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Exhibit 10.4


 


Execution Version


 


	April 27, 2010


 


EUSA PHARMA (EUROPE) LIMITED


 


— and —


 


INNOCOLL PHARMACEUTICALS LIMITED,


 


— and —


 


SYNTACOLL AG


 


	Amended and Restated Manufacture and Supply Agreement




 







    	 



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Table of Contents


 


	 	 	Page
	 	 	 
	ARTICLE I DEFINITIONS	1
	 	 
	ARTICLE II SUPPLY BY INNOCOLL	9
	 	 	 
	2.1	Commitment to Supply	9
	 	 	 
	2.2	Compliance	9
	 	 	 
	2.3	Facilities, Equipment and Materials	9
	 	 	 
	2.4	Responsibility	9
	 	 	 
	2.5	Specification Changes	10
	 	 	 
	ARTICLE III STANDARD TERMS OF SUPPLY OF PRODUCT	11
	 	 	 
	3.1	Labeling and Packaging	11
	 	 	 
	3.2	Manufacturing	11
	 	 	 
	3.3	Manufacturing Regulatory Matters	12
	 	 	 
	3.4	Training and Experience of Personnel	13
	 	 	 
	3.5	Materials Suppliers	13
	 	 	 
	3.6	Documentation for Governmental Authority Requirements	14
	 	 	 
	3.7	Monitoring and Recordkeeping; Operating Procedures	14
	 	 	 
	3.8	Inspection and Audit	14
	 	 	 
	ARTICLE IV FORECASTING AND ORDERING	14
	 	 	 
	4.1	General	14
	 	 	 
	4.2	Forecasts	15
	 	 	 
	4.3	Ordering Under the Forecast	15
	 	 	 
	4.4	Addressees for Correspondence	15
	 	 	 
	ARTICLE V SHIPPING AND DELIVERY	16
	 	 	 
	5.1	Shipping and Delivery Dates	16
	 	 	 
	5.2	Terms of Delivery	16
	 	 	 
	5.3	Accompanying Documentation	16
	 	 	 
	5.4	Retention of Samples	16
	 	 	 
	ARTICLE VI INSPECTION AND DEFECTIVE PRODUCTS; PRODUCT RECALL; REGULATORY MATTERS	17
	 	 	 
	6.1	Inspection by EUSA	17
	 	 	 
	6.2	Defective Products	17
	 	 	 
	6.3	Recalls and Withdrawals	18
	 	 	 
	6.4	Filing & Maintenance of Regulatory Approvals	18
	 	 	 
	6.5	Assistance	18


 




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Table of Contents

(continued)


 


	 	 	Page
	 	 	 
	6.6	Manufacturing	19
	 	 	 
	6.7	Notice	19
	 	 	 
	ARTICLE VII FAILURE TO SUPPLY	19
	 	 	 
	7.1	Shortages	19
	 	 	 
	7.2	Manufacturing by EUSA During Shortage	19
	 	 	 
	7.3	Costs Incurred as a Result of Innocoll’s Failure to Supply	20
	 	 	 
	7.4	Reservation of Rights	20
	 	 	 
	ARTICLE VIII FINANCIAL PROVISIONS	20
	 	 	 
	8.1	Supply Price	20
	 	 	 
	8.2	Setting the Supply Price	21
	 	 	 
	8.3	Supply Price ***	21
	 	 	 
	8.4	Manner of Payments	21
	 	 	 
	8.5	Invoices; Timing of Payments; Interest	21
	 	 	 
	8.6	Tax Withholding	21
	 	 	 
	8.7	Outstanding Invoices	22
	 	 	 
	8.8	Sales Share	22
	 	 	 
	8.9	Reports	25
	 	 	 
	8.10	Payment Term	25
	 	 	 
	8.11	Financial Audit	25
	 	 	 
	ARTICLE IX GRANT OF RIGHTS; COMMERCIALIZATION	26
	 	 	 
	9.1	Licenses to EUSA and Innocoll	26
	 	 	 
	9.2	Third Party Agreements	27
	 	 	 
	9.3	No Implied Licenses	27
	 	 	 
	9.4	Liability for Affiliates and Third Parties	27
	 	 	 
	9.5	Restrictions on Off-Label Promotion	27
	 	 	 
	9.6	Promotional Materials	28
	 	 	 
	9.7	EUSA Ownership of Promotional Materials	28
	 	 	 
	9.8	Compliance with Laws	29
	 	 	 
	ARTICLE X CONFIDENTIALITY	29
	 	 	 
	10.1	Confidential Information	29
	 	 	 
	10.2	Confidentiality Obligations	29
	 	 	 
	10.3	Permitted Disclosure and Use	30
	 	 	 
	10.4	Notification	30


 




