Common use of Royalty Payments Reports and Records Clause in Contracts

Royalty Payments Reports and Records. 4.1 HMR shall deliver to Sepracor within [**] days following the end of each Payment Period, beginning with the first Payment Period, a written report (the "Royalty Statement") describing, for the applicable Payment Period: (a) the gross sales during the Payment Period for all Products; (b) the Net Sales during the Payment Period for all Products; and Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. (c) the calculation used to determine the total Royalties due for the Payment Period. 4.2 Each Royalty Statement for a Payment Period required by Section 4.1 above shall be accompanied by full payment to Sepracor, made in accordance with Section 4.3, of Royalties and any interest that may have accrued in accordance with Articles 3 and 4. 4.3 With regard to any payments due to Sepracor, the following shall apply: (a) All payments to Sepracor pursuant to this Agreement shall be made by wire transfer, to Fleet Bank of Massachusetts, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (ABA #000000000) to Account No. [**] or such other bank or account as Sepracor may from time to time designate in writing. All such payments shall be made in Dollars. (b) Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the immediately succeeding Business Day. (c) Payments hereunder shall be considered to be made as of the day on which they are received in Sepracor's designated bank account. (d) All payments due to Sepracor hereunder but not paid by HMR on the due date thereof shall bear interest at the rate which is the lesser of: (i) LIBOR plus two percent (2%) per annum; and (ii) the maximum lawful interest rate permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full. 4.4 Any income or other taxes which HMR is required by law to pay or withhold on behalf of Sepracor with respect to Royalties, and any interest thereon, payable to Sepracor under this Agreement, shall be deducted from the amount of such Royalties and interest due, and paid or withheld, as appropriate, by HMR on behalf of Sepracor. Any such tax required to be paid or withheld shall be an expense of, and borne solely by, Sepracor. The previous two sentences notwithstanding, the parties hereto will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax laws or under any other applicable law, in order to enable HMR to make such payments to Sepracor without any deduction or withholding. 4.5 HMR shall keep and maintain, and shall cause its Affiliates and its Licensees to keep and maintain, complete and accurate records and books of account in sufficient detail and form so as to enable Royalties and any interest payable to be determined, including, but not limited to, true and accurate records of sales of Products and calculations of Net Sales and Royalties. Sepracor shall have the right to audit the records of HMR at its own expense (except as otherwise provided in Section 4.6) using HMR's independent certified accountants unless good cause can be shown as to why such accountants should not be used, in which case Sepracor may elect to use any nationally recognized firm of independent certified accountants to whom HMR has shown no good cause objection. Such accountants will have access on reasonable notice to HMR and its Affiliates' and Licensees' records during reasonable business hours for the purpose of verifying the Royalties and any interest payable as provided in this Agreement for the two preceding years. Notwithstanding the foregoing, this right may not be exercised more than once in any calendar year, and once a calendar year is audited it may not be reaudited, and said accountant shall disclose to Sepracor only information relating solely to the accuracy of the Royalty Statements provided to Sepracor and the payments made to Sepracor under this Agreement. 4.6 Any adjustment required as a result of an audit conducted under this Article shall be made within twenty-five (25) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit. If any underpayment by HMR is greater than ten percent (10%) of the amount previously paid to Sepracor for the relevant Payment Period, the costs and expenses of the audit shall be paid for by HMR. In the case of overpayment, HMR may elect, at its option, to either offset any Royalties and any interest payable to Sepracor by the amount of the overpayment or request reimbursement and HMR shall, within [**] Business Days of issuance of the auditor's written report, provide written notice to Sepracor of its election regarding any overpayment. If HMR elects reimbursement of an overpayment, Sepracor shall have the longer of a) ten (10) Business Days from its receipt of HMR's written notice, or b) ten (10) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit, to send HMR the requested overpayment reimbursement. 4.7 No part of any amount payable to Sepracor under this Agreement may be reduced due to any counterclaim, set-off, adjustment or other right which HMR might have against Sepracor, any other party or otherwise, except as expressly stated to the contrary in this Agreement.

