PAYMENTS, REPORTS AND AUDITS. 1. COMPANY shall keep true and accurate records of gross sales of the PRODUCT by COMPANY, its AFFILIATES or permitted sub-licensees, the items deducted from the gross amount in calculating the NSP, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY shall deliver to ELAN a written statement thereof within sixty (60) days following the end of each calendar quarter (or any part thereof in the first or last calendar quarter of this Agreement) for such calendar quarter. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”). The parties’ financial officers shall agree upon the precise format of the Statement. 2. Payments due on NSP of the PRODUCT based on sales amounts in a currency other than United States Dollars shall first be calculated in the foreign currency and then converted to United States Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the Wall Street Journal) with respect to the sale of currency of the country of origin of such payment for the day prior to the date on which the payment by COMPANY is being made. 3. Any income or other taxes which COMPANY and ELAN, if applicable, is required by law to pay or withhold on behalf of the receiving party with respect to royalties and any other monies payable to such party under this Agreement shall be deducted from the amount of such NSP payments, royalties and other monies due. COMPANY and ELAN, if applicable, shall furnish the receiving party with proof of such payments. Any such tax required to be paid or withheld shall be an expense of and borne solely by the receiving party. COMPANY and ELAN, if applicable, shall promptly provide the receiving party with a certificate or other documentary evidence to enable the receiving party to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by the paying party. Both parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable the paying party to make such payments to the receiving party without any deduction or withholding. 4. All payments due hereunder shall be made to the designated bank account of ELAN in accordance with such timely written instructions as ELAN shall from time to time provide. 5. COMPANY shall pay interest to ELAN at the rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office at its prime or best rate plus [ * ] on all late payments under this Agreement (applicable as of the date on which payment should have been made pursuant to the applicable provisions of this Agreement) from the date on which payment should have been made pursuant to the applicable provision until the date of payment. 6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. . 7. For the one hundred and eighty (180) day period following the close of each calendar year during the term of the Agreement, ELAN and COMPANY will provide each others independent certified accountants (reasonably acceptable to the other party) with access, during regular business hours and upon reasonable prior request and subject to the confidentiality provisions as contained in this Agreement, to such party’s books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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. 8. In the event of a discovery of a discrepancy which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any period, the cost of such accountants shall be borne by the audited party; otherwise, such cost shall be borne by the auditing party. 9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.
Appears in 1 contract
PAYMENTS, REPORTS AND AUDITS. 1. COMPANY 9.1 With reference to Clause 6.4, JVP and/or Newco, and/or any Affiliate of JVP and/or Newco, shall […***…] following the execution of any Commercialization Agreement (and any subsequent amendment thereto), provide Elan with a copy of the financial provisions and any other relevant terms of such Commercialization Agreement.
9.2 JVP and Newco shall keep true and accurate records of gross sales of the PRODUCT by COMPANY, its AFFILIATES or permitted sub-licensees, the items deducted from the gross amount Net Revenues and Net Sales and any deductions made in calculating same. Where JVP and/or Newco have Net Revenues and/or Net Sales, JVP and/or Newco, as the NSPcase may be, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY shall deliver to ELAN EIS a written statement (the “Statement”) thereof within sixty (60) […***…] days following the end of each calendar quarter (or any part thereof in the first or last calendar quarter of this Agreement) for such calendar quarter. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”thereof). The parties’ financial officers of EIS and JVP shall agree upon the precise format of the Statement.
2. 9.3 Payments due on NSP of the PRODUCT based Net Revenues and Net Sales on sales amounts in a currency other than United States US Dollars shall first be calculated in the foreign currency and then converted to United States US Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States US Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the Wall Street Journal) with respect to the sale of currency of the country of origin of such payment for the day prior to the date on which the payment by COMPANY is being made).
