Royalty. Beglend shall pay royalties to InNexus equal to 3% of Net Sales Revenue, calculated and payable as follows: (a) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold; (b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period"); (c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties; (d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year; (e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year; (f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus; (g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided; (h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and (i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.
Appears in 5 contracts
Samples: Development and License Agreement (Innexus Biotechnology Inc), Development and License Agreement (Innexus Biotechnology Inc), Development and License Agreement (Innexus Biotechnology Inc)
Royalty. Beglend shall pay royalties to InNexus equal to 3% of Net Sales Revenue, calculated and payable as follows:
(a) any Royalty payable hereunder Upon the Commencement of Commercial Production, the Optionee shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;pay to the Optionor the Royalty.
(b) Installments of the period for which Beglend is required Royalty payable shall be paid by the Optionee to pay a Royalty hereunder shall commence the Optionor immediately upon the first Launch receipt by the Optionee of Product in a particular Market Areathe payment from the smelter, and shall continue for refinery or other place of treatment of the patent life proceeds of any Patents comprising sale of the Licensed Technology minerals, ore, concentrates or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (other product from the "Royalty Payment Period");Property.
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 Within 120 days after the end of each such quarterfiscal year, and shall, when calculating commencing with the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c)which Commencement of Commercial Production occurs, adjust the installment payable accounts of the Optionee relating to operations on the Property and the statement of operations, which shall include the statement of calculation of the Royalty for the final quarter in each fiscal year to reflect Beglend's estimate last completed, shall be audited by the auditors of the actual amount payable, Optionee at its expense. The Optionor shall have 45 days after accounting for each receipt of such statements to question the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed accuracy thereof in writing between and, failing such objection, the parties;statements shall be deemed to be correct and unimpeachable thereafter.
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as If such audited financial statements disclose any overpayment of the last day of Royalty by the immediately preceding Optionee during the fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate amount of the overpayment shall be deducted from future installments of Royalty payable with respect to each such Product and each such Market Area for such year;payable.
(e) Beglcnd will If such audited financial statements disclose any underpayment of the Royalty by the Optionee during the year, the amount thereof shall be paid to the Optionor forthwith after determination thereof.
(f) The Optionee agrees to maintain up to for each mining operation on the Property, up-to-date and complete records for relating to the production and sale of Products in each Market Area minerals, ore, bullion and other product from the Property, including accounts, records, statements, the amount of free Products statements and sample Products distributed, Product returns relating to sales treatment and marketing smelting arrangements of the Productsuch product, and InNexus the Optionor or its agent agents shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accountsrecords, records statements and statements returns and make copies thereof at their its own expense for the purpose of verifying the amount of the Royalty payments to be made by Beglend the Optionee to InNexus the Optionor pursuant hereto; and InNexus . The Optionor shall have the right at its own expense to have such accounts audited by independent auditors at its own expense once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.
Appears in 3 contracts
Samples: Property Option Agreement (First American Silver Corp.), Property Option Agreement (First American Silver Corp.), Property Option Agreement (First American Silver Corp.)
Royalty. Beglend In addition to the Base Supply Price, RELIANT shall pay royalties to InNexus equal to 3% PRONOVA for the supply of the API (including any API supplied by a Third Party Manufacturer under Section 5.12(c) or 5.12(d)) for the Product and each Additional Product as a contingent supply price in the form of a royalty fee. The royalty fee shall be as follows: (i) in respect of the license of the Patents hereunder, [***] percent ([***]%) of the Net Sales Revenueof the Product until midnight of the day of expiration of the last to expire of the Patents; and (ii) in respect of the license of the Product Know-How hereunder, calculated and payable as follows:
[***] percent (a[***]%) any Royalty payable hereunder of the Net Sales of the Product during the term of this Agreement. The royalty fees for each Additional Product, based on the Net Sales for each such Additional Product, are set out in Schedule 7.2. The royalty fees for each Additional Product shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) based [***] in respect of the period for which Beglend is required to pay a Royalty hereunder shall commence upon license of Patents applicable thereto and [***] in respect of the first Launch license of Product in a particular Market Area, Know-How applicable thereto. The royalty fee for Products and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments Additional Products shall be payable by chequeto PRONOVA on a semi-annual basis, cash, or bank draft, to InNexus' order, and shall be paid within 180 days so that the fee for the first six (6) months of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be Commercialization Year is payable within 90 thirty (30) days after the end of each such quarterthis period, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable fee for the final quarter in last six (6) [***]: Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. months of each fiscal year to reflect Beglend's estimate of the actual amount payable, Commercialization Year is payable thirty (30) days after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after that period. At the first Launch of Productsame time as payments are made, Beglend shall deliver an external auditor agreeable to InNexus a statement indicatingboth parties shall, in reasonable detailat RELIANT’s cost, as of confirm the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent Sales. PRONOVA shall have the right at all reasonable timesto appoint an independent internationally recognized audit firm, including for a period of 12 months following the expiration or termination of this Agreementreasonably acceptable to RELIANT, to inspect such accountsaudit the books of account of RELIANT in order to determine whether Reliant has properly reported and accounted for any royalty payments due to PRONOVA pursuant to this Section 7.2. Audits may be performed during regular business hours, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it calendar year during the term and upon reasonable prior notice to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue RELIANT. The audit fees shall be equal to Net Sales borne by PRONOVA unless such auditor determines that the amount actually due PRONOVA, in the aggregate, exceeds the greater of (a) USD 50,000 and (b) seven and one-half percent (7.5%) of the Combination Product multiplied amounts paid by a fractionRELIANT hereunder, in which case the numerator of which is audit fees shall be borne by RELIANT, and PRONOVA shall be entitled to perform audits twice during the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationnext succeeding calendar year.
Appears in 3 contracts
Samples: License & Supply Agreement (Reliant Pharmaceuticals, Inc.), License & Supply Agreement (Reliant Pharmaceuticals, Inc.), License & Supply Agreement (Reliant Pharmaceuticals, Inc.)
Royalty. Beglend In addition to the Annual Rental, Lessee shall pay royalties to InNexus equal Lessor a Royalty of percent ( %) of the value of all Oil and Gas produced, sold, or saved from the Leased Premises, save and except Oil and Gas used by Lessee for development and operational purposes on the Leased Premises which Oil and Gas shall be royalty free. Lessor shall have the right to 3% of Net Sales Revenueelect on thirty- (30) days written notice to take Lessor's royalty in kind. When paid in value, calculated Royalties shall be due and payable as follows:
(a) any Royalty payable hereunder shall be calculated monthly on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; calendar month following the calendar month in which produced, sold, or saved. "Value" may, in the discretion of the Secretary, be calculated on the basis of the highest price paid or offered (whether calculated on the basis of short-or actual volume) at the time of production for the major portion of the Oil of the same gravity, and Gas, and/or natural gasoline, and/or all Royalty payments other hydrocarbon substances produced, sold, and saved from the area where the Leased Premises are situated, and the actual volume of the marketable product less the content of foreign substances as determined by the Authorized Officer. It is understood that, in determining the value for royalty purposes of products, such as natural gasoline, that are derived from treatment of Gas, a reasonable allowance for the cost of manufacture shall be payable by chequemade, cash, or bank draft, to InNexus' order, such allowances for the costs of manufacturing and transportation of such products shall be paid within 180 days no greater than two-thirds of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments value of the estimated amount of marketable product. When Royalty payments due for each fiscal quarter completed after the date of Launch of Producton Oil produced is paid in kind, which such royalty Oil shall be payable within 90 delivered, at such time as may be required by Lessor, in Lessee's tanks on the premises where produced as reasonably may be required by Lessor without cost to Lessor, unless otherwise agreed to by the Parties. Lessee shall not be required to hold such royalty Oil in storage longer than thirty (30) days after the end of each the calendar month in which such quarterOil is produced. Lessee in no manner shall be responsible or held liable for loss or destruction of such Oil in storage, and shallunless the loss or destruction is caused by Lessee's negligence and/or willful misconduct. When Royalty on Gas produced is paid in kind, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year such royalty Gas shall be delivered by Lessee to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties a mutually acceptable place in the currencies in gathering line or pipeline to which the revenues giving rise well is connected at no cost to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationLessor.