Royalty Payments Reports and Records. 4.1 HMR Sepracor shall deliver to Sepracor RPR within [**] days following the end of each Payment Period, beginning with the first Payment Period, a written report (the "Royalty Statement") describingdescribing in sufficient detail, for the applicable Payment Period: (a) the calculation of Net Sales from the gross sales during the Payment Period revenues for all Products;; and (b) the Net Sales during the Payment Period for all Products; and Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. (c) the calculation used to determine the total Royalties due for the Payment Period. 4.2 Each Royalty Statement for a Payment Period required by Section 4.1 above shall be accompanied by full payment to Sepracor, made in accordance with Section 4.3, RPR of Royalties and any interest that may have accrued in accordance with the payments due to RPR under Articles 3 and 4. 4.3 With regard to any payments due to SepracorRPR, the following shall apply: (a) All payments to Sepracor RPR pursuant to this Agreement shall be made by wire transfer, transfer and in accordance with written instructions to Fleet Bank of Massachusetts, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (ABA #000000000) to Account No. [**] or such other bank or account as Sepracor may from time to time designate be provided by RPR in writingaccordance with Article 15. All such payments shall be made in United States Dollars ("Dollars"). (b) Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the immediately succeeding Business Day. (c) Payments hereunder shall be considered to be made as of the day on which they are received in SepracorRPR's designated bank account. (d) All payments due to Sepracor RPR hereunder but not paid by HMR Sepracor on the due date thereof shall bear interest at the rate which is the lesser of: (i) LIBOR plus two percent (2%) per annum; and (ii) the maximum lawful interest rate permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full. 4.4 Any income or other taxes which HMR Sepracor is required by law to pay or withhold on behalf of Sepracor RPR with respect to Royalties, and any interest thereon, payable to Sepracor RPR under this Agreement, Agreement shall be deducted from the amount of such Royalties and interest due, and paid or withheld, as appropriate, by HMR Sepracor on behalf of SepracorRPR. In such event, Sepracor shall timely pay or remit all amounts so withheld to the appropriate taxing authorities on RPR's behalf and promptly provide RPR with a written tax receipt for such amount issued by such taxing authority. Sepracor shall obtain for RPR, at its request, any other documentation, receipt or certificate necessary or desirable for RPR to apply for and/or receive any corresponding tax refund or credit under any applicable tax law or treaty. Any such tax required to be paid or withheld shall be an expense of, of and borne solely by, Sepracorby RPR. The previous two foregoing sentences notwithstanding, the parties hereto will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax laws or under any other applicable law, in order to enable HMR Sepracor to make such payments to Sepracor RPR without any deduction or withholding. 4.5 HMR Sepracor shall keep and maintain, and shall cause its Affiliates and its Licensees to keep and maintain, complete and accurate records and books of account in accordance with Generally Accepted Accounting Principles in sufficient detail and form so as to enable Royalties amounts payable under Articles 3 and any interest payable 4 to be determined, including, including but not limited to, true and accurate records of sales of Products and calculations of Net Sales and Royalties. Sepracor RPR shall have the right right, at its own cost and expense, to audit the records of HMR at Sepracor and its own expense (except as otherwise provided in Section 4.6) Affiliates using HMR's independent certified accountants unless good cause can be shown as to why such accountants should not be used, in which case Sepracor may elect to use any a nationally recognized firm of independent certified accountants reasonably acceptable to whom HMR has shown no good cause objectionSepracor. Such accountants will have access on reasonable notice to HMR Sepracor and its Affiliates' and Licensees' records during reasonable business hours for the sole purpose of verifying the Royalties and any interest payable as provided in this Agreement for the two three preceding yearsyears provided, however, that if there is a good faith dispute between the parties continuing at the end of any such three (3) year period with respect to such books or records, then the time period hereunder to maintain such books and records under dispute and for any subsequent period shall be extended until such time as the dispute is finally resolved. Notwithstanding the foregoing, this This right may not be exercised more than once in any calendar year, and once a calendar year is audited it may not be reaudited, provided that if there is a dispute as to any audited year, such year and said any subsequent year may be reaudited until such time as the dispute is resolved. Said accountant shall disclose to Sepracor RPR only information relating solely to the accuracy of the Royalty Statements provided to Sepracor RPR and the payments made to Sepracor RPR under this Agreement. The provisions of this Section 4.5 shall survive the expiration or sooner termination of this Agreement. 4.6 Any adjustment required underpayment determined as a result of an audit conducted under this Article shall be made paid to RPR within twenty-five (25) days after the date on which the accountant conducting the audit issues a written report to RPR and Sepracor and HMR containing the results of the audit. If any underpayment by HMR Sepracor is greater than ten percent (10%) of the amount previously paid to Sepracor RPR for the relevant Payment Period, the costs and expenses of the audit shall be paid for by HMRSepracor. In the case of overpayment, HMR may elect, at its option, to either offset any Royalties and any interest payable to Sepracor by the amount of the Any overpayment or request reimbursement and HMR shall, within [**] Business Days of issuance of the auditor's written report, provide written notice to Sepracor of its election regarding any overpayment. If HMR elects reimbursement of an overpayment, Sepracor shall have the longer of a) ten (10) Business Days from its receipt of HMR's written notice, or b) ten (10) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit, to send HMR the requested overpayment reimbursement. 4.7 No part of any amount payable to Sepracor under this Agreement may be reduced due to any counterclaim, set-off, adjustment or other right which HMR might have against Sepracor, any other party or otherwise, except as expressly stated credited to the contrary in this Agreementnext payment to RPR due hereunder.

