss of exclusivityright by [**]. In the event of IsoRay converts this Agreement into a loss of exclusivity under this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any, nonexclusive agreement as set forth in Section 4.2. If during the Term of this Agreementabove, CYTOGEN purchases in excess of IsoRay shall [**]% of the Minimum Purchase Commitment, CYTOGEN shall be deemed in conformance with Section 4.2(a) and shall retain its exclusivity for such particular period.

Loss of Exclusivity. If CYTOGEN only purchases between [**]% (a) Subject to Section 6.1.3(b), during any period the Xxxxxxx License is exclusive and [**]% Xxxxxxx has an obligation to pay DexCom Revenue Sharing or Royalties hereunder, if the total amount of Revenue Sharing and Royalty objective set forth in Exhibit G (the “Annual Royalty Objective”) is not met for any twelve (12) full calendar month period as set forth in Exhibit G (each such period a “Minimum Purchase Commitment as specified Royalty Year”) or, where applicable for the Pre-Year 1 Period in Section 4.2 Exhibit G, (it being understood and agreed that no such failure shall constitute a breach of this Agreement in any given yearby Xxxxxxx), MATRITECH shall, as its sole and then DexCom has the option to convert the Xxxxxxx License from an exclusive remedy, have the right to, in its sole discretion and upon written notice to CYTOGEN, renegotiate the terms of the Agreement with CYTOGEN; provided, both parties must agree to such renegotiated terms in writing or convert CYTOGEN's Marketing Rights (as defined below) to a non-exclusive license by providing Xxxxxxx written notice (the “Non-Exclusive Election Notice”) of such election within thirty (30) days after receiving from Xxxxxxx its report pursuant to Section 7.8 for the Product fourth Calendar Quarter of such Minimum Royalty Year (or, with respect to the Pre-Year 1 Period, its report as of the end of such period). If DexCom fails to provide to Xxxxxxx the Non-Exclusive Election Notice within the Field in aforementioned thirty (30) day period, then DexCom shall be deemed to have waived its right to convert the TerritoryXxxxxxx License based on failing to meet the Annual Royalty Objective for the immediately preceding Minimum Royalty Year (or, where applicable, the Pre-Year 1 Period). In the event MATRITECH converts CYTOGEN's Marketing Rights DexCom provides Xxxxxxx the Non-Exclusive Election Notice within the aforementioned [*****] period, then Xxxxxxx shall have the right to retain its exclusivity under the Xxxxxxx License by paying DexCom an amount equal to the difference (the “Shortfall Payment”) between the aggregate Revenue Sharing and Royalty payments paid by Xxxxxxx for the immediately preceding Minimum Royalty Year (or, where applicable, the Pre-Year 1 Period) and the Annual Royalty Objective for such Minimum Royalty Year (or Pre-Year 1 Period). If Xxxxxxx elects to retain its exclusivity under the Xxxxxxx License, it shall make the Shortfall Payment within thirty (30) days of Xxxxxxx’ receipt of the Non-Exclusive Election Notice. Otherwise, the Xxxxxxx License will convert without further notice from an exclusive to a nonexclusive license thirty (30) days after Xxxxxxx’ receipt of the Non-Exclusive Election Notice. Xxxxxxx shall have the right to make a Shortfall Payment to retain exclusivity for any Minimum Royalty Year (or Pre-Year 1 Period) during the Royalty Period in which the Annual Royalty Objective set forth in Exhibit G is not met. DexCom’s right to make the Xxxxxxx License non-exclusive pursuant to this Section 6.1.3 shall be DexCom’s sole and exclusive remedy for any failure by Xxxxxxx to achieve the Field, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least Annual Royalty Objective set forth in Exhibit G. [**]% ***] = 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 24b-2 of the Minimum Purchase Commitment Securities Exchange Act of Product as specified in Section 4.2 of this Agreement in any given year shall result, after prior written notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination of the Agreement as provided in Section 8.2(b); provided, however, if MATRITECH terminates this Agreement under such circumstances, CYTOGEN's sole liability to MATRITECH is listed in Section 8.3 and 8.4 (with CYTOGEN having no liability for breach of CYTOGEN's Minimum Purchase Commitment under this Agreement), b) a loss of the exclusivity granted under this Agreement, or c) may attempt to negotiate new terms of the Agreement with CYTOGEN that may or may not include a loss of exclusivity. In the event of a loss of exclusivity under this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any1934, as set forth in Section 4.2amended. If during Confidential treatment has been requested with respect to the Term of this Agreement, CYTOGEN purchases in excess of [**]% of the Minimum Purchase Commitment, CYTOGEN shall be deemed in conformance with Section 4.2(a) and shall retain its exclusivity for such particular periodomitted portions.