Appears in 3 contracts
Samples: Oil and Gas Lease, Oil and Gas Lease, Oil and Gas Lease
Royalty. Beglend shall In addition to the Purchase Price, Purchaser agrees to pay royalties to InNexus Seller a royalty fee equal to 32% of Net Sales Revenue, calculated and payable as follows:
(aif any) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) are derived from Purchaser’s sales of the period for which Beglend is required to pay a Royalty hereunder shall commence upon Products from the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area Transferred Assets (the "“Royalty Payment Period");
(cFee”) the first Royalty payment shall be calculated for the broken a period commencing from beginning as of the date of Closing and continuing until the first Launch tenth (10th) anniversary of Product to and including the last day of Beglend's fiscal year in which Closing Date (the Launch of Product took place; and any succeeding “Royalty payments Term”). Such Royalty Fee shall be calculated from the first day until the last day of the corresponding fiscal year; cumulated, will be in U.S. Dollars and all Royalty payments shall be payable by cheque, cash, or bank draft, paid to InNexus' order, and shall be paid Seller within 180 forty-five (45) days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each calendar quarter during the Royalty Term; it being understood that the Royalty Fee payments shall be reconciled, to the extent necessary, in any subsequent quarter during the Royalty Term or at the end of the Royalty Term, as the case may be, based on the actual Net Sales realized by Purchaser. Purchaser shall provide Seller with a written statement setting forth the number of Product units sold and the Royalty Fee due during each calendar quarter during the Royalty Term within thirty (30) days of the end of each calendar quarter. The Purchaser shall maintain and keep for a period of not less than two (2) years complete and accurate records in sufficient detail to enable any accrued royalties to be calculated. During normal business hours and with reasonable advance written notice but in no event less than twenty (20) Business Days and not exceeding once a year during the Royalty Term, Purchaser shall permit a Representative of Seller to have access to such quarterrecords of Purchaser as may be necessary to verify the accuracy of the records related to the Royalty Fees paid to Seller (in each case, a “Seller Audit”); provided however that any such Seller Audit must take place no more than one (1) year following the end of the calendar year during the Royalty Term at issue and will be at Seller’s expense unless the mutually agreed upon accounting firm audit finds that the royalties have been under reported by more than 5%, in which case Buyer will pay for the audit. Promptly following Seller’s completion of any such Seller Audit (but in no event later than thirty (30) days following such completion), Seller shall deliver to Purchaser written notice of the results of such Seller Audit, including a description in reasonable detail of any proposed adjustments to the Royalty Fees actually paid to Seller for the applicable period covered by such Seller Audit. Seller and Purchaser will negotiate in good faith to resolve any dispute over Seller’s proposed adjustments to the Royalty Fees, provided that if any such dispute is not resolved within thirty (30) days following receipt by Purchaser of the proposed adjustments, either Purchaser or Seller may engage a mutually agreed upon accounting firm with a national presence (the “Accounting Firm”) on behalf of Purchaser and Seller to resolve any remaining dispute of Seller’s proposed adjustments, which resolution will be final. The Accounting Firm will be instructed to deliver its written determination within thirty (30) days. The Accounting Firm will address only those items in dispute and may not assign a value greater than the greatest value for such item claimed by either party or a value smaller than the smallest value for such item claimed by either party. The fees and expenses of the Accounting Firm will be shared by the parties in inverse proportion to the percentage of the disputed amount determined by the Accounting Firm to be in favor of Seller, on the hand, and shallPurchaser, when calculating on the other hand. The calculation and amount of the Royalty Fees for the period covered by any Seller Audit will become final and binding on all parties upon the earliest of (i) Seller’s delivery of notice to Purchaser of the results of the Seller Audit whereby such results reflect Seller’s agreement with the amount of Royalty due for that fiscal year in accordance Fees actually paid to Seller, (ii) the mutual agreement of Seller and Purchaser with sub-section 6.5(c)respect to any of Seller’s proposed adjustments to the Royalty Fees actually paid to Seller, adjust and (iii) the installment payable for Accounting Firm’s final resolution of any disputes submitted to the Accounting Firm. Promptly after such final quarter in each fiscal year to reflect Beglend's estimate determination of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records Fees for the production and sale of Products in each Market Area including accounts, records, statements, period covered by any Seller Audit: (x) if such finally determined Royalty Fee amount exceeds the amount of free Products and sample Products distributedactually paid to Seller, Product returns relating then Purchaser will pay to sales and marketing of the Product, and InNexus Seller an amount equal to such excess within thirty (30) days after such final determination; or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying (ii) if the amount of Royalty payments Fees actually paid to be made by Beglend Seller exceed such finally determined Royalty Fee amount, then Seller will refund to InNexus pursuant hereto; and InNexus shall have the right at its own expense Purchaser an amount equal to have such accounts audited by independent auditors once each year;
excess within thirty (f30) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationsuch final determination.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Athenex, Inc.)
Royalty. Beglend Subject to the other terms and conditions of this Agreement (and, in particular , the provisions of Section 7.3(b) and Section 7.3(c) below), Chiron shall pay royalties Cubist a royalty with respect to InNexus each Licensed Product sold by Chiron or its Affiliates equal to 3% a percentage determined in accordance with the table below or in accordance with Sections 7.3(b) or 7.3(c) below, as applicable, taking into consideration the protection afforded by Cubist Patents at the relevant time, (such applicable percentage, the “Royalty Rate”), of Net Sales Revenuein any country within the Territory of units of such Licensed Product during each calendar quarter from and after the date of Commercial Launch in such country, calculated and payable as follows:
(a) any Royalty payable hereunder shall be calculated on a less the aggregate Transfer Price previously paid to Cubist for having supplied pursuant to the Supply Agreement such units of such Licensed Product that are sold by Product basis for each jurisdiction (each a "Market Area")in which any Chiron or its Affiliates during such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon calendar quarter: For purposes of this Section 7.3, the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed Royalty Year with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment all Licensed Products shall be calculated for the broken period commencing from commence on the date of Commercial Launch by Chiron or any of its Affiliates in any country within the first Launch Territory and end on December 31 of Product to and including the last day of Beglend's fiscal year in which the Commercial Launch of Product took place; and any occurred. Each succeeding Royalty payments Year shall be calculated from the first day until the last day commence on January 1 of the corresponding fiscal ensuing * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION year and end on December 31 of such year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year. Accordingly, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate determination of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense Year for the purpose of verifying determining the Royalty Rate which applies shall not be either on a Licensed Product-by-Licensed Product basis or on a country-by-country basis. The determination of the Royalty Rate pursuant to the table in this Section 7.3(a) (i.e. whether the Royalty Rate in left hand column or the right hand column in the table above applies) shall also not be made on a Licensed Product-by-Licensed Product basis or on a country-by-country basis, but, instead, shall be made based on the aggregate amount of annual Net Sales for all Licensed Products in all countries in the Territory. The determination of the amount of Royalty payments royalties due Cubist pursuant to this Section 7.3(a) shall be made on a Licensed Product-by-Licensed Product basis and on a country-by-country basis by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to multiplying the Royalty payable to InNexus hereunderRate that is applicable for any particular Royalty Year, as determined in accordance with the foregoing provisions of this Section 7.3(a), by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect arising from sales in each country within the relative contribution Territory of units of each Licensed Product and by Chiron or its Affiliates during each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales calendar quarter of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationapplicable Royalty Year.