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Table of Contents

(continued)


 


	 	 	Page
	 	 	 
	10.5	Filing of this Agreement	31
	 	 	 
	10.6	Use of Names	31
	 	 	 
	10.7	Confidentiality of this Agreement	31
	 	 	 
	10.8	Disclosures Under Existing NDA	31
	 	 	 
	10.9	Ownership; Developments	31
	 	 	 
	ARTICLE XI REPRESENTATIONS, WARRANTIES AND COVENANTS	32
	 	 	 
	11.1	Representations and Warranties of Innocoll for Product	32
	 	 	 
	11.2	Mutual Representations and Warranties	33
	 	 	 
	11.3	Disclaimer of Warranty	34
	 	 	 
	ARTICLE XII INDEMNIFICATION; DEFENSE OF THIRD PARTY CLAIMS	34
	 	 	 
	12.1	Indemnity by Innocoll	34
	 	 	 
	12.2	Indemnity by EUSA	35
	 	 	 
	12.3	Procedure for Indemnification	35
	 	 	 
	12.4	Limitation of Liability	36
	 	 	 
	12.5	Defense of Third Party Infringement Claims	36
	 	 	 
	ARTICLE XIII INSURANCE	36
	 	 	 
	13.1	Required Insurance Coverage	36
	 	 	 
	ARTICLE XIV TERM AND TERMINATION	36
	 	 	 
	14.1	Term	36
	 	 	 
	14.2	Termination	37
	 	 	 
	ARTICLE XV AGREEMENT RIGHTS AND DUTIES UPON TERMINATION	38
	 	 	 
	15.1	***	38
	 	 	 
	15.2	Pending Purchase Orders	38
	 	 	 
	15.3	Outstanding Payment	38
	 	 	 
	15.4	Return of Materials	39
	 	 	 
	15.5	Accrued Rights	39
	 	 	 
	15.6	Survival	39
	 	 	 
	ARTICLE XVI GOVERNING LAW; DISPUTE RESOLUTION	39
	 	 	 
	16.1	Governing Law	39
	 	 	 
	16.2	Consent to Jurisdiction and Forum Selection	39
	 	 	 
	16.3	Injunctive Relief	40
	 	 	 
	ARTICLE XVII GENERAL PROVISIONS	40
	 	 	 
	17.1	Notices	40


 




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(continued)


 


	 	 	Page
	 	 	 
	17.2	Independent Status	41
	 	 	 
	17.3	Force Majeure	41
	 	 	 
	17.4	Entire Agreement; Amendment and Waiver	41
	 	 	 
	17.5	Headings; Construction; Certain Conventions	41
	 	 	 
	17.6	Assignment	42
	 	 	 
	17.7	Severability	42
	 	 	 
	17.8	Further Assurances	42
	 	 	 
	17.9	Counterparts	42


 




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SCHEDULES AND EXHIBITS


 


	SCHEDULE 1.36	PRODUCT SPECIFICATIONS
	SCHEDULE 3.1.1	PACKAGING AND LABELING SPECIFICATIONS, MATERIALS AND COMPONENTS
	SCHEDULE 3.3.1	MANUFACTURING STANDARDS AND PROCESS
	SCHEDULE 6.1.1	QUALITY CONTROL AND ASSURANCE PROCEDURES
	SCHEDULE 11.1.9	NON-COMPETING PRODUCTS


 




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AMENDED AND RESTATED

MANUFACTURE AND SUPPLY AGREEMENT


 


This Amended and Restated
Manufacture and Supply Agreement (this “Agreement”) is entered into as of April 27, 2010 (the “Restated
MSA Effective Date”) by and among Innocoll Pharmaceuticals Limited, a corporation organized and existing under the laws
of Ireland (“Innocoll Pharmaceuticals”), and Syntacoll AG, a company organized under the laws of Switzerland
(“Syntacoll”) all located at c/o Innocoll Holdings, Inc. 42662 Kitchen Prim Ct., Ashburn, VA 20148 (Innocoll
Pharmaceuticals and Syntacoll shall collectively be referred to herein as “Innocoll”),


 


— and —


 


EUSA Pharma (Europe) Limited,
a corporation organized and existing under the laws of England, located at The Magdalen Centre, Oxford Science Park, Oxford, England,
UK (“EUSA”). Innocoll and EUSA are sometimes referred to herein individually as a “Party”
and collectively as the “Parties”.


