Third Party Distributors. (a) Attached hereto as Exhibit B is a list of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts to terminate its distribution agreements in Phase I Countries with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***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. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess of the Termination Allocation for such country, increased by the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid to the terminated distributors therein. With respect to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree.
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Samples: Arrangements Agreement (Gen Probe Inc), Arrangements Agreement (Gen Probe Inc)
Third Party Distributors. Gilead shall have the right, with respect to all countries in the Territory other than the Xxxxxxx Countries, to engage a Third Party Distributor to Distribute Territory Combination Products. In the event Gilead decides to engage a Third Party Distributor with respect to any Territory Combination Product with respect to any country in Region A (other than a Gilead Take-Over Country) for which Gilead has not previously engaged a Third Party distributor for any of its products and Gilead desires to engage a Third Party Distributor for such country which Third Party Distributor does not already serve as a distributor for any Gilead Products in any country, (a) Attached hereto as Exhibit B is Gilead shall so notify Xxxxxxx in writing (the “ROFN Trigger Notice”) and (b) if Xxxxxxx notifies Gilead, within [*] after receiving a list of all third party distributors currently distributing GEN-PROBE's Products within ROFN Trigger Notice (the Phase I Countries“ROFN Period”), the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees that it desires to use all reasonable efforts to terminate its distribution agreements in Phase I Countries negotiate with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested Gilead with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties becoming Gilead’s exclusive distributor of one or both Territory Combination Products in any country of total amounts in excess of the Termination Allocation for such country, increased the Parties shall negotiate in good faith for [*] (or such longer period as agreed by the excessParties) (the “Negotiation Period”) an amendment to this Agreement (and, if anyapplicable, of the amount, if any, by which the Termination Allocation for Phase I Countries as Xxxxxxx Distributor Agreement) pursuant to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid such country would become a Xxxxxxx Country; provided, however, that neither Party will be obligated to the terminated distributors thereinenter into such an amendment. With respect to each If, following receipt of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements a ROFN Trigger Notice with respect to a country, (i) Xxxxxxx notifies Gilead, prior to the expiration of the ROFN Period, that it does not desire to negotiate to become Gilead’s exclusive distributor in such country, (ii) the ROFN Period expires without Gilead’s receipt of a notification from Xxxxxxx that it desires to negotiate to become Gilead’s exclusive distributor for the Territory Combination Product in such country or (in iii) Xxxxxxx notifies Gilead, prior to the case expiration of the Benelux countriesROFN Period, that it desires to negotiate to become Gilead’s exclusive distributor for the Territory Combination Product in such country, but the Negotiation Period expires before the Parties execute an amendment to this Agreement (and, if applicable, the Benelux region [ * ] = 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. CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24B-2 Xxxxxxx Distributor Agreement) pursuant to which such country would become a Xxxxxxx Country, then Gilead shall thereafter be considered as free to engage a unit), subject only Third Party Distributor to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agreeDistribute Territory Combination Products in such Gilead Country.
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Third Party Distributors. (a) Attached hereto as Exhibit B is a list of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts to terminate its distribution agreements in Phase I Countries with each of said distributors as promptly as possible, it being agreed that such efforts shall be an ongoing requirement during a reasonable period until success is achieved in each ***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. -2- <PAGE> such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess of the Termination Allocation for such country, increased by the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid to the terminated distributors therein. With respect to each of the Phase I Countries, the Termination Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements with respect to such country or (in the case of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agree.. (b) It is understood and agreed that GEN-PROBE may seek to repurchase the inventory of systems and reagents and the installed base of systems from each terminated distributor. GEN-PROBE undertakes to use reasonable efforts to reacquire the inventory of systems and reagents and the installed base of systems from each terminated distributor on the terms and conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated, upon completion of an appropriate audit, to purchase such inventory and systems at a price equal to the amount so paid by GEN-PROBE to the applicable terminated distributor for the relevant items. In each case, GEN-PROBE and BIOMERIEUX shall cooperate with each other in any reasonable arrangements designed to minimize any sales, use, value added and other taxes applicable to such transactions, including, by way of example, through the assignment by GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE shall use best efforts to procure the transfer to BIOMERIEUX of any and all product registrations obtained by the prior distributors. 2.2
Appears in 1 contract
Samples: Arrangements Agreement