Royalty Payments Reports and Records. 4.1 HMR 7.1 XXXXXXX shall keep and shall cause its Affiliates and Licensees to keep, and to maintain for at least two years, true and accurate records of sales of Product and Net Sales and the royalties payable to NANO under Article 6 hereof and shall deliver to Sepracor within [**] days NANO a written statement thereof on or before the sixtieth (60th) day following the end of each Payment Period, beginning with calendar quarter (or any part thereof in the first Payment Periodor last calendar quarter of this Agreement) for such calendar quarter. Said written statements shall set forth on a country-by-country basis, a written report (the "Royalty Statement") describing, for the applicable Payment Period: (a) the gross sales during the Payment Period for all Products; (b) calculation of the Net Sales from gross revenues for the Product during that calendar quarter, the Payment Period applicable percentage royalty rates, and a computation of the royalties due to Certain portions of this Exhibit have been omitted pursuant to a request for all Products; confidentiality. Such omitted portions, which are marked with brackets [ ] and Confidential Materials omitted and an asterisk*, have been separately filed separately with the Securities and Exchange Commission. Asterisks denote omissionsNANO (the “Royalty Statement”). Upon NANO’s receipt of each Royalty Statement from XXXXXXX, NANO will send valid VAT invoices to XXXXXXX confirming the royalties due and payable by XXXXXXX under this Agreement. (c) 7.2 All royalty payments to be made by XXXXXXX to NANO shall be converted into Dollars at the calculation used to determine the total Royalties due average rate of exchange for the Payment Period. 4.2 Each Royalty Statement calendar quarter for a Payment Period required which royalty payments are being remitted according to XXXXXXX’x normal procedures, as consistently applied by Section 4.1 above XXXXXXX for its other products (which procedures shall be accompanied by full payment subject to SepracorNANO’s review and approval, made in accordance with Section 4.3such approval not to be unreasonably withheld), of Royalties and any interest that may have accrued in accordance with Articles 3 and 4. 4.3 With regard to any payments due to Sepracor, the following shall apply: (a) All payments to Sepracor pursuant to this Agreement shall be made by wire transfertransfer to a designated NANO account on or before the sixtieth (60th) day following the end of each XXXXXXX accounting quarter. In the event that royalties are payable with respect to Net Sales in a country whose currency cannot be freely converted to Dollars, to Fleet Bank of Massachusetts, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (ABA #000000000) to Account No. [**] or such other bank or account as Sepracor may from time to time designate in writing. All such payments currency shall be made converted in Dollarsaccordance with the normal procedures consistently applied by XXXXXXX (which procedures shall be subject to NANO’s review and approval, such approval not to be unreasonably withheld). (b) Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the immediately succeeding Business Day. (c) Payments hereunder shall be considered to be made as of the day on which they are received in Sepracor's designated bank account. (d) All payments due to Sepracor hereunder but not paid by HMR on the due date thereof shall bear interest at the rate which is the lesser of: (i) LIBOR plus two percent (2%) per annum; and (ii) the maximum lawful interest rate permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full. 4.4 7.3 Any income or other taxes which HMR XXXXXXX is required by law to pay or withhold on behalf of Sepracor NANO with respect to Royalties, royalties and any interest thereon, other monies payable to Sepracor NANO under this Agreement, Agreement shall be deducted from the amount of such Royalties royalties and interest monies due, and paid or withheld, as appropriate, by HMR on behalf . XXXXXXX shall furnish NANO with proof of Sepracorsuch payments. Any such tax required to be paid or withheld shall be an expense of, of and borne solely by, Sepracorby NANO. XXXXXXX shall promptly provide NANO with a certificate or other documentary evidence to enable NANO to support a claim for a refund or a foreign tax credit with respect to any such tax so withheld or deducted by XXXXXXX. The previous two sentences notwithstanding, the parties hereto will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax laws treaty or under any other applicable law, in order to enable HMR XXXXXXX to make such payments to Sepracor NANO without any deduction or withholding. 