 


RECITALS


 


WHEREAS, EUSA and
Innocoll Pharmaceuticals entered into an Asset Purchase Agreement, dated August 17, 2007 (the “Asset Purchase Agreement”),
under which Innocoll Pharmaceuticals (and Syntacoll as related to the C-Implant CE Marks (as defined therein)) sold and EUSA purchased
the Assets (as defined in the Asset Purchase Agreement);


 


WHEREAS, in accordance
with the terms of the Asset Purchase Agreement and related agreements, EUSA, Innocoll Pharmaceuticals and Syntacoll entered into
a Manufacture and Supply Agreement on or about August 17, 2007 (the “MSA”) relating to the manufacture
and supply by Innocoll to EUSA of certain products, including the Product (as hereinafter defined); and


 


WHEREAS, pursuant
to a certain Settlement Agreement of even date herewith, the Parties desire to amend and restate the MSA in its entirety, effective
from and after the Restated MSA Effective Date, as set forth below;


 


NOW, THEREFORE,
in consideration of the mutual promises, covenants and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:


 


ARTICLE
I

DEFINITIONS


 


For purposes of this Agreement,
the following initially capitalized terms, whether used in the singular or plural, shall have the following meanings:


 




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1.1           “Act”
means the United States Federal Food, Drug and Cosmetic Act, and the rules and regulations promulgated thereunder, as amended from
time to time, including, without limitation regulations providing for cGMP.


 


1.2           “Affiliate”
means any individual, corporation, company, partnership, trust, limited liability company, association or other business entity
(“Person”) which directly or indirectly controls, is controlled by or is under common control with the Party
in question. As used in this definition of “Affiliate,” the term “control” shall mean, as
to any Person, (a) direct or indirect ownership of fifty percent (50%) or more of the voting interests or other ownership
interests in the Person in question (or such lesser percentage which is the maximum allowed to be owned by such Person in a particular
jurisdiction); (b) direct or indirect ownership of fifty percent (50%) or more of the interest in the income of the Person
in question; or (c) possession, directly or indirectly, of the power to direct or cause the direction of management or policies
of the Person in question (whether through ownership of securities or other ownership interests, by contract or otherwise). Notwithstanding
the foregoing, the owners of preferred stock (or common stock issued upon conversion thereof) or common stock upon conversion of
convertible promissory notes of a Party such as financial institutions, venture capital funds and private equity investors will
not be its “Affiliates” for purposes of this Agreement.


 


1.3           “Batch”
means, with respect to the Product, a specific quantity of the Product that is intended to have uniform character and quality,
within specified limits, and is produced according to a single Manufacturing order during the same cycle of Manufacture.


 


1.4           “Biomet”
means Biomet Orthopaedics Switzerland GmbH.


 


1.5           “BurnsAdler
Agreement” means the License Agreement dated as of July 7, 2006 between Innocoll and BurnsAdler Pharmaceuticals,
Inc. (“BurnsAdler”), as amended.


 


1.6           “Business
Day” means any Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in Philadelphia,
Pennsylvania or London, England are authorized by Law to close.


 


1.7           “Calendar
Quarter” means that three (3) month period of each Calendar Year ending March 31, June 30, September 30
and December 31; provided, however, that the calendar quarter in which this Agreement (in its entirety) expires
or is terminated shall extend from the first day of such calendar quarter until the effective date of such expiration or termination
of this Agreement.


 


1.8           “Calendar
Year” means (a) for the first Calendar Year, the period commencing on the Restated MSA Effective Date and ending
on December 31 of the same year, (b) for each successive period beginning on January 1 and ending twelve (12) consecutive
calendar months later on December 31, and (c) for the Calendar Year in which this Agreement expires or is


 




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terminated (in its entirety), the period beginning
on January 1 of such calendar year and ending on the effective date of the expiration or termination of this Agreement.