Appears in 2 contracts
Samples: License Agreement (Cubist Pharmaceuticals Inc), License Agreement (Cubist Pharmaceuticals Inc)
Royalty. Beglend shall CORIXA shall, during the Royalty Payment Period defined below, pay royalties a Royalty to InNexus INNEXUS equal to 32 % of Net Sales Revenuefor each Product sold in a country in which the Product is covered by Valid Claims (“Market Area”), calculated and payable as follows:
(a) any Royalty Royalties payable hereunder herein shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is soldbasis;
(b) the The period for which Beglend CORIXA is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue continuing for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in the United States or in that Market Area (the "“Royalty Payment Period"”);
(c) the The first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of BeglendCORIXA's fiscal year in which the Launch of Product took place; and any . Any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all . All Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' INNEXUS’s order, and shall be paid within 180 days of the completion of BeglendCORIXA's fiscal year corresponding to that payment; provided that, notwithstanding ;
(d) Notwithstanding the foregoing, Beglend CORIXA shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(de) On or before 180 days following the end of each fiscal year of Beglend CORIXA after the first Launch of Product, Beglend CORIXA shall deliver to InNexus INNEXUS a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(ef) Beglcnd will CORIXA agrees to maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus INNEXUS or its agent their respective agents shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend CORIXA to InNexus INNEXUS pursuant hereto; and InNexus . INNEXUS shall have the right at its their own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend CORIXA making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus INNEXUS within 180 days after receipt by InNexus INNEXUS of the audited statement referred to in subsection 6.5(f) hereof; and any said payments. Any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose Sales of calculating RoyaltiesProduct between and among CORIXA, revenue its Affiliates and its sub licensees shall not be deemed subject to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated a Royalty. The obligation to pay Royalties more than royalties to INNEXUS under this Agreement is imposed only once in with respect to the same unit of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); andProduct;
(i) for For any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if. If, after good faith negotiations (not to exceed ninety (90) days in duration unless days, which can be extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue Sales shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds Product contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.;
Appears in 2 contracts
Samples: License Agreement (Innexus Biotechnology Inc), License Agreement (Innexus Biotechnology Inc)
Royalty. Beglend shall pay royalties to InNexus equal to 3% of Net Sales Revenue, calculated and payable as follows:
(a) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required Purchaser agrees to pay a royalty on the Patent and the Patent Application as follows: During the Royalty hereunder shall commence upon Period (as hereinafter defined), Purchaser will pay Seller a royalty of 4% on the first Launch $25,000,000 of Product in Purchaser's Net Sales (as hereinafter defined) and thereafter a particular Market Area, and shall continue royalty of 2% on Purchaser's Net Sales for the patent life Royalty Period, whether the Patent is issued or not. From and after the later of any Patents comprising the Licensed Technology quarter which contains the month which is one month following the issuance of the Patent or any Joint Patents the quarter which may hereafter contains the first anniversary of Closing, the royalty shall be filed with respect the higher of the royalty due based on Net Sales or $15,000 per quarter (the "Minimum Payment"); prior to such Product time or upon which such Product is if the Patent does not issue, the royalty shall be based in that Market Area only on Net Sales, with no Minimum Payment. Royalties accrue from the Closing Date, with the first royalty payment being due for Net Sales, if any, during the calendar quarter ended September 30, 2003. Payments of royalty shall be due for Net Sales from the Closing Date to the fifteenth anniversary date of the Closing Date (the "Royalty Payment Period");
. Net Sales shall mean Purchaser's gross receipts from the sale of the Device for pick-up trucks, trucks and vans, where the Device includes a U-shaped lifting arm, as described in the Patent Application, less all returns; allowances; cash discounts; any sales, use or excise taxes; import duties or similar charges; shipping, handling, freight and/or transportation expenses; insurance charges; and installation fees or charges. Royalties shall be paid quarterly on April 30, July 31, October 31 and January 31 (cthe "Payment Dates") for the preceding calendar quarter's Net Sales, except for the first Royalty payment which shall be calculated for the broken period commencing include all Net Sales from the date Closing Date to the end of the calendar quarter preceding the payment of the first Launch royalty payment. In conjunction with the payment of Product royalties, Purchaser shall submit to Seller a statement in writing setting forth for the preceding quarter the total amount of Net Sales, the applicable percentage of royalty, and including the last day total royalty due, accompanied by Purchaser's check for the royalty due. Purchaser agrees to keep true and accurate records and separate books of Beglend's fiscal year account in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day accordance with its usual accounting procedures with respect to sales of the corresponding fiscal year; and all Royalty payments Device for the calculation of royalties. Seller shall be payable by chequehave the right, cash, or bank draftat its expense, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding examine such books to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating verify the amount of Royalty due for royalty due, provided however, that fiscal year Seller may only examine such books once in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglendany twelve month period and may only examine such records during Purchaser's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 normal business hours on at least five days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent notice. Purchaser shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments offset against any royalty payment due to be made Seller any amounts owed to Purchaser by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes Seller under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash Agreement or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationotherwise.
Appears in 1 contract
Royalty. Beglend In partial consideration of the release in Section 1 above, Couch agrees to pay to RVC a per procedure royalty payment for Refractive Surgery procedures (as defined in the Contribution Agreement) performed by or at the direction of Couch on or prior to August 31, 2005, regardless of where the procedure is performed and regardless of whose equipment or facilities are used to perform the procedure ("Procedures"). Without limiting the generality of the preceding sentence, Couch further agrees that all procedures performed at VCC's or KCL's location(s) or using VCC's or KCL's assets (including any current or future locations or assets held by VCC or KCL, or their successors in interest, but not including any unrelated third party purchaser of assets), are deemed to be done by or at the direction of Couch regardless of who performs the procedure. As used herein, "Annual Royalty Period" shall pay royalties mean each 12-month period ending on September 30th of each year through and including September 30, 2004, and the 11-month period ending on August 31, 2005. Royalty calculations with respect to InNexus equal to 3% each Annual Royalty Period are independent of Net Sales Revenue, calculated calculations and payable as follows:
(a) any Procedure information for other Annual Royalty payable hereunder Periods. The royalty payment for each Annual Royalty Period shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; respective Annual Royalty Period and all shall equal $100 for each Procedure in excess of the first 3,600 Procedures performed during the respective Annual Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and Period. Each royalty payment shall be paid within 180 days of to Prime not later than the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last 15th calendar day of the month immediately preceding fiscal yearfollowing the date on which the royalty payment is required to be calculated. The parties hereto agree that that once royalties actually paid under this Agreement total $4,500,000 in the aggregate, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty no further royalties shall accrue or be payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Productunder this Agreement. In addition, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination notwithstanding any contrary provision of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be all Investments made by Beglend the Couch Parties to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which VCC shall be qualified certified public accountants or chartered accountants) for each year with respect to repaid out of the Royalty royalties otherwise payable to InNexus RVC hereunder, before any royalties are paid to RVC. The term "Investments" refers to all investments made by 180 days following the end Couch Parties to sustain the business of each fiscal yearVCC, and Beglend shall forthwith deliver a copy of such statement including but not limited to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it investments to be considered a Product and one pay off the debts of Newco or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment VCC existing at or prior to the Net Sales Revenue closing, (ii) investments to reflect the relative contribution of each Product purchase new equipment to replace old or obsolete equipment, and each other pharmaceutically active agent which (iii) investments when VCC's cash is not otherwise inadequate to meet working capital needs, and (iv) investments to open up a Product to the Combination Productnew office; and ifprovided, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement)however, the parties can not agree to an appropriate adjustment, Net Sale Revenue Investments shall be equal to Net Sales net of all proceeds from operation of the Combination Product multiplied by a fraction, business (excluding the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationcustomary professional fee paid to Couch) that are distributed to Couch or his affiliates (other than VCC).
Appears in 1 contract
Samples: Royalty and Release Agreement (Prime Medical Services Inc /Tx/)
Royalty. Beglend shall pay royalties to InNexus equal to 3% of Net Sales Revenue, calculated and payable as follows:
(a) any Royalty payable hereunder SCANNER shall pay to LICENSOR a royalty in the amount of five percent (5%) of SCANNER'S Gross Sales until such time as the stock of SCANNER shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;registered and becomes freely tradeable.
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area Within sixty (the "Royalty Payment Period");
(c60) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each calendar quarter during the term of this Agreement, SCANNER will report to LICENSOR in writing whether or not any royalties have been earned under paragraph 3(a) of this Agreement during such calendar quarter, and shall, when calculating the total amount of Royalty due for that fiscal year in accordance any royalties so earned during such calendar quarter. Such royalties will be paid to LICENSOR contemporaneously with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year rendering of this statement. SCANNER will continue to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days render statements following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, until all sales made pursuant to inspect such accounts, records and statements and make copies thereof at their own expense for this Agreement have been accounted for.