Loss of Exclusivity. If CYTOGEN only In the event that Hydrozonix purchases between [**]% at least sixteen (16) Units in the Primary Term and [**]% the relevant Annual Quota in the Renewal Term and otherwise remains in material compliance with all of the Minimum Purchase Commitment as specified in Section 4.2 of this Agreement in any given year, MATRITECH shall, as its sole and exclusive remedy, have the right to, in its sole discretion and upon written notice to CYTOGEN, renegotiate the terms of this Agreement, the Agreement exclusive nature of the sub-license shall continue in effect at the time of commencement of the Renewal Term for the first twelve (12) month period thereof. After the Primary Term, so long as Hydrozonix meets an Annual Quota of the purchase and full and timely payment for at least ████ Units pursuant to a delivery schedule to be agreed upon at least ninety (90) days before the beginning of each quarter of the Renewal Term and remains in compliance with CYTOGEN; providedall of the terms of this Agreement, both the exclusive nature of the sublicense shall continue in effect for each succeeding twelve (12) month period. If Hydrozonix fails to purchase Units in accordance with the Primary Term Delivery Schedule, or to meet an Annual Quota or related delivery schedule, or breaches this Agreement, the sub-license and the exclusive obligation to manufacture for Hydrozonix shall no longer be exclusive, Hydrozonix’s first-priority status under Section 2.b.iv. shall terminate, the royalty rate shall be reduced as and to the extent described in Section 5.e. below and the Preferential Rights shall no longer apply (with the consequence that the parties must seek to agree on the purchase price for any further Units that Hydrozonix desires to purchase hereunder). Confidential Information has been redacted. The Confidential Information that has been redacted has been filed separately with the Commission. Notwithstanding the foregoing, after the purchase of twenty-four (24) Units, Hydrozonix shall not lose its Preferential Rights so long as it has, as of any point in time, purchased an annual average number of Units equal to or greater than ████ from the beginning of the Primary Term (which shall be deemed to be two (2) years in length for the purpose of this calculation) until such renegotiated terms point in writing or convert CYTOGEN's Marketing Rights time. After twenty-four (as defined below24) Units have been purchased by Hydrozonix, following any termination of the Preferential Rights, the Licensee and the Manufacturer may pursue any other activities with respect to the Units, the Patent Rights, the Know How and the Trademarks free and clear of any restrictions under this Agreement, including the sale of Units, the provision of services using Units, non-exclusive for licensing transactions and so forth. During the Product within the Field Renewal Term, in the Territory. In event that Hydrozonix believes that the event MATRITECH converts CYTOGEN's Marketing Rights █████ Unit Annual Quota is too high or too low in light of market demand, the parties agree to non-exclusive for discuss modifying the Fieldquota based on market demand, it must first offer Cytogen similar deal terms if it intends to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least [**]% of the Minimum Purchase Commitment of Product as specified in Section 4.2 of this Agreement in any given year shall result, after prior written notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination of the Agreement as provided in Section 8.2(b); provided, however, if MATRITECH terminates this Agreement under such circumstances, CYTOGEN's sole liability neither party shall be obligated to MATRITECH is listed agree to a new quota. The representations and warranties in Section 8.3 and 8.4 10 below shall be unaffected by a decrease in the Annual Quota. Further, at any time after Hydrozonix has purchased 24 Units, if Hydrozonix’s Preferential Rights terminate, then for twenty-four (with CYTOGEN having no liability 24) months after any such termination neither the Manufacturer nor the Licensee shall sell, lease or rent Units to a third party within the Field of Use, for breach less than a Unit purchase price of CYTOGEN's Minimum Purchase Commitment under this Agreement█████ per Unit (the “Comparison Price”), bwith the Comparison Price adjusted from the date of such termination by utilizing changes in the Producer Price Index (excluding energy prices) published by the Bureau of Labor Statistics (the “Comparison Price Restriction”). For purposes of determining whether a loss of rental or lease rate is more favorable than the exclusivity granted under this AgreementComparison Price, the rental rate or c) may attempt to negotiate new terms of the Agreement with CYTOGEN that may or may not include a loss of exclusivity. In the event of a loss of exclusivity under this section, CYTOGEN shall no longer have a Minimum Purchase Commitment for that year and for subsequent years, if any, as set forth in Section 4.2. If during the Term of this Agreement, CYTOGEN purchases in excess of [**]% of the Minimum Purchase Commitment, CYTOGEN lease rate shall be deemed in conformance with Section 4.2(aextended over an assumed forty-eight (48) month duration and discounted back to a present value based upon a ten percent (10%) discount rate. The present value calculated must be greater than or equal to the Comparison Price. Hydrozonix shall retain its exclusivity have the right to have an independent third party auditor (reasonably acceptable to the Licensee and subject to a confidentiality agreement enforceable by the Licensee and at least as onerous as the confidentiality obligations hereunder) review the Licensee’s books and records for such particular periodthe sole purpose of confirming that the Licensee properly computed the purchase price.