 


1.9           “cGMP”
or “current Good Manufacturing Practices” means all applicable standards relating to manufacturing practices
for fine chemicals, active pharmaceutical ingredients, intermediates, bulk products, finished pharmaceutical products and medical
devices, including (a) the principles detailed in the U.S. Current Good Manufacturing Practices, 21 C.F.R. Parts 210
and 211, European Directive 2003/94/EC laying down the principles and guidelines of good manufacturing practice in respect of medicinal
products for human use and investigational medicinal products for human use and The Rules Governing Medicinal Products in the European
Community, Volume IV Good Manufacturing Practice for Medicinal Products, Directive 93/42/EEC concerning medical devices
and all associated guidance, each may be amended from time to time, (b) the principles detailed in the ICH Q7A guidelines
and (c) if EUSA notifies Innocoll that EUSA intends to Commercialize the Product in a country, Laws promulgated by any Governmental
Authority (including all guidance documents, advisory opinions, compliance policy guides and guidelines promulgated in such country)
in such country having jurisdiction over the manufacture of the Product.


 


1.10         “C-Implant”
means any lyophilized collagen sponge impregnated with gentamicin that is implanted during a surgical procedure where the wound
is closed by primary intention (for example, surgical closure with stitches, clips, etc.), with the intention of providing haemostasis
and/or prevention of surgical site infection.


 


1.11         “Commercialization”
or “Commercialize” means activities directed to the marketing, promotion, selling, or offering for sale of a
product, including pre-marketing, advertising, educating, planning, marketing, promoting, distributing and post-marketing safety
surveillance and reporting.


 


1.12         “Commercially
Reasonable Efforts” means, with respect to the efforts to be expended by a Party to achieve any objective, the reasonable,
diligent efforts to accomplish such objective as a similarly situated party in the pharmaceutical industry would normally use to
accomplish a similar objective under similar circumstances, with a product at a similar stage in its development or product life
and of similar market potential. The obligation to use “Commercially Reasonable Efforts” does not require the
expenditure of funds, commitment of resources or the incurrence of material liabilities in a manner or to an extent that would
be considered, by a similarly situated commercial party, to be unreasonable or disproportionate to the benefit to be obtained,
taking into account then-prevailing conditions and circumstances.


 


1.13         “C-Topical”
means any lyophilized collagen sponge impregnated with gentamicin that is applied to intact or broken skin, or to the base of an
ulcer crater in a situation such as diabetic foot ulcer, in which no attempt is made to close the skin/wound by primary intention
(for example, surgical closure with stitches, clips etc.) and the open wound/ulcer is left to close


 




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on its own (i.e., secondary
intention), with the intention of providing haemostasis and/or treatment or prevention of infection.


 


1.14         “Development”
means non-clinical and clinical research and drug development activities, including without limitation toxicology, test method
development and stability testing, process development, formulation development, delivery system development, quality assurance
and quality control development, statistical analysis, clinical studies (including pre- and post-approval studies), regulatory
affairs, and product approval and clinical study regulatory activities (excluding regulatory activities directed to obtaining pricing
and reimbursement approvals).


 


1.15         “Development
Data” means all substantive or material information with respect to the Development of the Product for seeking Regulatory
Approval, including clinical data compiled with respect to the Product and all information and data filed with any Regulatory Authority
with respect to the Product, as soon as reasonably practicable after such information, data or results become available or compiled,
including any drafts and final versions of any study reports.


 


1.16         “DMF”
means, with respect to the Product, the Drug Maker Files for Manufacturing the Product filed with the applicable Regulatory Authorities
in each country in the Territory.


 


1.17         “European
Union” or “EU” means the countries of the European Union, as it is constituted as of the Original
MSA Effective Date and including any countries that become members of the European Union during the Term.


 


1.18         “Existing
Competitor” means Biomet, Baxter International, Inc. and Resorba Wundversorgung GmbH + Co. KG.


 


1.19         “FDA”
means the United States Food and Drug Administration and any successor agency thereto.


 


1.20         “Governmental
Authority” means any court, tribunal, arbitrator, agency, legislative body, commission, department, bureau, official
or other entity of (a) any government of any country, (b) a federal, state, province, region, local, county, city or
other political subdivision thereof or (c) any supranational body including without limitation the European Medicines Agency.


 


1.21         “Latent
Defects” means any defect other than those defects that should be readily discoverable through the quality control and
assurance procedures set forth in Schedule 6.1.1.


 


 


1.22         “Law”
or “Laws” means the laws, statutes, rules, codes, regulations, orders, judgments and/or ordinances of a Governmental
Authority including, without limitation, the


 




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United States Federal Food,
Drug and Cosmetic Act, European Directives 2001/83/EC on the Community Code for medicinal products and 93/42/EEC concerning medical
devices, and any implementing legislation of the EU Member States, as any of the same may be amended from time to time, and directives,
regulations, promulgations, guidance and guidelines promulgated thereunder having jurisdiction over or related to the Development,
registration, approval, Manufacture, Commercialization and use of Product in the Territory, as may be in effect from time to time.