(c) For the purpose of verifying computing royalties, the amount SCANNER PRODUCTS will be considered sold when billed, shipped, or paid for, whichever comes first and whether the products are purchased or leased by SCANNER'S customers.
(d) SCANNER shall keep full, clear, and accurate records with respect to sales of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus SCANNER PRODUCTS. LICENSOR shall have the right at through its own expense accredited representatives to have examine and audit during usual business hours all such records and such other records and accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which as may, under recognized accounting practices, contain information bearing upon the amount of royalty payable to LICENSOR under this Agreement. Prompt adjustment shall be qualified certified public accountants made by the proper party to compensate for any errors or chartered accountants) for each year with respect omissions disclosed by such examination and audit. Neither such right to examine and audit, nor the right to receive such adjustment shall be affected by any statement to the Royalty payable to InNexus hereundercontrary appearing on check or otherwise, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of unless such statement to InNexus;
(g) All Royalty payments shall be considered full appears in a letter, signed by the party having such right and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment delivered to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and ifparty, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationexpressly waiving such right.
Appears in 1 contract
Royalty. Beglend shall pay royalties to InNexus equal to 3% of Net Sales Revenue, calculated and payable as follows:
(a) any Royalty payable hereunder In consideration for the grant of the Sublicense, HPC shall be calculated pay to EarthShell a sliding-scale royalty (the "ROYALTY") each calendar quarter as set forth on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;Exhibit D hereto.
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area Within fourteen (the "Royalty Payment Period");
(c14) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal yeareach calendar quarter, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of HPC shall pay to EarthShell the Royalty payable with in respect of all Products shipped and invoiced by HPC during such calendar quarter. Each Royalty payment shall be accompanied by a written report (the "ROYALTY REPORT") prepared by HPC and certified as accurate by the Chief Financial Officer or Controller of HPC. Each Royalty Report shall set forth, for the calendar quarter covered by the Royalty Report, (i) the number of each of the Products shipped by HPC, (ii) the gross invoice price for each of such Products, and (iii) any reductions to the gross invoice price for purposes of calculating Net Sales.
(c) All Royalty payments due under this Agreement shall be paid by HPC in United States dollars.
(d) If HPC fails to make a timely payment due under this Section 4, interest at an annual rate equal to twelve percent (12%) shall accrue on the amount of payment for each day such Product and each payment is overdue; provided, however, that such Market Area for such year;interest rate shall in no event exceed the maximum rate permitted by applicable law.
(e) Beglcnd Any failure to make timely payment of any Royalty shall constitute a material breach for purposes of Section 13(b) hereof unless such failure relates to any amount as to which there is a bona fide dispute; provided that HPC in all events will maintain up be in material breach of this Agreement if it fails to pay any amount within 60 days of the date when due, whether or not HPC is then contesting whether such payment is then due and complete records payable under the terms of this Agreement (it being understood that HPC will not be in breach by reason of any failure to pay amounts that EarthShell later agrees are not due and payable hereunder or that are determined pursuant to any arbitration initiated pursuant to Section 21 not have been due and payable hereunder). In the event that HPC disputes in good faith a good faith written claim for Royalties made by EarthShell (the "Disputed Royalties"), and HPC deposits such Disputed Royalties into an interest-bearing escrow account for the production and sale benefit of Products EarthShell with its primary banking institution within thirty (30) days of such claim, then HPC shall not be deemed to be in each Market Area including accountsmaterial breach of this Agreement if it is later found that the Disputed Royalties were due. The Parties shall effect the dispute resolution procedures set forth in Section 21 to determine how to distribute such Disputed Royalties. Any expenses associated with the escrow account shall be borne entirely by the non-prevailing Party, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing or split accordingly if both Parties receive a portion of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;Disputed Royalties.
(f) Beglend shall have an audited statement prepared EarthShell acknowledges that the Royalties payable by its auditors HPC to EarthShell under this Agreement may be subject to withholding taxes that may be assessed under applicable law by any jurisdiction in the Territory and, if HPC is required to so withhold any tax on Royalties, then the amount of Royalties actually remitted to EarthShell will be net of such withholding. HPC will promptly furnish EarthShell with the official receipt of payment of these taxes to the appropriate taxing authority. Subject to any lender consent that HPC may be required to obtain in connection therewith (which shall be qualified certified public accountants or chartered accountantsconsent HPC agrees to use reasonable efforts to obtain) for each year with respect following the Effective Date and at EarthShell's option, the Parties agree to cooperate to restructure the Royalty payments payable to InNexus hereunder, by 180 days following hereunder in a manner that will optimize the end of each fiscal year, and Beglend shall forthwith deliver a copy tax treatment of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed payments, including by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, possibly converting the Royalty otherwise payable shall obligation into a profits participation by EarthShell in HPC (it being agreed that any such restructuring would not be pro-rated accordingly; in no event will Beglend be obligated intended to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it adversely affect the net economic benefits intended to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"conferred on HPC hereby), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.
Appears in 1 contract
Royalty. Beglend In consideration for the license by Avalon to MedImmune hereunder, MedImmune shall pay royalties to InNexus Avalon within * days of the close of each Calendar Quarter a royalty in an amount equal to 3% the following percentages of the specified portions of the annual aggregate Net Sales Revenueof Products sold by MedImmune, calculated its Affiliates, and payable its sublicensees throughout the Territory as follows:reported in a Calendar Quarter as provided below: Net Sales Royalty Amounts from * up to and including * * Amounts in excess of * *
(a) The obligation of MedImmune to pay royalties using the rates set forth in this Section 5.2.3 on Net Sales of Product in any Royalty payable hereunder shall be calculated country of the Territory will continue, on a country-by-country and Product-by-Product by basis, until the later of (i) the expiration of the period during which the manufacture, use, sale offer for sale or import of a Product basis for each jurisdiction sold in such country would infringe a Valid Claim under Avalon Compound Patent Rights in such country, or (each a "Market Area")in ii) the date which any is * from the date of First Commercial Sale of such Product is sold;in such country (such time period, the “Royalty Period”).
(b) For the period avoidance of doubt: (i) no royalty is due for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of any Product in any country after the end of the Royalty Period for such country and in calculating Net Sales for determining the applicable royalty rate under Section 5.2, Net Sales of a particular Market Area, Product do not include net sales in a country after the end of the Royalty Period for such country; and shall continue for (ii) during the patent life term of any Patents comprising applicable Royalty Period in any country, MedImmune shall have no right to sell or market any Product, directly or indirectly, without paying to Avalon the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based royalties set forth in that Market Area (the "Royalty Payment Period");this section.
(c) the first Royalty If any Valid Claim owned by a Third Party is asserted against MedImmune in any country for which a royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by chequeis due hereunder, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;then *.
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect Notwithstanding any provision to the Royalty payable to InNexus hereundercontrary, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event that MedImmune reasonably demonstrates to Avalon that any Third Party pharmaceutical product identical to any Product for which MedImmune owes royalties hereunder has achieved a market share * country and the Parties have reasonably concluded that the marketing or sale of such Third Party product does not infringe any partial paymentValid Claim Controlled by either Party and relating to such Product in such country, then the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated royalty payment due under this section *. * The asterisk denotes the confidential portions of this document that have been omitted and filed separately with the Securities and Exchange Commission pursuant to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales Rule 406 of the Combination Product multiplied by a fraction, the numerator Securities Act of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product1933, as determined by arbitrationamended.
Appears in 1 contract
Samples: Collaboration and License Agreement (Avalon Pharmaceuticals Inc)
Royalty. Beglend 6.1 In consideration of the rights granted under clause 2, Licensee shall pay to Licensor royalties to InNexus equal to 3% calculated at the Royalty Rate and payable in respect of all Net Sales RevenuePrice made by Licensee and Affiliates on and after the date of this agreement provided always that in respect of any Licensed Product manufactured and supplied as provided above, calculated only a single royalty in accordance with the provisions of this agreement shall be payable in respect of such manufacture or supply.