4.5 HMR shall keep and maintain, and shall cause its Affiliates and its Licensees to keep and maintain, complete and accurate records and books of account in sufficient detail and form so as to enable Royalties and any interest payable to be determined, including, but not limited to, true and accurate records of sales of Products and calculations of Net Sales and Royalties. Sepracor 7.4 NANO shall have the right to audit the records of HMR at its own expense (except as otherwise provided in Section 4.6) using HMR's nominate an independent certified accountants unless good cause can be shown as public accountant acceptable to why such accountants should not be usedand approved by XXXXXXX who shall have access, in which case Sepracor may elect to use any nationally recognized firm of independent certified accountants to whom HMR has shown no good cause objection. Such accountants will have access on reasonable notice notice, to HMR XXXXXXX and its Affiliates' and ’ or Licensees' ’ records during reasonable business hours for the purpose of verifying the Royalties and any interest royalties payable as provided in this Agreement for the two preceding years. Notwithstanding the foregoing, this This right may not be exercised more than once in any calendar year, and once a calendar year is audited it may not be reaudited, and said accountant shall disclose to Sepracor NANO only information relating solely to the accuracy of the Royalty Statements provided to Sepracor NANO and the royalty payments made to Sepracor NANO under this Agreement. 4.6 7.5 Any adjustment required as a result of an audit conducted under this Article Section 7.4 shall be made within twenty-five (25) days after the date on which the accountant conducting the audit issues a written report to Sepracor NANO and HMR XXXXXXX containing the results of the audit. If Any underpayment by XXXXXXX shall bear interest from Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Securities and Exchange Commission. the date that such amount should have been paid to NANO as royalties to the date that the underpayment is actually paid to NANO by XXXXXXX. The interest rate shall be the prime interest rate published in the Wall Street Journal at the close of business on the day prior to the date the underpayment is made, plus two percent (2%). In addition, if any underpayment by HMR XXXXXXX is greater than ten five percent (105%) of the amount previously paid to Sepracor NANO for the relevant Payment Periodperiod, the costs and expenses of the audit shall be paid for by HMR. In the case of overpayment, HMR may elect, at its option, to either offset any Royalties and any interest payable to Sepracor by the amount of the overpayment or request reimbursement and HMR shall, within [**] Business Days of issuance of the auditor's written report, provide written notice to Sepracor of its election regarding any overpayment. If HMR elects reimbursement of an overpayment, Sepracor shall have the longer of a) ten (10) Business Days from its receipt of HMR's written notice, or b) ten (10) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit, to send HMR the requested overpayment reimbursementXXXXXXX. 4.7 No part 7.6 All payments due hereunder shall be made to the designated bank account of any amount payable EPIL in accordance with such timely written instructions as NANO shall from time to Sepracor time provide. 7.7 Each payment due from XXXXXXX to NANO under this Agreement may be reduced shall bear interest from the due to any counterclaimdate of such payment at the prime rate published in the Wall Street Journal on the due date for such payment plus two percent (2%), set-off, adjustment or other right which HMR might have against Sepracor, any other party or otherwise, except as expressly stated to provided XXXXXXX does not make such payment within thirty (30) days following the contrary in this Agreementdue date for such payment.