 


1.23         “Losses”
means any and all amounts paid or payable to Third Parties with respect to a Third Party Claim, including without limitation, damages
(including all incidental and consequential damages), deficiencies, defaults, awards, settlement amounts, assessments, fines, dues,
penalties, costs, liabilities, obligations, taxes, liens, losses, lost profits, fees and expenses (including, without limitation,
court costs, interest and reasonable fees of attorneys, accountants and other experts).


 


1.24         “Manufacture”
means, with respect to the Product for which Regulatory Approval has been obtained, all activities related to the manufacturing
of the Product, including but not limited to manufacturing supplies for Development, manufacturing supplies for commercial sale,
packaging, labeling, quality control, storage, in-process and finished Product testing. The terms “Manufacture” and
“Manufactured” refer to the act of Manufacturing.


 


1.25         “Manufacturing
Facility” or “Manufacturing Facilities” means, with respect to the Product, those Innocoll facilities
for which Regulatory Approval has been obtained, before or after the Original MSA Effective Date, to engage in the Manufacture
of the Product.


 


1.26         “Net
Sales” means the gross invoiced sales revenues received or receivable by EUSA or its Affiliates (or Permitted Sublicensees
or any permitted Third Party authorized by EUSA or any of the foregoing, provided, that Net Sales shall not include sales of the
Product by such Permitted Sublicensee or permitted Third Party where the Product has first been sold by EUSA or its Affiliates
to such Third Party) from sales of the Product, less the following items: (a) discounts allowed in amounts ***; (b) ***; and (c) charges incurred in connection with *** to the extent separately stated on an invoice.
In the case of any sale of the Product for value other than in an arm’s length
transaction exclusively for cash, such as barter or counter-trade, Net Sales shall be determined by referencing Net Sales at which
substantially similar quantities of the Product in the same country in the Territory are sold in an arm’s length transaction
for cash. If EUSA or its Affiliates (or Permitted Sublicensees or any permitted Third Party authorized by EUSA) chooses to sell
the Product together with another product with composite pricing, Net Sales for the Product will be recalculated based on the then-average
price of the Product to the applicable customer category when the Product is sold in the same country


 






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in the Territory independently
of any other product. The supply of the Product (x) as commercial samples, (y) as charitable donations, or (z) for
use in clinical studies shall be excluded from the computation of Net Sales.


 


1.27         “New
Competitor” means any Person other than an Existing Competitor who commences the sale of any C-Implant product in the
EU after the Original MSA Effective Date.


 


1.28         “Non-Current
Intellectual Property” means the ***.


 


1.29         “Original
MSA Effective Date” means August 17, 2007.


 


1.30         “Product”
means any C-Implant product owned or Commercialized by EUSA, its Affiliates and/or Permitted Sublicensees.


 


1.31         “Quality
Agreement” means, with respect to the Product, the product quality agreement dated as of April 6, 2008 entered into
by the Parties.


 


1.32         “Quarterly
Minimum” means with respect to the Product in the Territory existing as of the Restated MSA Effective Date the dollar
amount of the Product purchased by EUSA from Innocoll as follows: (a) for the third (3rd) Calendar Quarter of 2010,
the Quarterly Minimum shall be ***, (b) for the fourth (4th) Calendar Quarter of 2010 and the first three
(3) Calendar Quarters of 2011, the Quarterly Minimum shall be ***, (c) for the fourth (4th) Calendar Quarter
of 2011, the Quarterly Minimum shall be *** and (d) for each of the next Calendar Quarters through the third (3rd)
Calendar Quarter of 2014, the Quarterly Minimum shall be ***. Notwithstanding the foregoing, (I) during the first month of
each of the Calendar Quarters up until the third (3rd) Calendar Quarter of 2011, EUSA may notify Innocoll
in writing that ***, then within a reasonable time following Innocoll’s receipt of such
notice the Parties will discuss and agree to ***, and further Innocoll shall have the right to negotiate ***, and
(II) from and after the fourth (4th) Calendar Quarter of 2011, EUSA may notify Innocoll in writing that a ***,


 




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then within a reasonable
time following Innocoll’s receipt of such notice the Parties will discuss and agree to a mutually acceptable *** in the Quarterly Minimum for ***, and further if EUSA (x) *** or (y) *** pursuant to this Section and *** in certain of
those countries in the Territory other than the Western Europe Countries.