3. 9.4 Any income or other taxes which COMPANY and ELAN, if applicable, is JVP and/or its Affiliates (excluding Newco) are required by law to pay or withhold on behalf of the receiving party EIS with respect to royalties and any other monies payable to such party Deferred Consideration payments under this Agreement shall be deducted from the amount of such NSP Deferred Consideration payments. JVP and/or its Affiliates (excluding Newco), royalties and other monies due. COMPANY and ELAN, if applicableas the case may be, shall furnish the receiving party EIS with proof of such payments. Any such tax required to be paid or withheld shall be an expense of and borne solely by JVP and/or its Affiliates (excluding Newco), as the receiving party. COMPANY and ELAN, if applicablecase may be, shall promptly provide the receiving party EIS with a certificate or other documentary evidence to enable the receiving party EIS to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by JVP and/or its Affiliates (excluding Newco), as the paying partycase may be. Both parties The Parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable JVP and/or its Affiliates (excluding Newco), as the paying party case may be, to make such payments to the receiving party EIS without any deduction or withholding.
49.5 Payment of monies hereunder shall be made by JVP and/or its Affiliates (excluding Newco), as the case may be to EIS within […***…] days of the Statement. All payments due hereunder shall be made in U.S. Dollars.
9.6 All payments due hereunder shall be made to the designated bank account of ELAN EIS in accordance with such timely written instructions as ELAN EIS shall from time to time provide.
5. COMPANY 9.7 Without prejudice to EIS’s other remedies hereunder, JVP and/or its Affiliates (excluding Newco), as the case may be, shall pay interest to ELAN at the rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office at its prime or best rate plus [ * ] EIS on all late payments under this Agreement (applicable as of sums not paid to EIS on the date on which payment should have been made pursuant to the applicable provisions of this AgreementAgreement (“Due Date”) over the period from the date on which payment should have been made pursuant to the applicable provision Due Date until the date of paymentactual payment (both before and after judgment) at the Prime Rate publicly announced by Mxxxxx Guaranty Trust Company of New York at its principal office on the Due Date (or next to occur business day, if such date is not a business day) plus […***…] %, such interest payable on demand from time to time and compounded monthly.
6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. .
7. 9.8 For the one hundred and eighty (180) […***…] day period following the close of each calendar year during the term of the Agreement, ELAN and COMPANY will JVP and/or its Affiliates (excluding Newco), as the case may be, will, in the event that EIS reasonably requests such access, provide each others EIS’ independent certified accountants (reasonably acceptable to the other party) with access, during regular business hours and upon reasonable prior request and subject to the confidentiality provisions as contained in this Agreement, to such party’s books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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.
8. In the event of a discovery of a discrepancy which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any period, the cost of such accountants shall be borne by the audited party; otherwise, such cost shall be borne by the auditing party.
9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.to
Appears in 1 contract
Samples: Termination Agreement (Curis Inc)
PAYMENTS, REPORTS AND AUDITS. 1. COMPANY 13.1 With reference to Clause 4, IMCOR and/or an Affiliate of IMCOR shall keep true and accurate records of gross sales Net Sales and/or Net Revenues. Where IMCOR and/or an Affiliate of IMCOR has Net Sales and/or Net Revenues, IMCOR and/or an Affiliate of IMCOR (as the PRODUCT by COMPANY, its AFFILIATES or permitted sub-licensees, the items deducted from the gross amount in calculating the NSP, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY case may be) shall deliver to ELAN Elan a written statement (the “Statement”) thereof within sixty (60) 45 days following the end of each calendar quarter (or any part thereof in the first or last calendar quarter of this Agreement) for such calendar quarter. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”thereof). The parties’ financial officers of Elan and IMCOR shall agree upon the precise format of the Statement.
2. 13.2 Payments due on NSP of the PRODUCT based Net Sales and/or Net Revenues on sales amounts in a currency other than United States US Dollars shall first be calculated in the foreign currency and then converted to United States US Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States US Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the Wall Street Journal) with respect to the sale of currency of the country of origin of such payment for the day prior to the date on which the payment by COMPANY is being made).