6.2 Royalties payable under this agreement are exclusive of any value added (or like) tax which may be payable on them and shall be paid gross without deduction of any withholding or other income taxes and if subject to withholding or other income taxes Licensee shall ensure that such sum is paid to Licensor as shall, after deduction of such withholding or other income tax, be equivalent to the royalties otherwise payable under the agreement. ________________________________________________________________________________
6.3 Royalties payable under this agreement shall be paid in sterling within 30 days of the end of each successive quarterly period of three months commencing on 1st January, 1st April, 1st July and 1st October in each year.
6.4 For the purpose of converting into sterling the local currency of Licensee in which such royalties arise, the rate of exchange to be applied shall be the rate of exchange applied by the (London) bankers to Licensor for the purchase of sterling with such foreign currency as followsat the close of business on the date when the relevant payment first becomes due.
6.5 At the same time as payment of any such royalties falls due Licensee shall submit or cause to be submitted to Licensor a statement in writing recording the calculation of such royalties payable and in particular:
(a) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in the number of Licensed Products which any such Product is soldhave been supplied during the previous quarter;
(b) the period for number of Licensed Products which Beglend is required to pay a Royalty hereunder shall commence upon have been manufactured during the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period")previous quarter but not yet supplied;
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end Net Sales Price of each such Licensed Product supplied during the previous quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products royalties due and sample Products distributed, Product returns relating to sales payable and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments any tax deductible or due to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have deducted from such accounts audited by independent auditors once each yearfigure;
(f) Beglend 6.6 Licensee shall have an audited statement prepared by its auditors (which keep proper records and books of account showing the quality, description and price of Licensed Products supplied or put into use and such records and books shall be qualified certified public accountants or chartered accountants) for each year with respect kept separate from any records and books not relating solely to the Royalty payable Licensed Products and be open at all times to InNexus hereunder, inspection and audit by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments Licensor or its duly authorised agent or representative who shall be considered full and final satisfaction entitled to take copies of all obligations of Beglend making or extracts from the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, such inspection or audit should reveal a discrepancy in the Royalty otherwise royalties paid from those payable under this agreement Licensee shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once immediately make up the shortfall and reimburse Licensor in respect of any revenue received by it professional charges incurred for such audit or its associatesinspection.
6.7 The parties believe that, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product")at the date of this agreement, the parties shall estimate contained in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which schedule 2 is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales reasonable estimate of the Combination Product multiplied by a fraction, potential sales that might be achievable under this agreement. Both parties acknowledge that the numerator of which is the reasonable fair market value of the Compounds estimate contained in schedule 2 is a non-binding estimate and does not constitute any representation, warranty or otherwise that those sales will actually be realised.
6.8 The provisions of this clause 6 shall remain in effect notwithstanding termination or expiry of this agreement until the Combination Product and the denominator of which is the reasonable fair market value settlement of all pharmaceutically active agents contained in the Combination Product, as determined subsisting claims by arbitrationLicensor.
Appears in 1 contract
Samples: Patent Licence Agreement (In Vivo Medical Diagnostics, Inc.)
Royalty. Beglend 6.1 In consideration of the rights granted under clause 2, Licensee shall pay to Licensor royalties to InNexus equal to 3% calculated at the Royalty Rate and payable in respect of all Net Sales RevenuePrice made by Licensee and Affiliates on and after the date of this agreement provided always that in respect of any Licensed Product manufactured and supplied as provided above, calculated only a single royalty in accordance with the provisions of this agreement shall be payable in respect of such manufacture or supply.
6.2 Royalties payable under this agreement are exclusive of any value added (or like) tax which may be payable on them and shall be paid gross without deduction of any withholding or other income taxes and if subject to withholding or other income taxes Licensee shall ensure that such sum is paid to Licensor as shall, after deduction of such withholding or other income tax, be equivalent to the royalties otherwise payable under the agreement.
6.3 Royalties payable under this agreement shall be paid in sterling within 30 days of the end of each successive quarterly period of three months commencing on 1st January, 1st April, 1st July and 1st October in each year.
6.4 For the purpose of converting into sterling the local currency of Licensee in which such royalties arise, the rate of exchange to be applied shall be the rate of exchange applied by the (London) bankers to Licensor for the purchase of sterling with such foreign currency as followsat the close of business on the date when the relevant payment first becomes due.
6.5 At the same time as payment of any such royalties falls due Licensee shall submit or cause to be submitted to Licensor a statement in writing recording the calculation of such royalties payable and in particular:
(a) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in the number of Licensed Products which any such Product is soldhave been supplied during the previous quarter;
(b) the period for number of Licensed Products which Beglend is required to pay a Royalty hereunder shall commence upon have been manufactured during the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period")previous quarter but not yet supplied;
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end Net Sales Price of each such Licensed Product supplied during the previous quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products royalties due and sample Products distributed, Product returns relating to sales payable and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments any tax deductible or due to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have deducted from such accounts audited by independent auditors once each yearfigure;
(f) Beglend 6.6 Licensee shall have an audited statement prepared by its auditors (which keep proper records and books of account showing the quality, description and price of Licensed Products supplied or put into use and such records and books shall be qualified certified public accountants or chartered accountants) for each year with respect kept separate from any records and books not relating solely to the Royalty payable Licensed Products and be open at all times to InNexus hereunder, inspection and audit by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments Licensor or its duly authorised agent or representative who shall be considered full and final satisfaction entitled to take copies of all obligations of Beglend making or extracts from the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, such inspection or audit should reveal a discrepancy in the Royalty otherwise royalties paid from those payable under this agreement Licensee shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once immediately make up the shortfall and reimburse Licensor in respect of any revenue received by it professional charges incurred for such audit or its associatesinspection.
6.7 The parties believe that, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product")at the date of this agreement, the parties shall estimate contained in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which schedule 2 is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales reasonable estimate of the Combination Product multiplied by a fraction, potential sales that might be achievable under this agreement. Both parties acknowledge that the numerator of which is the reasonable fair market value of the Compounds estimate contained in schedule 2 is a non-binding estimate and does not constitute any representation, warranty or otherwise that those sales will actually be realised.
6.8 The provisions of this clause 6 shall remain in effect notwithstanding termination or expiry of this agreement until the Combination Product and the denominator of which is the reasonable fair market value settlement of all pharmaceutically active agents contained in the Combination Product, as determined subsisting claims by arbitrationLicensor.
Appears in 1 contract
Samples: Patent License Agreement (In Veritas Medical Diagnostics, Inc.)
Royalty. Beglend (i) In consideration of the rights granted by the Employees to the Company hereunder, the Company shall pay royalties to InNexus the Employees a royalty (the "Royalty") equal to 320% of Net Sales Revenue, calculated and payable Profit (as follows:
(adefined) any Royalty payable hereunder shall be calculated on a Product made by Product basis the Company for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) products from the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area System (the "Products") per Exhibit A, equivalents and any future improvements thereof for the Royalty Payment PeriodPeriod (as defined). The Company will pay the Employees the total sum of $5,000 ($2,500 to each Employee) (each, an ");
(cAdvance") per year of the first Royalty Agreement. The payment shall be calculated paid by January 31 of each year of the Agreement. This amount will be deducted from the Royalty due the Employees as is outlined in this Section. The Company shall use its best efforts, as determined solely by its chief executive officer, to market and sell the System.
(ii) At any time during the Royalty Period, if the Company decides to sell the System and the Embodiments and any other related equipment or inventory (Collectively, the "System Assets") and the Company receives an offer for the broken period commencing from System Assets (the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination ProductOffer"), the parties Employees shall have the right, but not the obligation, to purchase the System Assets for the same price as the Offer and on the same terms and conditions. The Company shall promptly notify the Employees of any such Offer. The Employees shall promptly notify the Company if they wish to purchase the System Assets pursuant to this Section. Such purchase and sale shall thereafter by promptly consummated. (b) "Net Profit" means net sales (minus any allowance for returns) minus the cost of goods sold, minus any administrative, sales, advertising, trade show, warranty, research and development, direct inventory write-off, and other costs to be mutually agreed upon by the Employee(s) and the Company, all as is more fully described in good faith negotiate and agree the attached Exhibit B. Expenses to an appropriate adjustment be allocated to the Net Sales Revenue to reflect the relative contribution of Profit calculation are based on expenses incurred during each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales year of the Combination Product multiplied by a fraction"Royalty Period". The "Royalty Period" shall commence on January 1, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product 1997 and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Productend on December 31, as determined by arbitration1998.
