Common use of Option to Purchase Additional System Clause in Contracts

Option to Purchase Additional System. (a) At any time prior to *** *** , BMS shall have an option to purchase a second System (the "Second System"). The total purchase price (the "Second System Purchase Puce") payable by BMS in consideration of IRORI's manufacture, delivery and installation of the Second System by IRORI, and the Right and License with respect to the Second System that will be effective upon the Acceptance Date with respect thereto, shall be *** ; provided, however, that if the Acceptance Date with respect to the Second System is delayed more than *** (such period, as may be extended as provided below, the "Grace Period") after the Second Delivery Deadline (as defined herein), the Second System Purchase Price shall be reduced by *** (calculated without regard to any previous reductions) for each *** (of portion thereof) that such Acceptance Date is delayed beyond the Grace Period, except to the extent that BMS causes any such delay. The Parties acknowledge and agree that BMS's testing of the Second System in accordance with Section 2.2 shall not constitute delay. If the Grace Period has not expired at the time IRORI sends a Readiness Notice with respect to the Second System, then the Grace Period shall be extended (or, as the case may be, any period of delay of the Acceptance Date with respect to the Second System beyond the expiration of the Grace Period shall be tolled), day-for-day, for each day that elapses between BMS's receipt of any Readiness Notice and completion of BMS's inspection of the Second System pursuant to Section 2.2(b)(i) (as such Section relates to the Second System pursuant to Section 2.5(d)). BMS shall notify IRORI Promptly of the completion of any such inspection. (b) BMS may exercise such option by delivering a notice (the "Option Exercise Notice")

Option to Purchase Additional System. (a) At any time prior to *** *** , BMS RPR shall have an option to purchase a second System (the "Second System"). The total purchase price (the "Second System Purchase PucePrice") payable by BMS RPR in consideration of IRORI's manufacture, delivery and installation of the Second System by IRORI, and the Right and License with respect to the Second System that will be effective upon the Acceptance Date with respect thereto, shall be *** ; provided, however, *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. that if the Acceptance Date with respect to the Second System is delayed more than *** (such period, as may be extended as provided below, the "Grace Period") after the Second Delivery Deadline (as defined herein), the Second System Purchase Price shall be reduced by *** (calculated without regard to any previous reductions) for each *** period (of or portion thereof) that such Acceptance Date is delayed beyond the Grace Period, except to the extent that BMS RPR causes any such delay. The Parties acknowledge and agree that BMSRPR's testing of the Second System in accordance with Section 2.2 2.5(c) and (e) shall not constitute delay. If the Grace Period has not expired at the time IRORI sends a Readiness Notice with respect to the Second System, then the Grace Period shall be extended (or, as the case may be, any period of delay of the Acceptance Date with respect to the Second System beyond the expiration of the Grace Period shall be tolled), day-for-day, for each day that elapses between BMSRPR's receipt of any Readiness Notice and completion of BMSRPR's inspection of the Second System pursuant to Section 2.2(b)(i) (as such Section relates 2.5(c), and then for each day of a reasonable period for delivery and installation of the Second System at the applicable Facility, and then for each day that elapses between IRORI's notice to RPR that the Second System has been installed at the Facility and that it conforms to the System Specifications and completion of RPR's inspection of the Second System pursuant to Section 2.5(d)2.5(e). BMS RPR shall notify IRORI Promptly promptly of the completion of any such inspectioninspections. (b) BMS RPR may exercise such option by delivering a notice (the "Option Exercise Notice") to IRORI. The Option Exercise Notice shall set forth the date on which RPR expects IRORI to deliver the Second System (the "Second Delivery Deadline"), which shall not be sooner than *** *** Following receipt of an Option Exercise Notice, IRORI shall use its best commercial efforts to diligently manufacture, deliver and install the Second System in a timely and expeditious manner. (i) IRORI shall manufacture the Second System and, before the Second Delivery Deadline, have it ready at IRORI's factory for testing pursuant to this Section 2.5(c). IRORI shall give RPR a Readiness Notice promptly after IRORI believes that the Second System has been completed and is ready for