 


1.33         “Regulatory
Approval” means all approvals (including, without limitation, where applicable, pricing and reimbursement approval and
schedule classifications), product and/or Manufacturing Facility licenses, conformity assessments, registrations or authorizations
of any Regulatory Authority necessary for the Development, Manufacture, use and Commercialization of the Product in the Territory.


 


1.34         “Regulatory
Authority” means a Governmental Authority or certification organization designated by a Governmental Authority, within
a regulatory jurisdiction in the Territory, with the authority to grant any Regulatory Approvals in the Territory or having jurisdiction
over the Development, registration, approval Manufacture, Commercialization or use of Product in the Territory, including the FDA
and the EMEA.


 


1.35         “Regulatory
Standards” means (a) obtaining and maintaining any and all permits, licenses, filings, approvals and certifications
required by Governmental Authorities, and compliance with cGMPs, applicable to any Manufacturing or Manufacturing Facility, and
(b) any Laws that apply to any Manufacturing or Manufacturing Facility.


 


1.36         “Specifications”
means, with respect to the Product, the Manufacturing, quality assurance and quality release specifications for the Product as
detailed in the relevant Regulatory Approvals attached as Schedule 1.36, as such specifications may be modified from time
to time in accordance with Section 2.5.


 


1.37         “Territory”
means the entire world except for the United States of America and its possessions and territories (the “U.S.”) For
clarity, the Territory includes the countries of South and Central America and the Caribbean (but not the portions thereof that
are possessions or territories of the United States of America).


 


1.38         “Third
Party” means any Person other than Innocoll or EUSA or their respective Affiliates.


 


1.39         “Western
Europe Countries” shall mean France, Italy, United Kingdom, Republic of Ireland, Spain, Germany, Portugal, Austria, Belgium,
the Netherlands, Luxembourg, Switzerland, Norway, Sweden, Denmark, Finland, Greece and Poland.


 




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1.40         Additional
Definitions.   Each of the following definitions is set forth in the Section of this Agreement indicated below:


 


	 	Section
	Agreement	Introduction
	Agreement Period	7.2
	Asset Purchase Agreement	Recitals
	Biomet Agreement	11.1.9
	Biomet Product	11.1.9
	Breaching Party	14.2.1
	Claim	12.3
	Competing Product	11.1.9
	Confidential Information	10.1
	Data License	9.1
	Disclosing Party	10.1
	Discretionary Specification Changes	2.5.2
	EUSA	Introduction
	EUSA Development Data	9.1.1
	Existing NDA	10.8
	Failure	7.2
	FM Period	14.2.2
	Force Majeure Event	17.3
	Forecast	4.2
	Imminent Failure	7.2
	Implantation	11.1.9
	Indemnitee	12.3
	Indemnitor	12.3
	Initial Term	10.1
	Innocoll	Introduction
	Innocoll Development Data	9.1.1
	Innocoll Pharmaceuticals	Introduction
	Manufacture Approval Activities	7.2
	MSA	Recitals
	Parties	Introduction
	Party	Introduction
	Permitted Sublicensee	9.2
	Person	1.2
	Purchase Order	4.3.1(a)
	Receiving Party	10.1
	Renewal Term	14.1.1
	Required Specification Changes	2.5.1
	Restated MSA Effective Date	Introduction
	Sales Reports	8.9
	Samples	3.2.4
	Share of Japanese Net Revenue	8.8.2


 




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	 	Section
	Share of Specific Countries Net Sales	8.8.1(b)
	Share of Territory (Ex Specific Countries) Net Sales	8.8.1(a)
	Shipment Samples	5.4
	Specification Costs	2.5.3
	Supply Price	8.1
	Syntacoll	Introduction
	Taxes	8.6
	Term	10.1
	Third Party Agreement	7.2
	Third Party Claim	12.3
	Transfer of Manufacture of Product	7.2
	U.S.	1.37
	Withholding Party	8.6
	 	 


ARTICLE
II

SUPPLY BY INNOCOLL


 


2.1           Commitment
to Supply.   Upon the terms and subject to the conditions of this Agreement, (a) Innocoll shall supply EUSA or its permitted
designees with its or their total requirements of the Product in finished packaged form for the commercial supply of the Product
in the Territory pursuant to Purchase Orders delivered from time to time by EUSA to Innocoll in accordance with Section 4.3 and
(b) subject to the provisions of Article 7 below, EUSA and its permitted designees shall purchase exclusively from Innocoll its
or their total requirements of the Product to be sold in the Territory.


