Common use of RIGHT OF AUDIT AND INSPECTION Clause in Contracts

RIGHT OF AUDIT AND INSPECTION. 9.1 Within the term of this Agreement and within one year after its termination, Emisphere shall not more than [***] each year have the right at its expense to have Lilly's independent certified public accountants inspect and audit Lilly's records for any of the two preceding years for the purpose of determining the accuracy of royalty payments. The independent certified accountants shall keep confidential any information obtained during such inspection and shall report to Emisphere only the amounts of Net Sales and royalties due and payable. Any such inspection of Lilly's records shall be at the expense of Emisphere, except that if any such inspection reveals a deficiency in the amount of the running royalty actually paid to Emisphere hereunder in any calendar year of [***] [***] or more of the amount of any running royalty actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Lilly. Any amount of deficiency shall be paid promptly to Emisphere. If such inspection reveals a surplus in the amount of running royalty actually paid to Emisphere by Lilly, Emisphere shall reimburse Lilly the surplus. 9.2 Within the term of this Agreement and within one year after its termination, Lilly shall not more than [***] each year have the right at its expense to have Emisphere's independent certified public accountants inspect and audit Emisphere's records and accompanying reports (and all associated documentation) for any of the two preceding years for the purpose of determining the accuracy of Emisphere's reported, [***] [***] and Costs with respect to any Research and Development Program. The independent certified public accountants shall keep confidential all materials subject to third-party confidentiality agreements and all materials not directly relevant to the purpose of their audit. Any such inspection of Emisphere's records shall be at the expense of Lilly, except that if any such inspection reveals an overpayment in the amount of such Costs paid to Emisphere hereunder in any calendar year of [***] or more of the amount of such Costs actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Emisphere instead of by Lilly. Any surplus over the Costs properly payable by Lilly to Emisphere shall be refunded promptly to Lilly. If such inspection reveals a deficit in the amount of the Costs properly payable to Emisphere by Xxxxx, Xxxxx shall pay the deficit to Emisphere. 9.3 In the event of any unresolved dispute regarding any alleged deficiency or overpayment of royalty payments or Cost payments hereunder, the matter will be referred to the independent firm of certified public accountants of [***] for a resolution of such dispute. The decision of said firm of certified public accountants shall be binding on the Parties.

RIGHT OF AUDIT AND INSPECTION. 9.1 Within the term of this Agreement and within one year after its termination, Emisphere shall not more than [*** * *] each year have the right at its expense to have Lilly's independent certified public accountants inspect and audit Lilly's records for any of the two preceding years for the purpose of determining the accuracy of royalty payments. The independent certified accountants shall keep confidential any information obtained during such inspection and shall report to Emisphere only the amounts of Net Sales and royalties due and payable. Any such inspection of Lilly's records shall be at the expense of Emisphere, except that if any such inspection reveals a deficiency in the amount of the running royalty actually paid to Emisphere hereunder in any calendar year of [* * ***] [***] ]% or more of the amount of any running royalty actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Lilly. Any amount of deficiency shall be paid promptly to Emisphere. If such inspection reveals a surplus in the Confidentiality Requested by Emisphere Technologies, Inc. SEC File No. 1-10615 amount of running royalty actually paid to Emisphere by Lilly, Emisphere shall reimburse Lilly the surplus. 9.2 Within the term of this Agreement and within one year after its termination, Lilly shall not more than [*** * *] each year have the right at its expense to have Emisphere's independent certified public accountants inspect and audit Emisphere's records and accompanying reports (and all associated documentation) for any of the two preceding years for the purpose of determining the accuracy of Emisphere's reported, [***] [*** * *] and Costs with respect to any Research and Development Program. The independent certified public accountants shall keep confidential all materials subject to third-party confidentiality agreements and all materials not directly relevant to the purpose of their audit. Any such inspection of Emisphere's records shall be at the expense of Lilly, except that if any such inspection reveals an overpayment in the amount of such Costs paid to Emisphere hereunder in any calendar year of [*** * *] or more of the amount of such Costs actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Emisphere instead of by Lilly. Any surplus over the Costs properly payable by Lilly to Emisphere shall be refunded promptly to Lilly. If such inspection reveals a deficit in the amount of the Costs properly payable to Emisphere by Xxxxx, Xxxxx shall pay the deficit to Emisphere. 9.3 In the event of any unresolved dispute regarding any alleged deficiency or overpayment of royalty payments or Cost payments hereunder, the matter will be referred to the independent firm of certified public accountants of [*** * *] for a resolution of such dispute. The decision of said firm of certified public accountants shall be binding on the Parties.