Third Party Distributors. In the event that Genzyme fails to use commercially reasonable and diligent efforts to establish a Collaboration Product in a country identified in the Commercialization Plan for such Collaboration Product, or to fulfill market demand or meet the marketing and distribution goals for such country as set forth in the Commercialization Plan for such Collaboration Product, and such failure to perform is not cured within ninety (90) days of written notice thereof from GTC, then (a) Attached hereto as Exhibit B GTC may elect to cause Genzyme's rights under Section 6.2 hereof to market and sell such Collaboration Product in such country to terminate and (b) the Steering Committee shall promptly select a Third Party to be engaged by ATIII LLC to market and sell such Collaboration Product in such country; provided, however, that in the event that any such country is a list Major Market Country, any election made by GTC pursuant to clause (a) hereof shall be in lieu of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts any right to terminate its distribution agreements in Phase I Countries this Agreement that may arise under Section 13.2.1 (c) hereof with each respect to such failure to perform; provided further that any such termination of said distributors as promptly as possible, it being agreed that such efforts Genzyme's rights under Section 6.2 hereof shall be an ongoing requirement during on a reasonable period until success is achieved country-by-country basis and Genzyme's rights and obligations under Section 6.2 hereof with respect to other Collaboration Products in each ***Certain information on this page has been omitted such country and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess rest of the Termination Allocation Territory shall remain in full force and effect. Any such Third Party distributor selected by the Steering Committee pursuant to clause (b) above shall be required to execute a written agreement with ATIII LLC pursuant to which such Third Party shall agree to (i) use commercially reasonable and diligent efforts to comply with the strategy, policies and procedures set forth in each Commercialization Plan for such country, increased by including without limitation the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as responsibilities described in Section 6.5 above (with references therein to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid Genzyme being deemed to refer to such Third Party and references therein to the terminated distributors therein. With respect Territory being deemed to each refer to the applicable country for purposes of the Phase I Countries, the Termination Allocation this clause (adjusted as aforesaidi)) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements and (ii) reasonably cooperate with respect to such country or (Genzyme in the case preparation of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation each Commercialization Plan or update thereto for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agreesuch Collaboration Product.
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Third Party Distributors. In the event that Genzyme fails to use commercially reasonable and diligent efforts to establish a Collaboration Product in a country identified in the Commercialization Plan for such Collaboration Product, or to fulfill market demand or meet the marketing and distribution goals for such country as set forth in the Commercialization Plan for such Collaboration Product, and such failure to perform is not cured within ninety (90) days of written notice thereof from GTC, then (a) Attached hereto as Exhibit B GTC may elect to cause Genzyme's rights under Section 6.2 hereof to market and sell such Collaboration Product in such country to terminate and (b) the Steering Committee shall promptly select a Third Party to be engaged by ATIII LLC to market and sell such Collaboration Product in such country; PROVIDED, HOWEVER, that in the event that any such country is a list Major Market Country, any election made by GTC pursuant to clause (a) hereof shall be in lieu of all third party distributors currently distributing GEN-PROBE's Products within the Phase I Countries, the Phase II Countries and the Phase III Countries as of the date hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts any right to terminate its distribution agreements in Phase I Countries this Agreement that may arise under Section 13.2.1 (c) hereof with each respect to such failure to perform; PROVIDED FURTHER that any such termination of said distributors as promptly as possible, it being agreed that such efforts Genzyme's rights under Section 6.2 hereof shall be an ongoing requirement during on a reasonable period until success is achieved country-by-country basis and Genzyme's rights and obligations under Section 6.2 hereof with respect to other Collaboration Products in each ***Certain information on this page has been omitted such country and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. such country but shall not be deemed to require aggregate payments by GEN-PROBE to any such third parties in any country of total amounts in excess rest of the Termination Allocation Territory shall remain in full force and effect. Any such Third Party distributor selected by the Steering Committee pursuant to clause (b) above shall be required to execute a written agreement with ATIII LLC pursuant to which such Third Party shall agree to (i) use commercially reasonable and diligent efforts to comply with the strategy, policies and procedures set forth in each Commercialization Plan for such country, increased by including without limitation the excess, if any, of the amount, if any, by which the Termination Allocation for Phase I Countries as responsibilities described in Section 6.5 above (with references therein to which all the designated distribution agreements have been previously terminated by GEN-PROBE exceeded the amount actually paid Genzyme being deemed to refer to such Third Party and references therein to the terminated distributors therein. With respect Territory being deemed to each refer to the applicable country for purposes of the Phase I Countries, the Termination Allocation this clause (adjusted as aforesaidi)) shall be paid by BIOMERIEUX to GEN-PROBE within five days of certification by GEN-PROBE that one or more agreements have been reached for the termination of all the distribution agreements and (ii) reasonably cooperate with respect to such country or (Genzyme in the case preparation of the Benelux countries, the Benelux region to be considered as a unit), subject only to the payment of termination amounts to the Existing Distributor(s) not exceeding the amounts described above. The Termination Allocation each Commercialization Plan or update thereto for the Phase II Countries and the Phase III Countries shall be paid as the parties mutually agreesuch Collaboration Product.
Appears in 1 contract