delivery. RPR shall have the right, as promptly as possible after the date of each Readiness Notice, and in any event not more than *** after the date of such notice, to test the Second System to verify that the Second System conforms to the System Specifications (using testing protocols developed by the Development Committee). (ii) If, upon the expiration of such *** period, RPR has failed to notify IRORI that the Second System does not conform to the System Specifications, then the Second System shall be prepared for delivery pursuant to Section 2.5(d). (iii) If such testing indicates that the Second System does not conform to the System Specifications, then prior to the expiration of such *** period, RPR shall notify IRORI of such non-conformity in sufficient detail to allow IRORI to attempt to remedy it. During the *** period following receipt of any such notice, IRORI shall use its best commercial efforts to bring the Second System into conformity with the System Specifications. If RPR reasonably determines, within *** after such *** period, that the Second System still does not conform to the System Specifications, then RPR shall be entitled to reject *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. the Second System by notice to IRORI, in addition to any other rights RPR may have under this Agreement, at law or in equity. If RPR has failed to notify IRORI that the Second System does not conform to the System Specifications upon the expiration of such *** period, then the Second System shall be prepared for delivery pursuant to Section 2.5(d). (d) Simultaneous with delivery of the Option Exercise Notice, RPR shall notify IRORI of the location of the Facility and of any special delivery instructions for the Second System. The Parties shall cooperate in coordinating the delivery and installation of the Second System at the Facility. IRORI shall install the Second System at the Facility in accordance with RPR's reasonable instructions and the System Specifications. (i) RPR shall have the right, as promptly as possible after installation of the Second System but in any event not more than *** after IRORI's installation of the Second System at the Facility, to verify that the Second System continues to conform to the System Specifications. To the extent it does not, IRORI shall promptly bring the Second System into such conformity. (ii) If, upon the expiration of such *** period, RPR has failed to notify IRORI that the Second System does not continue to conform to the System Specifications, then the Second System shall be deemed to continue to conform to the System Specifications, and RPR shall be deemed to have accepted the Second System. (iii) If such testing indicates that the Second System does not continue to conform to the System Specifications, then prior to the expiration of such *** period, RPR shall notify IRORI of such non-conformity in sufficient detail to allow IRORI to attempt to remedy it. During the *** period following receipt of any such notice, IRORI shall use its best commercial efforts to bring the Second System into conformity with the System Specifications. If RPR reasonably determines, within *** after such *** period, that the Second System still does not conform to the System Specifications, then RPR shall be entitled to reject the Second System by notice to IRORI, in addition to any other rights RPR may have under this Agreement, at law or in equity. If RPR has failed to notify IRORI that the Second System does not conform to the System Specifications upon the expiration of such *** period, then the Second System shall be deemed to conform to the System Specifications, and RPR shall be deemed to have accepted the Second System. (f) The Second System shall be identified to this Agreement as of the date of the Option Exercise Notice. IRORI shall bear the risk of any loss, deterioration or damage until the Second System has been delivered and installed at the Facility in accordance with the terms of this Agreement. Except as provided in Section 5.2, title to the Second System shall pass to RPR upon the date of actual or deemed acceptance thereof pursuant to Section 2.5(e). (g) RPR shall pay the Second System Purchase Price according to the following schedule: (i) shall be paid in conjunction with delivery of the Option Exercise Notice; *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. (ii) shall be paid within 45 days after the Second System is prepared for delivery pursuant to Section 2.5(c)(ii) or (iii); and (iii) shall be paid within 45 days after the Acceptance Date of the Second System. In the event that RPR rejects the Second System pursuant to Section 2.5(c) or (e), RPR shall be excused from making any further payment of the Second System Purchase Price. Such rejection shall not be exclusive of any right to terminate this Agreement.