Appears in 1 contract
Samples: Assignment of Rights and Royalty Agreement (Wells Gardner Electronics Corp)
Royalty. Beglend (i) Viral Genetics agrees that either it or any other present or future entity through which they may engage in business, operations or activities in the Territory, shall pay royalties a royalty to InNexus L&M equal to 3% two percent (2%) (the "Royalty") of Net Sales Revenueall Gross Profits obtained by them from the sale of Products in the Territory, calculated for the period commencing on the date of this Agreement and ending fifteen (15) years from and including said date. There shall be no minimum Royalty payable as follows:to L&M.
(aii) any The Royalty payable hereunder will be paid on a calendar quarterly basis, no later than forty-five (45) days after the applicable quarter and each payment shall be calculated on accompanied by a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area statement (the "Royalty Payment PeriodStatement");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after certified as being accurate by Viral Genetics' Chief Financial Officer, which shall set forth in reasonable detail the end calculation of each such quarter, Gross Profits for the quarter and shall, when calculating the amount of the Royalty due payable to L&M. The royalty shall be paid to L&M in U.S. Dollars.
(iii) L&M shall have the right to dispute any Royalty Statement that it objects to and to conduct an audit (using experts and advisors chosen by L&M) of Viral Genetics solely for that fiscal year in accordance with sub-section 6.5(c), adjust purposes of determining the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate amount of the actual Royalty payable to L&M. L&M shall bear its own costs and expenses incurred with any such dispute or audit; provided that if as a result thereof the amount payable, after accounting for each of the prior payments made Royalty payable to L&M is increased from that which was shown on the Royalty Statement by more than $10,000, then Viral Genetics shall reimburse L&M for such costs and expenses. Said audit shall be conducted in a manner that fiscal year; does not interfere with the ability of Viral Genetics to conduct its day to day business, or otherwise materially impact Viral Genetics' operations.
(iv) L&M shall not have the right to dispute any Royalty Statement, unless L&M notifies Viral Genetics in writing within 180 days after L&M's receipt of the applicable Royalty Statement that L&M disputes the Royalty Statement, and Beglend such notice shall pay all royalties describe in reasonable detail the nature of the dispute.
(v) For purposes hereof, "Gross Profits" shall be defined as in the currencies Joint Venture Agreements. For purposes of determining Gross Profits and the amount of the Royalty payable to L&M, any amounts which are included in any Gross Profits which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed Viral Genetics in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend a currency other than U.S. Dollars shall deliver be converted to InNexus a statement indicating, in reasonable detail, U.S. Dollars as of the last day of the immediately preceding fiscal yearrelevant quarter, the calculation regardless of Net Sales Revenue for each Product sold in each Market Area and the aggregate whether or not such amounts were actually so converted or repatriated out of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationTerritory.
Appears in 1 contract
Royalty. Beglend Subject to the other terms and conditions of this Agreement (and, in particular , the provisions of Section 7.3(b) and Section 7.3(c) below), Chiron shall pay royalties Cubist a royalty with respect to InNexus each Licensed Product sold by Chiron or its Affiliates equal to 3% a percentage determined in accordance with the table below or in accordance with Sections 7.3(b) or 7.3(c) below, as applicable, taking into consideration the protection afforded by Cubist Patents at the relevant time, (such applicable percentage, the "ROYALTY RATE"), of Net Sales Revenuein any country within the Territory of units of such Licensed Product during each calendar quarter from and after the date of Commercial Launch in such country, calculated and payable as follows:
(a) any Royalty payable hereunder shall be calculated on a less the aggregate Transfer Price previously paid to Cubist for having supplied pursuant to the Supply Agreement such units of such Licensed Product that are sold by Product basis for each jurisdiction (each a "Market Area")in which any Chiron or its Affiliates during such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon calendar quarter: For purposes of this Section 7.3, the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed Royalty Year with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment all Licensed Products shall be calculated for the broken period commencing from commence on the date of Commercial Launch by Chiron or any of its Affiliates in any country within the first Launch Territory and end on December 31 of Product to and including the last day of Beglend's fiscal year in which the Commercial Launch of Product took place; and any occurred. Each succeeding Royalty payments Year shall be calculated from the first day until the last day commence on January 1 of the corresponding fiscal ensuing * CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE COMMISSION 42 year and end on December 31 of such year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year. Accordingly, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate determination of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense Year for the purpose of verifying determining the Royalty Rate which applies shall not be either on a Licensed Product-by-Licensed Product basis or on a country-by-country basis. The determination of the Royalty Rate pursuant to the table in this Section 7.3(a) (i.e. whether the Royalty Rate in left hand column or the right hand column in the table above applies) shall also not be made on a Licensed Product-by-Licensed Product basis or on a country-by-country basis, but, instead, shall be made based on the aggregate amount of annual Net Sales for all Licensed Products in all countries in the Territory. The determination of the amount of Royalty payments royalties due Cubist pursuant to this Section 7.3(a) shall be made on a Licensed Product-by-Licensed Product basis and on a country-by-country basis by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to multiplying the Royalty payable to InNexus hereunderRate that is applicable for any particular Royalty Year, as determined in accordance with the foregoing provisions of this Section 7.3(a), by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect arising from sales in each country within the relative contribution Territory of units of each Licensed Product and by Chiron or its Affiliates during each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales calendar quarter of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationapplicable Royalty Year.
Appears in 1 contract
Royalty. Beglend In addition to the above consideration, BNAL shall pay royalties to InNexus Licensors a Royalty equal to 3% $1.00 for each dry ton of Net Sales Revenuebiomass produced using the Technology where the biomass is used for the production of energy products. BNAL shall not be required to pay a royalty if the biomass produced using the Technology is used for research or testing purposes. Within thirty days prior to the first use of the Technology by BNAL whereby a royalty shall be generated, calculated BNAL and payable Licensors shall agree in writing as follows:
(a) to a commercially reasonable method for determining the amount of biomass derived using the Technology; provided that if at such time the parties have not made such determination, either party may submit the matter to arbitration in accordance with Paragraph 16 of this Agreement and the determination of the arbitrator in such matter shall be final and binding on all parties hereto. BNAL shall retain all records relating to the use of the Technology for the production of biomass for a period of three years. Licensors shall be entitled to inspect such records at BNAL’s offices during regular office hours at any time during the term of this Agreement after five days written notice. If Licensors’ examination reveals a discrepancy of ten percent or more on any payments owed Licensors hereunder and such amount is agreed by the parties to be correct or ultimately determined to be correct by other means, BNAL shall be required to pay Licensors the costs of any examination or proceedings necessary to discover and collect such discrepancy. The Royalty payable hereunder shall be calculated payable quarterly (based on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(bcalendar quarters) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date of the first Launch of Product to and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid due and owing within 180 days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 thirty days after the end of each such quarterquarter during the term of this Agreement. The amount due hereunder may be paid in cash or stock, and shallwhich shall be determined by Licensors in their sole discretion. If Licensors desire to be paid in cash, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend Licensors shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed so notify BNAL in writing between the parties;
(d) On or before 180 at least ten days following prior to the end of each fiscal year the quarter in which payment is due. If no such notice is received, payment shall be in the form of Beglend after Common Stock, $0.001 par value per share of BNAL, provided that at such time such Common Stock is publicly tradable on a recognized exchange, quotation system or over the first Launch counter market. The value of Product, Beglend such stock for determining the amount due Licensors shall deliver to InNexus a statement indicating, in reasonable detail, as be the price obtained by the average daily closing price for shares of such stock on the five days preceding the end of the applicable quarter for which payment is due. If on the last day of the immediately preceding fiscal yearquarter for which any payment hereunder is due, BNAL’s Common Stock is not publicly tradable on a recognized exchange, quotation system or over the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accountscounter market, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which BNAL shall be qualified certified public accountants or chartered accountants) required to make payment for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year, and Beglend shall forthwith deliver a copy of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same that quarter in respect thereof if such payments or the calculations in respect thereof are not disputed by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationcash.