3. 13.3 Any income or other taxes which COMPANY and ELAN, if applicable, IMCOR and/or an Affiliate of IMCOR is required by law to pay or withhold on behalf of the receiving party Elan with respect to royalties and any other monies payable to such party Net Sales and/or Net Revenues payments under this Agreement shall be deducted from the amount of such NSP Net Sales and/or Net Revenues payments. IMCOR and/or an Affiliate of IMCOR, royalties and other monies due. COMPANY and ELAN, if applicableas the case may be, shall furnish the receiving party Elan with proof of such payments. Any such tax required to be paid or withheld shall be IMCOR and/or an expense Affiliate of and borne solely by IMCOR, as the receiving party. COMPANY and ELAN, if applicablecase may be, shall promptly provide the receiving party Elan with a certificate or other documentary evidence to enable the receiving party Elan to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by the paying partyIMCOR and/or an Affiliate of IMCOR. Both parties The Parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable IMCOR and/or an Affiliate of IMCOR, as the paying party case may be, to make such payments to the receiving party Elan without any deduction or withholding.
4. 13.4 Payment of monies hereunder shall be made by IMCOR and/or an Affiliate of IMCOR, as the case may be, to Elan within 45 days of the Statement.
13.5 All payments due hereunder shall be made in U.S. Dollars.
13.6 All payments due hereunder shall be made to the designated bank account of ELAN Elan in accordance with such timely written instructions as ELAN Elan shall from time to time provide.
5. COMPANY 13.7 Without prejudice to Elan’s other remedies hereunder, IMCOR and/or an Affiliate of IMCOR, as the case may be, shall pay interest to ELAN at the rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office at its prime or best rate plus [ * ] Elan on all late payments under this Agreement (applicable as of sums not paid to Elan on the date on which payment should have been made pursuant to the applicable provisions of this AgreementAgreement (“Due Date”) over the period from the date on which payment should have been made pursuant to the applicable provision Due Date until the date of paymentactual payment (both before and after judgment) at the Prime Rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office on the Due Date (or next to occur business day, if such date is not a business day) plus 5%, such interest to be payable on demand from time to time and compounded monthly.
6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. .
7. 13.8 For the one hundred and eighty (180) 180 day period following the close of each calendar year during the term of the Agreement, ELAN and COMPANY will IMCOR and/or an Affiliate of IMCOR, as the case may be, will, in the event that Elan reasonably requests such access, provide each others Elan’s independent certified accountants (reasonably acceptable to the other partyIMCOR and/or an Affiliate of IMCOR) with access, during regular business hours and upon reasonable prior request and subject to the confidentiality provisions as contained in this Agreement, to such party’s IMCOR and/or an Affiliate of IMCOR, as the case may be, books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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.
8. 13.9 In the event that IMCOR and/or an Affiliate of a discovery IMCOR shall sell the Product(s) to any third party, or enter into any agreement with respect thereto with any third party, together with other products of a discrepancy IMCOR or an Affiliate of IMCOR, by the method commonly known in the pharmaceutical industry as “bundling” and the price attributable to the Product(s) is less than the average price which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any periodwould have been attributable thereto on an “arms length” basis, the cost of such accountants Net Revenues and/or Net Sales attributable thereto hereunder shall be borne adjusted by the audited party; otherwise, such cost shall be borne by the auditing partyParties to reflect an average price on an “arms length” basis.
9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.
Appears in 1 contract
PAYMENTS, REPORTS AND AUDITS. 1. COMPANY shall keep true and accurate records of gross sales of the PRODUCT by COMPANY, its AFFILIATES or permitted sub-licensees, the items deducted from the gross amount in calculating the NSP, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY shall deliver to ELAN a written statement thereof within sixty (60) days following the end of each calendar quarter (or any part thereof in the first or last calendar quarter of this Agreement) for such calendar quarter. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”). The parties’ financial officers shall agree upon the precise format of the Statement.