 


2.2           Compliance.  
Innocoll shall Manufacture and supply to EUSA or its permitted designee or sublicensee Product in accordance with the Specifications,
cGMPs and all Laws.


 


2.3           Facilities,
Equipment and Materials.   Innocoll agrees to provide at Innocoll’s own cost and expense, all Manufacturing Facilities,
equipment, machinery, materials complying with the Specifications and labor necessary for the compliant, regulatory approved Manufacture
and supply of Product in accordance with Regulatory Standards and the terms and conditions of this Agreement.


 


2.4           Responsibility.  
Unless otherwise specified herein or expressly consented to in writing by EUSA, as between the Parties, Innocoll shall be solely
responsible for performance of all activities necessary for EUSA to be supplied with Product as contemplated hereunder. Unless
provided otherwise herein, a Party sublicensing, subcontracting or otherwise delegating activities to be performed under this
Agreement to an Affiliate, Third Party or other designee (including without limitation, in the case of Innocoll the delegation
of the Manufacturing and related activities to Syntacoll) guarantees and warrants the related performance of any responsibilities
so delegated.


 




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2.5          Specification
Changes.


 


2.5.1        Required
Specification Changes.   For changes to the Specifications that are required by Laws (collectively “Required Specification
Changes”), EUSA and Innocoll shall cooperate in making such changes and use Commercially Reasonable Efforts to implement
such changes in compliance with such Laws and as promptly as practicable.


 


2.5.2        Discretionary
Specification Changes.   For changes to the Specifications that are not Required Specification Changes (collectively “Discretionary
Specification Changes”), EUSA and Innocoll must each agree to any Discretionary Specification Changes and shall, to
the extent commercially reasonable under the circumstances, cooperate in making such changes, and each agrees that it shall not
unreasonably withhold its consent to such Discretionary Specification Changes.


 


2.5.3        Costs
of Specification Changes.   All internal and external costs, including, without limitation, obsolete raw materials, work-in-process,
Product, packaging and labeling materials, regulatory expenses and capital costs (“Specification Costs”) associated
with Required Specification Changes or Discretionary Specification Changes shall be borne by the Parties as follows:


 


(a)          Any
Specification Costs associated with Required Specification Changes required by Laws in the Territory shall be borne by EUSA for
Product in the Territory, unless the Required Specification Changes apply to the Product in a country in which the marketing authorization
is held by Innocoll, in which case the Specification Costs shall be borne by Innocoll;


 


(b)          Any
Specification Costs associated with Required Specification Changes required by Laws outside the Territory will be borne by Innocoll;


 








(c)          Any
Specification Costs associated with a Discretionary Specification Change will be borne by the Party initiating such a change; and


 


(d)          Notwithstanding
the foregoing, all Specification Costs required for the first Required Specification Change for each country upon the transfer
of Regulatory Approvals for such country to EUSA, including, but not limited to, Specification Costs associated with changes to
package inserts, and secondary labels (including design and plate modifications) shall be at the sole expense of Innocoll.


 






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ARTICLE
III

STANDARD TERMS OF SUPPLY OF PRODUCT


 


3.1          Labeling
and Packaging.


 


3.1.1           Innocoll
shall supply EUSA with the Product packaged in EUSA’s packaging. The specifications for the layout of the secondary packaging
material for the Product, including package inserts, labels and other elements shall be provided by EUSA within sixty (60) days
prior to launch of the Product in each country in the Territory. All costs, including Specification Costs, associated with the
initial change of the packaging of the Product for each country to conform to the packaging and labeling layouts provided by EUSA
shall be borne solely by Innocoll. Thereafter, EUSA may from time to time request changes to the packaging or labeling layouts
listed in Schedule 3.1.1. Such subsequent changes to the packaging or labeling layouts listed in Schedule 3.1.1 shall be promptly
implemented by Innocoll at EUSA’s reasonable cost.


 


3.1.2           Innocoll
shall purchase the primary packaging materials and components described in Schedule 3.1.1 according to specifications to which
EUSA has provided its prior written consent under Section 3.1.


 


3.2          Manufacturing.


 


3.2.1           Maintenance
of Backup. Innocoll shall maintain and execute commercially reasonable backup and disaster recovery practices and procedures
relating to the supply of the Product hereunder and shall use its Commercially Reasonable Efforts to implement a risk management
plan.