Appears in 1 contract
Samples: Technology License and Joint Development Agreement (CleanTech Biofuels, Inc.)
Royalty. Beglend (a) In consideration for the grant of the Sublicense, Sublicensee shall pay royalties to InNexus equal to 3EarthShell a royalty (the "Royalty") of 20% of Net Sales Revenuebut not to exceed 50% of the Gross Profits of Sublicensee during the relevant period, calculated when and payable as follows:
(a) any Royalty payable hereunder provided in Section 4(b). In addition to the foregoing, Sublicensee shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence technology fee of $1,000,000 upon the first Launch signing of Product in a particular Market Areathis Agreement. Further, Sublicensee agrees to purchase 250,000 shares of ERTH common stock @ $4 per share according to the terms and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) the first Royalty payment shall be calculated for the broken period commencing from the date conditions of the first Launch of Product attached Stock Purchase Agreement and such shares will be released by EarthShell to the Sublicensee when the second million dollars in royalties are due and including the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty paid. The Technology Fee payments shall be calculated from creditable against, the first day until the last day of the corresponding fiscal year; and all Royalty payments Royalties that shall be payable by chequebegin accruing on April 1, cash, or bank draft, to InNexus' order, and shall be paid within 180 days of the completion of Beglend's fiscal year corresponding to that payment2006; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating that the amount of Royalty due for the Technology Fee payments that fiscal year can be credited against the Royalties payable by Sublicensee after April 1, 2006 in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate no event shall exceed fifty percent (50%) of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments otherwise payable by Sublicensee in respect of the calendar quarter in question prior to crediting the Technology Fee payments against such Royalties.
(b) No Royalties will be payable with respect to Products shipped and invoiced prior to April 1, 2006 (subject to Sublicensee paying the Technology Fee as specified in Section 4(a)). Sublicensee shall pay to EarthShell the Royalty payable in respect of all Products shipped and invoiced by Sublicensee during the preceding calendar quarter (or partial calendar quarter, in the case of the first Royalty period). Each Royalty payment shall be accompanied by a written report (the "Royalty Report") prepared by Sublicensee and certified as accurate by the Chief Financial Officer or Treasurer of Sublicensee. Each Royalty Report shall set forth, for the calendar period covered by the Royalty Report, (i) the number of each of the Products shipped by Sublicensee, (ii) the gross invoice price for each of such Products, (iii) any reductions to the gross invoice price for purposes of calculating Net Sales and (iv) the Gross Profits recognized during such calendar period. For Royalty Reports covering any of the part of the five-year period commencing on the Effective Date, the Royalty Report shall also set forth the amount of the capital investment in Equipment made by Beglend Sublicensee during the relevant calendar period.
(c) All payments due under this Agreement shall be paid by Sublicensee in United States dollars.
(d) If Sublicensee fails to InNexus pursuant heretomake a timely payment due under this Section 4, interest at an annual compounded rate equal to twelve percent (12%) shall accrue on the amount of payment for each day such payment is overdue; and InNexus provided, however, that such interest rate shall have in no event exceed the right at its own expense maximum rate permitted by applicable law.
(e) Any failure to have such accounts audited by independent auditors once each year;make timely payment of any Royalty or Technology Fee shall constitute a material breach for purposes of Section 13(b) hereof.
(f) Beglend shall have an audited statement prepared EarthShell acknowledges that the Royalties payable by its auditors (which shall Sublicensee to EarthShell under this Agreement may be qualified certified public accountants or chartered accountants) for each year subject to withholding taxes that may be assessed under applicable law by any jurisdiction in the Territory and, if Sublicensee is required to so withhold any tax on Royalties, then the amount of Royalties actually remitted to EarthShell will be net of such withholding. Sublicensee will promptly furnish EarthShell with respect the official receipt of payment of these taxes to the appropriate taxing authority. Following the Effective Date and at EarthShell's option, the Parties agree to cooperate to restructure the Royalty payments payable to InNexus hereunder, by 180 days following hereunder in a manner that will optimize the end of each fiscal year, and Beglend shall forthwith deliver a copy tax treatment of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed payments, including by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, possibly converting the Royalty otherwise payable shall obligation into a profits participation by EarthShell in Sublicensee (it being agreed that any such restructuring would not be pro-rated accordingly; in no event will Beglend be obligated intended to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it adversely affect the net economic benefits intended to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"conferred on Sublicensee hereby), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.
Appears in 1 contract
Royalty. Beglend 7.1 In consideration of the rights granted herein, burgers shall pay royalties to InNexus equal BYB a royalty equivalent to 3% a percentage of Net Sales Revenue, calculated and payable as follows:
all gross sales (aless sales tax) any Royalty payable hereunder shall be calculated on a Product by Product basis for each jurisdiction (each a "Market Area")in which any such Product is sold;
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter be filed with respect to products sold by Burgers and its Affiliates, such Product or upon which such Product is based in that Market Area percentage currently being three and one-half percent (3.5%) (the "Royalty Payment PeriodRoyalty");
(c) . Burgers and BYB shall each have the first Royalty payment right to require that a new royalty be determined in accordance with an independent valuation of the Trademarks which shall be calculated performed by an independent appraiser mutually agreed upon by the parties (costs to be paid by requesting party). Once a party exercises its right to require a valuation, that party shall not have the right to request another valuation for the broken period commencing three (3) years from the date of issuance of the first Launch final draft of Product the valuation report. The royalty percentage determined by the valuation study shall then be applied prospectively to the gross sales (less sales tax) of Burgers from the date of issuance of the final draft of the valuation report.
7.2 In consideration of the right to Franchise or Sublicense the Trademarks hereunder, Burgers shall pay a royalty equivalent to the Royalty, which shall be calculated against all gross sales (less sales tax) of Licensed products sold by Franchisees or sublicensees in the Territory (the "Franchise Fees").
7.3 Unless agreed to the contrary, Burgers shall calculate the royalty and including Franchise Fees payable to BYB on the last day of Beglend's each fiscal year in which month of Burgers occurring during the Launch term of Product took place; this Agreement, and any succeeding shall pay or cause to have paid to BYB such Royalty payments shall be calculated from the first day until and Franchise Fees within thirty (30) days after the last day of each fiscal month occurring during the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 days term of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding this Agreement. Notwithstanding the foregoing, Beglend the royalty and Franchise Fees shall pay quarterly installments be deemed to accrue from day to day. Simultaneous with submission of the estimated amount royalty and Franchise Fees, Burgers shall deliver to BYB a detailed report of the Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment Franchise Fees payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;month.
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of the immediately preceding fiscal year, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of the Royalty payable with respect to each such Product and each such Market Area for such year;
(e) Beglcnd will maintain up to date and complete records for the production and sale of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent 7.4 BYB shall have the right to assess interest on any royalty or Franchise Fe due and remaining unpaid in the manner and on the date stipulated for payment hereunder at all reasonable times, including a rate of one percent (1%) point per annum above the average prime rate as reported in The Wall Street Journal for a the period of 12 months following the expiration or termination of this Agreementdefault, to inspect such accounts, records and statements and make copies thereof interest being compounded at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;
(f) Beglend shall have an audited statement prepared by its auditors (which shall be qualified certified public accountants or chartered accountants) for each year with respect to the Royalty payable to InNexus hereunder, by 180 days following the end of each fiscal year.
7.5 Burgers shall maintain complete and accurate records showing in detail the net sales of the Licensed Products. BYB, or its duly authorized representative, is entitled to inspect Burgers' records at all reasonable times.