2. Payments due on NSP of the PRODUCT based on sales amounts in a currency other than United States Dollars shall first be calculated in the foreign currency and then converted to United States Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the Wall Street Journal) with respect to the sale of currency of the country of origin of such payment for the day prior to the date on which the payment by COMPANY is being made.
3. Any income or other taxes which COMPANY and ELAN, if applicable, is required by law to pay or withhold on behalf of the receiving party with respect to royalties and any other monies payable to such party under this Agreement shall be deducted from the amount of such NSP payments, royalties and other monies due. COMPANY and ELAN, if applicable, shall furnish the receiving party with proof of such payments. Any such tax required to be paid or withheld shall be an expense of and borne solely by the receiving party. COMPANY and ELAN, if applicable, shall promptly provide the receiving party with a certificate or other documentary evidence to enable the receiving party to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by the paying party. Both parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable the paying party to make such payments to the receiving party without any deduction or withholding.
4. All payments due hereunder shall be made to the designated bank account of ELAN in accordance with such timely written instructions as ELAN shall from time to time provide.
5. COMPANY shall pay interest to ELAN at the rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office at its prime or best rate plus [ * ] on all late payments under this Agreement (applicable as of the date on which payment should have been made pursuant to the applicable provisions of this Agreement) from the date on which payment should have been made pursuant to the applicable provision until the date of payment.
6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. .
7. For the one hundred and eighty (180) day period following the close of each calendar year during the term of the Agreement, ELAN and COMPANY will provide each others independent certified accountants (reasonably acceptable to the other party) with access, during regular business hours and upon reasonable prior request and subject to the confidentiality provisions as contained in this Agreement, to such party’s books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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.
8. In the event of a discovery of a discrepancy which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any period, the cost of such accountants shall be borne by the audited party; otherwise, such cost shall be borne by the auditing party.
9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.
Appears in 1 contract
PAYMENTS, REPORTS AND AUDITS. 1. COMPANY 9.1 With reference to Clause 6.4, Newco and/or JVP shall keep true and accurate records of gross sales of the PRODUCT by COMPANY, its AFFILIATES Net Revenues or permitted sub-licensees, the items deducted from the gross amount Net Sales and any deductibles made in calculating same for a period of three (3) years following the NSPcalendar quarter (or any part thereof) in which such Net Revenues or Net Sales occurred. Where Newco and/or JVP has Net Revenues or Net Sales, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY Newco and/or JVP shall deliver to ELAN EIS a written statement (the "STATEMENT") thereof within sixty (60) 45 days following the end of each calendar quarter (or any part thereof thereof) in the first which such Net Revenues or last calendar quarter of this Agreement) for such calendar quarterNet Sales occurred. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”). The parties’ financial officers of EIS and Newco and/or JVP shall agree upon the precise format of the Statement.
2. 9.2 Payments due on NSP of the PRODUCT based Net Revenues or Net Sales on sales amounts in a currency other than United States US Dollars shall first be calculated in the foreign currency and then converted to United States US Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States US Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the Wall Street Journal) with respect to on the sale of currency last business day of the country of origin of calendar quarter in which such payment for the day prior to the date on which the payment by COMPANY is being madeNet Revenues or Net Sales occurred.
3. 9.3 Any income or other taxes which COMPANY and ELAN, if applicable, JVP and/or its Affiliates (excluding Newco) is required by law to pay or withhold on behalf of the receiving party EIS with respect to royalties and any other monies payable to such party Net Revenues or Net Sales payments under this Agreement shall be deducted from the amount of such NSP Net Revenues or Net Sales payments, royalties and other monies due. COMPANY and ELAN, if applicable, JVP and/or its Affiliates (excluding Newco) shall furnish EIS as part of the receiving party with proof Statement an accounting of any such payments. Any such tax required to be paid or withheld shall be an expense of and borne solely by the receiving party. COMPANY and ELAN, if applicable, JVP and/or its Affiliates (excluding Newco) shall promptly provide the receiving party EIS, upon request, with a certificate or other documentary evidence to enable the receiving party EIS to support a claim for seek a refund or a foreign tax credit with respect to any such tax so withheld or deducted by the paying partyJVP and/or its Affiliates (excluding Newco). Both The parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable the paying party JVP and/or its Affiliates (excluding Newco) to make such payments to the receiving party EIS without any deduction or withholding.