Royalty Payments Reports and Records. 4.1 5.1 HMR shall deliver to Sepracor within [**] days following the end of each Payment Period, beginning with the first Payment Period, a written report (the "Royalty Statement") describing, on a country-by-country basis, for the applicable Payment Period: (a) the gross sales during the Payment Period for all Products; (b) the Net Sales during the Payment Period for all Products, and the exchange rate used to convert any currency other than Dollars into Dollars; and Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.and (c) the calculation used to determine the total Royalties due for the Payment Period. 4.2 5.2 Each Royalty Statement for a Payment Period required by Section 4.1 5.1 above shall be accompanied by full payment to Sepracor, made in accordance with Section 4.35.3, of Royalties and any interest that which may have accrued in accordance with Articles 3 4 and 45. 4.3 5.3 With regard to any payments due to Sepracor, the following shall apply: (a) All payments to Sepracor pursuant to this Agreement shall be made by wire transfer, to Fleet Bank of Massachusetts, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (ABA #000000000) to Account No. [**] or such other bank or account as Sepracor may from time to time designate in writing. All such payments shall be made in Dollars. (b) If Net Sales of any Product for a Payment Period is stated in a currency other than Dollars, then, for the purpose of determining the amount of Royalties payable to Sepracor such Net Sales shall be converted into Dollars using an average exchange rate between those two currencies during the Payment Period for which such Royalties become due, wherein such calculated average exchange rate is calculated as the average of the exchange rates most recently quoted in the Wall Street Journal in New York on or before each of the last days for (i) each month in the Payment Period, and (ii) the last month in the immediately preceding Payment Period. If no such exchange rates have been quoted in the Wall Street Journal in New York at any time during the twelve (12) month period preceding the date on which such Royalties become due, then such Net Sales shall be converted to Dollars at the average exchange rate used by BankBoston during the Payment Period. (c) Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the immediately succeeding Business Day. (cd) Payments hereunder shall be considered to be made as of the day on which they are received in Sepracor's designated bank account. (de) All payments due to Sepracor hereunder but not paid by HMR on the due date thereof shall bear interest at the rate which is the lesser of: (i) LIBOR plus two percent (2%) per annum; and (ii) the maximum lawful interest rate permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full. 4.4 5.4 Any income or other taxes which HMR is required by law to pay or withhold on behalf of Sepracor with respect to Royalties, and any interest thereon, payable to Sepracor under this Agreement, shall be deducted from the amount of such Royalties and any interest due, and paid or withheld, as appropriate, by HMR on behalf of Sepracor. Any such tax required to be paid or withheld shall be an expense of, of and borne solely by, by Sepracor. The previous two sentences notwithstanding, the parties hereto will reasonably cooperate in completing and filing documents required under the provisions of any applicable tax laws or under any other applicable law, in order to enable HMR to make such payments to Sepracor without any deduction or withholding. 4.5 5.5 HMR shall keep and maintain, and shall cause its Affiliates Affiliates, Licensees and its Licensees assigns to keep and maintain, complete and accurate records and books of account in sufficient detail and form so as to enable Royalties and any interest payable to be determined, including, including but not limited to, true and accurate records of sales of Products and calculations of Net Sales and Royalties. Sepracor shall have the right to audit the records of HMR at its own expense (except as otherwise provided in Section 4.65.6) using HMR's independent certified accountants unless good cause can be shown as to why such accountants should not be used, in which case Sepracor may elect to use any nationally recognized firm of independent certified accountants to whom HMR has shown no good cause objection. Such accountants will have access on reasonable notice to HMR and its Affiliates' and Licensees' records during reasonable business hours for the purpose of verifying the Royalties and any interest payable as provided in this Agreement for the two preceding years. Notwithstanding the foregoing, this right may not be exercised more than once in any calendar year, and once a calendar year is audited it may not be reaudited, and said accountant shall disclose to Sepracor only information relating solely to the accuracy of the Royalty Statements provided to Sepracor and the payments made to Sepracor under this Agreement. 4.6 5.6 Any adjustment required as a result of an audit conducted under this Article shall be made within twenty-five (25) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit. If any underpayment by HMR is greater than ten percent (10%) of the amount previously paid to Sepracor for the relevant Payment PeriodPeriod(s), the costs and expenses of the audit shall be paid for by HMR. In the case of overpayment, HMR may elect, at its option, to either offset any Royalties and any interest payable to Sepracor by the amount of the overpayment or request reimbursement and HMR shall, within [**] ten (10) Business Days of issuance of the auditor's written report, provide written notice to Sepracor of its election regarding any overpayment. If HMR elects reimbursement of an overpayment, Sepracor shall have the longer of a) ten (10) Business Days from its receipt of HMR's written notice, or b) ten twenty-five (1025) days after the date on which the accountant conducting the audit issues a written report to Sepracor and HMR containing the results of the audit, to send HMR the requested overpayment reimbursement. 4.7 5.7 No part of any amount payable to Sepracor under this Agreement may be reduced due to any counterclaim, set-off, adjustment or other right which HMR might have against Sepracor, any other party or otherwise, except as expressly stated to the contrary in this Agreement.