Common use of Supply and Purchase Commitments Clause in Contracts

Supply and Purchase Commitments. (a) Subject to Cerus’ supply of Platelet Wafers, Plasma Disks and [*], during the Term of this Agreement, Fenwal shall supply Cerus with purchase orders for Manufactured Products within the delivery times required under Section 2.4. Cerus shall purchase Manufactured Products from Fenwal as set forth in Section 2.5. (b) Cerus shall purchase its requirements of Platelet Sets and Plasma Sets from Fenwal, subject to the following: (i) For the duration of this Agreement and in any calendar year, Cerus shall purchase from Fenwal a number of Sets equal to the greater of [*]. In any event, Cerus shall not be required to purchase [*] in any given calendar year from Fenwal absent a written mutual agreement between Cerus and Fenwal stating such. Cerus is free to purchase [*] from a third-party supplier or suppliers. Such purchases by Cerus at any time from third-party supplier(s) will not alter Cerus’ purchase obligations under binding firm purchase orders to Fenwal then in effect pursuant to Section 2.4 of this Agreement. (ii) In the event that Cerus provides [*] written notice of termination pursuant to Section 6.2(g) of this Agreement, then Cerus’ purchase requirements shall be modified as follows (without altering Cerus’ purchase obligations under binding firm purchase orders to Fenwal then in effect pursuant to Section 2.4 of this Agreement): (A) During the [*] months following such notice, Cerus shall purchase Sets from Fenwal at a rate equal to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice; (B) During months [*] following such notice, Cerus shall purchase Sets from Fenwal at a rate equal to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice; and (C) During the [*] following such notice, Cerus shall purchase Sets from Fenwal at a rate equal to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Supply and Purchase Commitments. (a) Subject to Cerus’ supply a. During the Term, SUPPLIER shall sell and deliver, and CUSTOMER shall purchase, pay for, take delivery of Platelet Wafers, Plasma Disks and [*], during the Term of this Agreement, Fenwal shall supply Cerus with purchase orders provide safe access for Manufactured Products within the delivery times required under Section 2.4. Cerus shall purchase Manufactured Products from Fenwal as set forth SUPPLIER (or its authorized distributor) at the Customer Locations (other than any Burdensome Customer Location) of, the Products, in Section 2.5. (b) Cerus shall purchase its requirements of Platelet Sets and Plasma Sets from Fenwal, subject to accordance with the following: (i) For the duration of this Agreement and in any calendar year, Cerus shall purchase from Fenwal a number of Sets equal to the greater of [*]. In any event, Cerus shall not be required to purchase [*] in any given calendar year from Fenwal absent a written mutual agreement between Cerus and Fenwal stating such. Cerus is free to purchase [*] from a third-party supplier or suppliers. Such purchases by Cerus at any time from third-party supplier(s) will not alter Cerus’ purchase obligations under binding firm purchase orders to Fenwal then in effect pursuant to Section 2.4 terms of this Agreement. b. CUSTOMER shall, and shall cause each Customer Location (iiother than each Burdensome Customer Location) to, purchase from SUPPLIER a percentage of such party’s requirements for the Products (or products that compete with the Products) that is equal to or greater than the applicable minimum percentage as set out in Exhibit A (the “Minimum Percentages”); c. CUSTOMER shall use commercially reasonable efforts to purchase, and to cause each Customer Location (other than each Burdensome Customer Location) to purchase, [***]% of such party’s requirements for the Products (or products that compete with the Products) to the extent the Minimum Percentage with respect to any Product is less than [***]%; d. SUPPLIER shall have the right of first refusal, but not the obligation, to supply up to [***]% of CUSTOMER’s requirements for Customer-Owned Locations and Great Canadian Licensee Locations (in each case, other than any Burdensome Customer Location) for any ROFR Products, and CUSTOMER shall have the obligation to purchase any such ROFR Products from SUPPLIER. CUSTOMER shall give SUPPLIER commercially reasonable advance written notice of its intent to purchase any such ROFR Products, and to the extent that SUPPLIER elects (in its sole discretion) to exercise such right of first refusal it shall give commercially reasonable advance written notice thereof to CUSTOMER. In the event that Cerus provides SUPPLIER exercises its right of first refusal with respect to any ROFR Product, the Parties agree to discuss in good faith the potential amendment of this Agreement (including Exhibit A hereof) to reflect the addition hereto of supply and purchase commitments and pricing arrangements with respect to such product, with the intent of continuing to provide for the exclusive supply of Products on market terms by SUPPLIER to CUSTOMER hereunder. In the event that the Parties cannot reach mutual agreement after [***] written notice of termination pursuant to Section 6.2(g) of this Agreementsuch discussion, then Cerus’ purchase requirements CUSTOMER shall be modified as follows permitted to purchase such ROFR Product from an Alternative Supplier; provided that, the Parties shall use commercially reasonable efforts to minimize the term of any supply agreement entered into with an Alternative Supplier with respect to such ROFR Product; provided that such minimization does not result in or contribute to higher pricing or the incurrence of additional costs by CUSTOMER or otherwise adversely affect the terms of such supply agreement that can be obtained by CUSTOMER. CUSTOMER shall use commercially reasonable efforts to encourage Customer Locations (without altering Cerus’ other than each Burdensome Customer Location) to purchase obligations under binding firm purchase orders to Fenwal then in effect pursuant to Section 2.4 of this Agreement): (A) During the [*] months following such notice, Cerus shall purchase Sets from Fenwal at a rate equal up to [***]% of such Customer Location’s requirements for ROFR Products from SUPPLIER. e. CUSTOMER shall only use the products sold under this Agreement (i) for a Retail Services purpose, and (ii) for consumption by retail consumers in the process of CUSTOMER delivering Retail Services. CUSTOMER shall not, and shall cause each Customer Location not to, advertise, promote, or in any other way market products that compete with the Products. f. On or prior to [●] of each calendar year, CUSTOMER shall provide to SUPPLIER a detailed report that sets out the types and quantities of the Products, and any other products that compete with the Products, that have been ordered and/or sold by the Customer Locations during the previous calendar year, broken down by type of Customer Location and Product type (“Annual Sales Report”) for the purpose of SUPPLIER verifying CUSTOMER’S performance of its obligations pursuant to this Agreement (including Section 2(a) through 2(e)) during the previous calendar year. Each Annual Sales Report also shall set out, for each type of Product set forth on Exhibit A, the aggregate quantities of such type of Product sold by each type of Customer Location set forth on Exhibit A, as a percentage of such type of Customer Locations’ aggregate sales of such type of Product and products that compete with such type of Product. With respect to each Annual Sales Report, SUPPLIER has the right to, or the right to have a third-party auditor, review the data and other underlying information (including through the inspection of any relevant Customer Location) that is the basis of such Annual Sales Report, to verify the accuracy of such Annual Sales Report and CUSTOMER’S performance of its obligations hereunder. Such audit shall be at SUPPLIER’s sole cost and expense; provided, however, that if such audit reveals CUSTOMER’s non-compliance with this Section 2(f) or any material inaccuracy, error or omission in the Annual Sales Report, such audit shall be at CUSTOMER’s sole cost and expense. g. SUPPLIER shall, in the Territory, (i) prohibit each of the [*] for Sets purchased by Cerus from Fenwal during the [**] period preceding CUSTOMER’s competitors set forth on Exhibit I (the “Restricted Customers”) from featuring, displaying or advertising any product branded with any “Valvoline” or “V” trademark (a “Valvoline-Branded” product) more prominently than competing products of Alternative Suppliers offered by such notice; Restricted Customer and (Bii) During months [*] following prohibit each Restricted Customer from including mention of Valvoline-Branded products on exterior signage fixed on any building. If SUPPLIER is an exclusive supplier to a Restricted Customer, SUPPLIER shall not be permitted to supply any Valvoline-Branded product to such noticeRestricted Customer and shall prohibit such Restricted Customer from advertising or marketing any product as a Valvoline-Branded product; provided, Cerus however, that the foregoing shall purchase Sets in no way limit or restrict SUPPLIER from Fenwal at a rate equal supplying white label products or products that are not Valvoline-Branded products to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice; and Restricted Customer (C) During the [*] following such notice, Cerus shall purchase Sets from Fenwal at a rate equal to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice. [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDEDor any other party).