4. All payments due 9.4 Payment of monies hereunder shall be made by JVP and/or its Affiliates (excluding Newco) to the designated bank account of ELAN in accordance with such timely written instructions as ELAN shall from time to time provide.
5. COMPANY shall pay interest to ELAN at the rate publicly announced by Xxxxxx Guaranty Trust Company of New York at its principal office at its prime or best rate plus [ * ] on all late payments under this Agreement (applicable as EIS within 45 days of the date on which payment should have been made pursuant to the applicable provisions of this Agreement) from the date on which payment should have been made pursuant to the applicable provision until the date of paymentStatement.
6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. .
7. For the one hundred and eighty (180) day period following the close of each calendar year during the term of the Agreement, ELAN and COMPANY will provide each others independent certified accountants (reasonably acceptable to the other party) with access, during regular business hours and upon reasonable prior request and subject to the confidentiality provisions as contained in this Agreement, to such party’s books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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.
8. In the event of a discovery of a discrepancy which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any period, the cost of such accountants shall be borne by the audited party; otherwise, such cost shall be borne by the auditing party.
9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.
Appears in 1 contract
PAYMENTS, REPORTS AND AUDITS. 1. COMPANY With reference to Clause 6.4:
9.1 JVP and/or Newco, and/or any Affiliate of JVP and/or Newco, shall [...***...] following the execution of any Commercialization Agreement (and any subsequent amendment thereto), provide Elan with a copy of the financial provisions and any other relevant terms of such Commercialization Agreement.
9.2 JVP and Newco shall keep true and accurate records of gross sales of the PRODUCT by COMPANY, its AFFILIATES or permitted sub-licensees, the items deducted from the gross amount Net Revenues and Net Sales and any deductibles made in calculating same. Where JVP and/or Newco have Net Revenues and/or Net Sales, JVP and/or Newco, as the NSPcase may be, the NSP and the royalties payable to ELAN under Article V hereof. COMPANY shall deliver to ELAN EIS a written statement (the "Statement") thereof within sixty (60) days [...***...] following the end of each calendar quarter (or any part thereof in the first or last calendar quarter of this Agreement) for such calendar quarter. The said written statements shall set forth on a country-by-country basis, the calculation of the NSP from gross revenues during that calendar quarter, the applicable percentage rate, and a computation of the sums due to ELAN (“the Statement”thereof). The parties’ financial officers shall of EIS and JVP shall, [...***...], agree upon the precise format of the Statement.
2. 9.3 Payments due on NSP of the PRODUCT based Net Revenues and Net Sales on sales amounts in a currency other than United States US Dollars shall first be calculated in the foreign currency and then converted to United States US Dollars on the basis of the exchange rate in [ * ] = 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. effect for the purchase of United States US Dollars with such foreign currency quoted in the Wall Street Journal (or comparable publication if not quoted in the The Wall Street Journal) with respect to the sale of currency of the country of origin of such payment for the day prior to the date on which the payment by COMPANY is being made[...***...].
