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 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 (i) In the event that Distributor has not ordered [**]% and ] total Eden 333 Systems by the end of [*] months from the date hereof, Distributor shall be required to pay the Company the sum of $[*]% ] as an advance payment for future orders of Systems in order to maintain its exclusivity hereunder (the Minimum Purchase Commitment as specified in Section 4.2 "Supplemental Advance"). If the Distributor neither orders the [*] Eden 333 Systems by the end of this Agreement in any given yearsaid [*] months nor pays Company the Supplemental Advance within 20 days thereafter, MATRITECH shall, as then (a) Distributor shall be thereby deemed to have lost its sole exclusivity hereunder 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 shall thereafter be a non-exclusive for distributor of the Product within the Field Products in the TerritoryTerritory and (b) the restriction on Company's right to market, sell and distribute Products in the Territory under Sections 2A and 2B and its obligations under Sections 6B and 8B shall automatically lapse. In Distributor may regain exclusivity in the event MATRITECH converts CYTOGENTerritory only if it has submitted by the first anniversary of the date hereof binding purchase orders to the Company for a total of [*] Eden 333 Systems, in which case all of the restrictions on Company's Marketing Rights right to market, sell and distribute Products in the Territory under Section 2A and 2B or to appoint other distributors to market, sell and distribute Products in the Territory and its obligations under Sections 6B and 8B shall be reinstated. (ii) If Distributor has not ordered the Minimum Annual Sales Quota of Eden 333 Systems during each subsequent year of the Term (whether as set forth on Appendix F or as agreed by the parties in accordance with Section 9 hereof), then (a) Distributor shall be thereby deemed to have lost its exclusivity hereunder and shall thereafter be a 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 [**]% distributor of the Minimum Purchase Commitment of Product as specified Products in the Territory and (b) the restrictions on Company's right to market, sell and distribute Products in the Territory under Section 4.2 2A and 2B and its obligations under Sections 6B and 8B shall automatically lapse. (iii) Anything in clause (ii) of this Agreement in any given year shall resultSection 2D to the contrary notwithstanding, after prior written notice to CYTOGEN and if at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination end of the first, second or third 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 Quarter of the exclusivity granted under this Agreement, or c) may attempt to negotiate new terms third year 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 Distributor has not ordered an average of [**]% ] Eden 333 Systems per Agreement Quarter during such third year of the Minimum Purchase CommitmentTerm, CYTOGEN then (a) Distributor shall be thereby deemed in conformance with Section 4.2(a) to have lost its exclusivity hereunder and shall retain thereafter be a non-exclusive distributor of the Products in the Territory and (b) the restrictions on Company's right to market, sell and distribute Products in the Territory under Section 2A and 2B and its exclusivity for such particular periodobligations under Sections 6B and 8B shall automatically lapse.

Loss of Exclusivity. If CYTOGEN only purchases between [**]% Subject to the cure provisions in this Section 2.9, in addition to any other requirements for maintaining exclusivity and [**]% of license rights herein, the Minimum Purchase Commitment as specified exclusive rights and licenses granted to BH 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) 2 may be converted by NET Power to non-exclusive for rights and licenses upon notice from NET Power no sooner than [***] following the Product within occurrence of any of the Field events listed below (or, in the Territory. In case of (b), (c), (d), below, BH’s actual awareness of the event MATRITECH converts CYTOGEN's Marketing Rights if BH has not informed NET Power of the occurrence of each event or inability to meet the subject obligations) (each a “Exclusivity Loss” event): (a) Prior to [***] the Joint Development Agreement has been validly terminated pursuant to Section 11 (“Term and Termination”) of the Joint Development Agreement, further provided that (i) if BH has provided notice to NET Power within [***] of such termination of BH’s intent to continue the development and commercialization of the KPEP and continually progresses in good faith to develop and commercialize the KPEP, then BH’s licenses hereunder shall continue as non-exclusive for the Fieldlicenses; (ii) otherwise, it must first offer Cytogen similar deal terms if it intends BH’s licenses hereunder shall terminate pursuant to offer said Marketing Rights to another person or entity. Failure by CYTOGEN to purchase at least Section 8.2(c); (b) Following [**]% *] in any [***] period, BH has rejected [***] or more bona-fide Purchase Contracts from third parties for the sale and transfer of title of Turbo Expanders to such third parties at least in part as a result of having insufficient capacity to fulfill Purchase Contracts within a [***] delivery schedule, and BH and its Affiliates have not undertaken a plan to increase capacity that would have allowed delivery under such Purchase Contracts to be satisfied had such capacity existed at the time the order would have been placed (and which plan results in the actual planned increase in capacity in not more than [***] from the date of the Minimum applicable Purchase Commitment Contract or such other time period as agreed upon in writing by the Parties); (c) Following [***] BH and its Affiliates and sublicensees have not established (or undertaken a plan to establish) or thereafter ceases having manufacturing capability for and cease marketing Turbo Expanders for use in Utility Plants, NET Power provides BH a notice of Product intent to terminate exclusivity pursuant to this Section 2.9c), and BH fails to confirm in writing within [***] of such notice that it will reestablish such manufacturing and marketing capability in order to supply Turbo Expanders for use in Utility Plants within [***] of receipt of any bona fide request for a Purchase Order for the sale and transfer of title therefor or such other time period as specified agreed upon in writing by the Parties; (d) Following [***] BH and its Affiliates and sublicensees cannot regularly provide Turbo Expanders within a standard lead time not exceeding [***] (or such other time period as agreed upon in writing by the Parties ), NET Power provides BH a notice of intent to terminate exclusivity pursuant to this Section 4.2 2.9(d), and BH fails to confirm in writing within [***] of this Agreement such notice that BH does have and is implementing a plan to reestablish manufacturing capability in any given year order to meet such lead time on a regular basis (and which plan results in the actual planned increase in capacity in not more than [***] or such other time period as agreed by the Parties). NET Power shall result, provide notice in writing to BH as soon as reasonably practicable after prior written notice to CYTOGEN and at MATRITECH's option as MATRITECH's sole and exclusive remedy, in a) the termination becoming aware of the Agreement as provided in Section 8.2(b); providedan Exclusivity Loss event. The loss of exclusivity shall be effective [***] following BH’s receipt of such notice, 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 *] period shall be deemed extended if the Exclusivity Loss event can be cured within the time periods set out in conformance with Section 4.2(a(b) through (d) above and shall retain its exclusivity for such particular periodBH has and continues working diligently to cure the Exclusivity Loss event.