7.6 BYB agrees to provide instructions to, accept payments from, and Beglend shall forthwith deliver a copy of such statement any report, document, or other information pertaining to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments this Agreement or the calculations in respect thereof are not disputed transactions contemplated by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial paymentAgreement to, the Royalty otherwise payable shall be pro-rated accordingly; in no event will Beglend be obligated management company or other designee appointed to pay Royalties more than once in respect transact business on behalf of any revenue received Burgers, if requested to do so by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitrationBurgers.
Appears in 1 contract
Samples: Trademark License Agreement (Back Yard Burgers Inc)
Royalty. Beglend (a) In consideration for the grant of the Sublicense, Sublicensee shall pay royalties to InNexus equal to 3EarthShell a royalty (the "Royalty") of 20% of Net Sales Revenuebut not to exceed 50% of the Gross Profits of Sublicensee during the relevant period, calculated when and payable as follows:
provided in Section 4(b). In addition to the foregoing, Sublicensee shall pay a technology fee of $500,000 on the Effective Date and additional $500,000 technology fee payments on each of the following dates: (ai) any Royalty payable hereunder the later of (A) three (3) months after the Effective Date or (B) the date on which the initial Module ordered by Sublicensee is fully installed and operational (the "Second Installment Date"); (ii) the date that is three (3) months after the Second Installment Date; and (iii) the date that is six (6) months after the Second Installment Date (the Final Installment Date). The Technology Fee payments shall be calculated creditable against, the Royalties that shall begin accruing on a Product the first anniversary of the Effective Date; provided that the amount of the Technology Fee payments that can be credited against the Royalties payable by Product basis for each jurisdiction Sublicensee after the first anniversary of the Effective Date in no event shall exceed fifty percent (each a "Market Area")in which any 50%) of the amount of Royalty payments otherwise payable by Sublicensee in respect of the calendar quarter in question prior to crediting the Technology Fee payments against such Product is sold;Royalties.
(b) the period for which Beglend is required to pay a Royalty hereunder shall commence upon the first Launch of Product in a particular Market Area, and shall continue for the patent life of any Patents comprising the Licensed Technology or any Joint Patents which may hereafter No Royalties will be filed payable with respect to such Product or upon which such Product is based in that Market Area (the "Royalty Payment Period");
(c) Products shipped and invoiced prior to the first Royalty payment shall be calculated for the broken period commencing from the date anniversary of the first Launch of Product Effective Date (subject to and including Sublicensee paying the last day of Beglend's fiscal year in which the Launch of Product took place; and any succeeding Royalty Technology Fee payments shall be calculated from the first day until the last day of the corresponding fiscal year; and all Royalty payments shall be payable by cheque, cash, or bank draft, to InNexus' order, and shall be paid within 180 during such twelve month period as specified in Section 4(a)). Within fourteen (14) days of the completion of Beglend's fiscal year corresponding to that payment; provided that, notwithstanding the foregoing, Beglend shall pay quarterly installments of the estimated amount of Royalty payments due for each fiscal quarter completed after the date of Launch of Product, which shall be payable within 90 days after the end of each such quarter, and shall, when calculating the amount of Royalty due for that fiscal year in accordance with sub-section 6.5(c), adjust the installment payable for the final quarter in each fiscal year to reflect Beglend's estimate of the actual amount payable, after accounting for each of the prior payments made in that fiscal year; and Beglend shall pay all royalties in the currencies in which the revenues giving rise to such payment obligation are received by Beglend unless otherwise agreed in writing between the parties;
(d) On or before 180 days following the end of each fiscal year of Beglend after the first Launch of Product, Beglend shall deliver to InNexus a statement indicating, in reasonable detail, as of the last day of each calendar quarter beginning with the immediately preceding fiscal yearcalendar quarter during which the Final Installment Date occurs, the calculation of Net Sales Revenue for each Product sold in each Market Area and the aggregate of Sublicensee shall pay to EarthShell the Royalty payable with in respect of all Products shipped and invoiced by Sublicensee during the preceding calendar quarter (or partial calendar quarter, in the case of the first Royalty period). Each Royalty payment shall be accompanied by a written report (the "Royalty Report") prepared by Sublicensee and certified as accurate by the Chief Financial Officer or Treasurer of Sublicensee. Each Royalty Report shall set forth, for the calendar period covered by the Royalty Report, (i) the number of each of the Products shipped by Sublicensee, (ii) the gross invoice price for each of such Products, (iii) any reductions to the gross invoice price for purposes of calculating Net Sales and (iv) the Gross Profits recognized during such calendar period. For Royalty Reports covering any of the part of the five-year period commencing on the Effective Date, the Royalty Report shall also set forth the amount of the capital investment in Equipment made by Sublicensee during the relevant calendar period.
(c) All payments due under this Agreement shall be paid by Sublicensee in United States dollars.
(d) If Sublicensee fails to make a timely payment due under this Section 4, interest at an annual compounded rate equal to twelve percent (12%) shall accrue on the amount of payment for each day such Product and each payment is overdue; provided, however, that such Market Area for such year;interest rate shall in no event exceed the maximum rate permitted by applicable law.
(e) Beglcnd will maintain up Any failure to date and complete records make timely payment of any Royalty or Technology Fee shall constitute a material breach for the production and sale purposes of Products in each Market Area including accounts, records, statements, the amount of free Products and sample Products distributed, Product returns relating to sales and marketing of the Product, and InNexus or its agent shall have the right at all reasonable times, including for a period of 12 months following the expiration or termination of this Agreement, to inspect such accounts, records and statements and make copies thereof at their own expense for the purpose of verifying the amount of Royalty payments to be made by Beglend to InNexus pursuant hereto; and InNexus shall have the right at its own expense to have such accounts audited by independent auditors once each year;Section 13(b) hereof.
(f) Beglend shall have an audited statement prepared EarthShell acknowledges that the Royalties payable by its auditors (which shall Sublicensee to EarthShell under this Agreement may be qualified certified public accountants or chartered accountants) for each year subject to withholding taxes that may be assessed under applicable law by any jurisdiction in the Territory and, if Sublicensee is required to so withhold any tax on Royalties, then the amount of Royalties actually remitted to EarthShell will be net of such withholding. Sublicensee will promptly furnish EarthShell with respect the official receipt of payment of these taxes to the appropriate taxing authority. Following the Effective Date and at EarthShell's option, the Parties agree to cooperate to restructure the Royalty payments payable to InNexus hereunder, by 180 days following hereunder in a manner that will optimize the end of each fiscal year, and Beglend shall forthwith deliver a copy tax treatment of such statement to InNexus;
(g) All Royalty payments shall be considered full and final satisfaction of all obligations of Beglend making the same in respect thereof if such payments or the calculations in respect thereof are not disputed payments, including by InNexus within 180 days after receipt by InNexus of the audited statement referred to in subsection 6.5(f) hereof; and any disputes under this subsection shall be decided by arbitration as herein provided;
(h) for the purpose of calculating Royalties, revenue shall be deemed to have been received when it has actually been received in the form of cash or credit or by way of any measurable benefit, advantage or concession; and in the event of any partial payment, possibly converting the Royalty otherwise payable shall obligation into a profits participation by EarthShell in Sublicensee (it being agreed that any such restructuring would not be pro-rated accordingly; in no event will Beglend be obligated intended to pay Royalties more than once in respect of any revenue received by it or its associates, affiliates, licensees or sub-licensees in connection with any single transaction (i.e. no "double" Royalties); and
(i) for any product containing both a pharmaceutically active agent which causes it adversely affect the net economic benefits intended to be considered a Product and one or more other pharmaceutically active agents which are not Products (each a "Combination Product"conferred on Sublicensee hereby), the parties shall in good faith negotiate and agree to an appropriate adjustment to the Net Sales Revenue to reflect the relative contribution of each Product and each other pharmaceutically active agent which is not a Product to the Combination Product; and if, after good faith negotiations (not to exceed ninety (90) days in duration unless extended by mutual agreement), the parties can not agree to an appropriate adjustment, Net Sale Revenue shall be equal to Net Sales of the Combination Product multiplied by a fraction, the numerator of which is the reasonable fair market value of the Compounds contained in the Combination Product and the denominator of which is the reasonable fair market value of all pharmaceutically active agents contained in the Combination Product, as determined by arbitration.
Appears in 1 contract