RIGHT OF AUDIT AND INSPECTION. 9.1 Within the term of this Agreement and within one year after its termination, Emisphere shall not more than [*****] each year have the right at its expense to have Lilly's a firm of independent certified public accountants inspect and audit Lilly's Novartis’s records for any of the two preceding years for the purpose of determining the accuracy of royalty payments. The auditors must be acceptable to Novartis whose acceptance shall not be unreasonably withheld. The independent certified accountants shall keep confidential any information obtained during such inspection and shall report to Emisphere only the amounts of Net Sales and royalties due and payable. Only those records that pertain to the Product need be shown to the auditors. Any such inspection of Lilly's Novartis’s records shall be at the expense of Emisphere, except that if any such inspection reveals a deficiency in the amount of the running royalty actually paid to Emisphere hereunder in any calendar year of [***] [***] or more of the amount of any running royalty actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by LillyNovartis. Any amount of deficiency shall be confirmed by Novartis and paid promptly to Emisphere. If such inspection reveals a surplus in the amount of running royalty actually paid to Emisphere by LillyNovartis, Emisphere shall reimburse Lilly Novartis the surplus. 9.2 Within the term of this Agreement and within one year after its termination, Lilly Novartis shall not more than [*****] each year have the right at its expense to have Emisphere's a firm of independent certified public accountants inspect and audit Emisphere's ’s records and accompanying reports (and all associated documentation) for any of the two preceding years for the purpose of determining the accuracy of Emisphere's ’s reported, [***] [***] and Costs with respect to any Research and Development Program. The auditors must be acceptable to Emisphere whose acceptance shall not be unreasonably withheld. The independent certified public accountants shall keep confidential all materials subject to third-party confidentiality agreements and all materials not directly relevant to the purpose of their audit. Only those records that pertain to the Product need be shown to the auditors. Any such inspection of Emisphere's ’s records shall be at the expense of LillyNovartis, except that if any such inspection reveals an overpayment in the amount of such Costs costs paid to Emisphere hereunder in any calendar year of [*****] or more of the amount of such Costs actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Emisphere instead of by LillyNovartis. Any surplus over the Costs properly payable by Lilly Novartis to Emisphere shall be confirmed by Emisphere and refunded promptly to LillyNovartis. If such inspection reveals a deficit in the amount of the Costs properly payable to Emisphere by XxxxxNovartis, Xxxxx Novartis shall pay the deficit to Emisphere. 9.3 In the event of any unresolved dispute regarding any alleged deficiency or overpayment of royalty payments or Cost payments hereunder, the matter will be referred to the independent firm of certified public accountants of [***] mutually accepted by both parties for a resolution of such dispute. The decision of said firm of certified public accountants shall be binding on the Parties.

RIGHT OF AUDIT AND INSPECTION. 9.1 Within the term of this Agreement and within one year after its termination, Emisphere shall not more than [*** * *] each year have the right at its expense to have Lilly's independent certified public accountants inspect and audit Lilly's records for any of the two preceding years for the purpose of determining the accuracy of royalty payments. The independent certified accountants shall keep confidential any information obtained during such inspection and shall report to Emisphere only the amounts of Net Sales and royalties due and payable. Any such inspection of Lilly's records shall be at the expense of Emisphere, except that if any such inspection reveals a deficiency in the amount of the running royalty actually paid to Emisphere hereunder in any calendar year of [* * ***] [***] ]% or more of the amount of any running royalty actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Lilly. Any amount of deficiency shall be paid promptly to Emisphere. If such inspection reveals a surplus in the amount of running royalty actually paid to Emisphere by Lilly, Emisphere shall reimburse Lilly the surplus. 9.2 Within the term of this Agreement and within one year after its termination, Lilly shall not more than [*** * *] each year have the right at its expense to have Emisphere's independent certified public accountants inspect and audit Emisphere's records and accompanying reports (and all associated documentation) for any of the two preceding years for the purpose of determining the accuracy of Emisphere's reported, [***] [*** * *] and Costs with respect to any Research and Development Program. The independent certified Confidentiality Requested by Emisphere Technologies, Inc. SEC File No. 1-10615 public accountants shall keep confidential all materials subject to third-party confidentiality agreements and all materials not directly relevant to the purpose of their audit. Any such inspection of Emisphere's records shall be at the expense of Lilly, except that if any such inspection reveals an overpayment in the amount of such Costs paid to Emisphere hereunder in any calendar year of [* * ***] ]% or more of the amount of such Costs actually due to Emisphere hereunder, then the expense of such inspection shall be borne solely by Emisphere instead of by Lilly. Any surplus over the Costs properly payable by Lilly to Emisphere shall be refunded promptly to Lilly. If such inspection reveals a deficit in the amount of the Costs properly payable to Emisphere by Xxxxx, Xxxxx shall pay the deficit to Emisphere. 9.3 In the event of any unresolved dispute regarding any alleged deficiency or overpayment of royalty payments or Cost payments hereunder, the matter will be referred to the independent firm of certified public accountants of [*** * *] for a resolution of such dispute. The decision of said firm of certified public accountants shall be binding on the Parties.