Supply and Purchase Commitments. (a) Subject to Cerus’ supply of (a) Platelet Wafers, Plasma Disks and [*]S-59 for the Sets and (b) S-303, GSH, RBC Filter Sets and RBC Processing Sets for the RBC Sets, during the Term of this Agreement, Fenwal Fresenius Kabi shall supply Cerus with purchase orders for Manufactured Products within the delivery times required under Section 2.4. Cerus shall purchase Manufactured Products from Fenwal Fresenius Kabi as set forth in Section 2.5. (b) Cerus shall purchase its requirements of Platelet Sets and Plasma Sets from Fenwal, subject to the following: (i) For the duration of Except as set forth in this Agreement and in any calendar yearsubsection “(i)”, Cerus shall purchase [ * ] of its requirements for Sets for the Territory from Fenwal a number Fresenius Kabi; provided, however, Cerus may purchase [ * ] of Sets equal to the greater of [*from a third party [ * ]. In any event; provided further, Cerus shall not be required permitted to purchase [*] in any given calendar year from Fenwal absent a written mutual agreement between Cerus and Fenwal stating such. Cerus is free to purchase [*] Sets from a third-qualified third party supplier or suppliers. Such purchases by Cerus at any time from third-party supplier(s) will not alter Cerus’ purchase obligations under binding firm purchase orders to Fenwal then as cover for commercial purposes in effect pursuant to Section 2.4 the event of this Agreementa Supply Disruption. (ii) In Except as set forth in this subsection “(ii)” and subsection “(iii)” below, and subject to successful completion of the event that Cerus provides [*] written notice activities required by Items “15 and 23” of termination the Funded Projects list in Exhibit F and as developed and defined by the Parties pursuant to Section 6.2(g) of this Agreement, then Cerus’ purchase requirements shall be modified as follows (without altering Cerus’ purchase obligations under binding firm purchase orders to Fenwal then in effect pursuant to Section 2.4 of this Agreement): (A) During the [*] months following such noticeArticle 6 below, Cerus shall purchase [ * ] of its requirements for RBC Sets for the Territory from Fresenius Kabi; provided, however, Cerus may purchase [ * ] of RBC Sets from Fenwal at a rate equal third party [ * ]; provided further, Cerus shall be permitted to [*] purchase RBC Sets from a qualified third party supplier as cover for commercial purposes in the event of a Supply Disruption. (iii) Except as set forth in this subsection “(iii)”, and subject to successful completion of the [*] for Sets purchased activities required by Cerus from Fenwal during Items “15 and 23” of the [*] period preceding such notice; (B) During months [*] following such noticeFunded Projects as developed and defined by the Parties pursuant to Article 6 below, Cerus shall purchase Sets from Fenwal at a rate equal to [*[ * ] of the [*its requirements for [ * ] for Sets purchased the Territory from Fresenius Kabi, except to the prohibited by existing contractual obligations; provided, however, Cerus may purchase [ * ] of [ * ] from Fenwal during the [*] period preceding such noticea third party [ * ]; and (C) During the [*] following such noticeprovided further, Cerus shall be permitted to purchase Sets [ * ] from Fenwal at a rate equal to [*] of the [*] for Sets purchased by Cerus from Fenwal during the [*] period preceding such notice. [*qualified third party supplier AMENDED AND RESTATED MANUFACTURING AND SUPPLY AGREEMENT (FRESENIUS KABI – CERUS) [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. as cover for commercial purposes in the event of a Supply Disruption. For clarity sake, it is understood by the Parties that Cerus currently has a contractual obligation to a third-party supplier for the manufacture and supply of at [ * ] of Cerus’ annual total requirements for such [ * ] in the [ * ], provided such requirements do not exceed such third-party supplier’s production capacity, and in the case of the [ * ], that Cerus has not implemented an [ * ]. It is further understood by the Parties that Cerus is party to a development agreement for such [ * ] and, upon validation and approval of such [ * ], the manufacture and supply of such [ * ] will be subject to certain purchase requirements currently being negotiated by Cerus and such potential third-party supplier. Any rights by Fresenius Kabi to manufacture, and obligations by Cerus to purchase, such [ * ] shall be subject to the rights and obligations with respect thereto to be set forth in the definitive manufacturing and supply agreement Cerus enters into with such third party supplier. It is further understood and agreed by the Parties that, in connection with any renewal rights Cerus may have with respect to extending the initial term of the applicable definitive agreements for the manufacture and supply of the [ * ], Cerus shall [ * ]. Fresenius Kabi shall thereafter [ * ] and Cerus shall [ * ]; provided, however, that [ * ].