3. 9.4 Any income or other taxes which COMPANY and ELAN, if applicable, is JVP and/or its Affiliates (excluding Newco) are required by law to pay or withhold on behalf of the receiving party EIS with respect to royalties such Net Revenues and any other monies payable to such party Net Sales payments under this Agreement shall be deducted from the amount of such NSP Net Revenues and Net Sales payments. JVP and/or its Affiliates (excluding Newco), royalties and other monies due. COMPANY and ELAN, if applicableas the case may be, shall furnish the receiving party EIS with proof of such payments. Any such tax required to be paid or withheld shall be an expense of and borne solely by JVP and/or its Affiliates (excluding Newco), as the receiving party. COMPANY and ELAN, if applicablecase may be, shall promptly provide the receiving party EIS with a certificate or other documentary evidence to enable the receiving party EIS to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by JVP and/or its Affiliates (excluding Newco), as the paying partycase may be. Both parties The Parties will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax treaty or under any other applicable law, in order to enable JVP and/or its Affiliates (excluding Newco), as the paying party case may be, to make such payments to the receiving party EIS without any deduction or withholding.
49.5 Payment of monies hereunder shall be made by JVP and/or its Affiliates (excluding Newco), as the case may be to EIS within [...***...] days of [...***...] the Statement ("Due Date"). All payments due hereunder shall be made in U.S. Dollars.
9.6 All payments due hereunder shall be made to the designated bank account of ELAN EIS in accordance with such timely written instructions as ELAN EIS shall from time to time provide.
5. COMPANY 9.7 Without prejudice to EIS's other remedies hereunder, JVP and/or its Affiliates (excluding Newco), as the case may be, shall pay interest to ELAN EIS on sums not paid to EIS on the Due Date over the period from the Due Date until the date of actual payment (both before and after judgment) at [...***...] the rate Prime Rate publicly announced by Xxxxxx Guaranty Xxxxxxxx Trust Company of New York at its principal office at its prime on the Due Date (or best rate next to occur business day, if such date is not a business day) plus [ * ] [...***...]%, such interest payable on all late payments under this Agreement (applicable as of the date on which payment should have been made pursuant demand from time to the applicable provisions of this Agreement) from the date on which payment should have been made pursuant to the applicable provision until the date of paymenttime and compounded quarterly.
6. COMPANY shall provide ELAN with quarterly sales reports outlining the status of the PRODUCT in the TERRITORY, [ * ]. .
7. 9.8 For the one hundred and eighty (180) [...***...] day period following [...***...] the close [...***...] of each calendar year during the term of the this Agreement, ELAN and COMPANY will JVP and/or its Affiliates (excluding Newco), as the case may be, will, [...***...] provide each others EIS' independent certified accountants (reasonably acceptable to the other partyJVP) with such access, during regular business hours and upon reasonable prior request in [...***...] and subject to the confidentiality provisions as contained in this Agreement, to such party’s JVP's and/or its Affiliates (excluding Newco), as the case may be, books and records relating to the PRODUCT, solely for the purpose of verifying the accuracy and reasonable composition of the calculations hereunder for the calendar year then ended. [ * ] = 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.
8. 9.9 In the event that JVP and/or Newco, and/or an Affiliate of a discovery JVP and/or Newco, shall sell the Deferred Consideration Product or the Newco IP Product to any third party, or enter into any Commercialization Agreement with respect thereto with any third party, together with other products of a discrepancy JVP and/or Newco, and/or an Affiliate of JVP and/or Newco, by the method commonly known in the pharmaceutical industry as "bundling" and the price attributable to the Deferred Consideration Product or the Newco IP Product is less than the average price which exceeds [ * ] percent ([ * ]%) of the amount due or charged by a party for any periodwould have been attributable thereto on an "arms length" basis, the cost of such accountants Net Sales or Net Revenues attributable thereto hereunder shall be borne adjusted by the audited party; otherwise, such cost shall be borne by the auditing partyParties to reflect an average price on an "arms length" basis.
9. ELAN shall make (and where relevant shall procure that ELAN’s subcontractor shall make) that portion of its manufacturing facility where PRODUCT is manufactured, including all record and reference samples relating to the PRODUCT available for inspection by COMPANY’s duly qualified person or by the relevant governmental or regulatory authority. The investigation shall be limited to determining whether there is compliance with cGMP and other requirements of applicable law.
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