 


3.2.2           Inventory
and Supply Update. Innocoll shall maintain an inventory of the Product and the materials necessary to Manufacture the Product
in accordance with its normal practices and so as to ensure fulfillment of its supply obligations herein. Furthermore, as soon
as it is reasonably practicable to do so, the Parties shall establish, in writing, a minimum inventory quantity to be maintained
during the term of this Agreement. Not later than fifteen (15) Business Days after the end of each Calendar Quarter, Innocoll
shall perform a count of and report to EUSA the inventory of the Product intended for delivery hereunder to EUSA being held by
Innocoll as of the end of such Calendar Quarter.


 


3.2.3           Export
License. Innocoll shall, at Innocoll’s expense, be responsible for obtaining and maintaining any and all export or import
licenses or clearances relating to the active pharmaceutical ingredient and bulk vials of, and other raw materials used to produce
the Product, together with any and all Manufacturing licenses and authorizations from appropriate Governmental Authorities which
are necessary for the Manufacture of the Product.


 






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3.2.4           Records,
Retained Samples and Storage.   Innocoll shall, and shall cause its Affiliates and Third Party manufacturers to, retain samples
and maintain records from each Batch of Products for a period required by applicable Laws for record keeping, testing and regulatory
purposes or specified in the Quality Agreement (“Samples”). When storing Product, Innocoll shall, and shall
cause its Affiliates and Third Party manufacturers to, comply with and maintain all storage facilities in compliance with Specifications
and in accordance with cGMPs and applicable Laws, and perform ongoing stability testing of Product during such storage.


 


3.2.5           Manufacturing
Facilities. The Product, or any components thereof, being sold to EUSA hereunder shall only be Manufactured at the Manufacturing
Facilities. Should Innocoll desire to change or add any additional Manufacturing Facilities for the Product for the Territory,
or any component thereof, to a site other than those designated in the then-current applicable Regulatory Approval and Specifications,
Innocoll shall notify EUSA in writing in advance of any proposed change or addition. Innocoll shall not change Manufacturing Facilities
for the Product for the Territory, or any component thereof, to be supplied to EUSA except in accordance with the authorization
of the competent Regulatory Authority (if required) and this Section 3.2.5. EUSA shall not be obliged to purchase Product from
any changed Manufacturing Facility until such time as the required Regulatory Approvals for the Manufacturing Facility itself
and for use of such facility to Manufacture Product have been obtained. The Parties will cooperate to obtain the required Regulatory
Approvals for the use of any additional facilities to Manufacture Product. EUSA and Innocoll, as applicable, will notify the other
Party in writing promptly after any such Regulatory Approval is obtained by it. The Parties agree, in relation to costs associated
with any change of, or to, the Manufacturing Facilities, such costs shall be the sole responsibility of Innocoll (unless such
change is made at the request of EUSA, in which each case such costs shall be the sole responsibility of EUSA).


 


3.3          Manufacturing
Regulatory Matters.


 


3.3.1           Adherence
to Manufacturing Standards and Processes. In Manufacturing the Product, Innocoll agrees to, and shall cause its permitted
designees (including Syntacoll) to, adhere to: (a) the quality standards and processes set forth in Schedule 3.3.1; (b)
Laws, including cGMP; (c) the Specifications; (d) the Quality Agreement(s); and (e) any additional Manufacturing standards agreed
to in writing by the Parties. No changes to Schedule 3.3.1 may be made without the prior written agreement of EUSA, save
that Innocoll may implement any urgent changes specifically required by Law or a Governmental Authority in the Territory but shall
promptly inform EUSA of such changes.


 


3.3.2           Maintenance
of Regulatory Standards. Innocoll shall maintain or cause to be maintained all Regulatory Standards that may be necessary
to Manufacture and ship Product, and shall immediately inform EUSA, verbally and in writing, of any adverse change in status of
such Regulatory Standards.


 






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3.3.3           Notification
of Adverse Manufacturing Activities. Innocoll shall promptly advise EUSA of any information arising out of Manufacturing activities
that have adverse regulatory compliance and/or reporting consequences concerning the Product.


 


3.3.4           Adverse
Event Reporting. Each Party agrees to comply with the adverse event reporting procedures set forth in the Pharmacovigilance
Agreement entered into by the Parties dated April 16, 2008.


 


3.3.5           Governmental
Authorities. Innocoll shall provide to EUSA any information reasonably requested by EUSA, and shall consult with EUSA before
providing any information to any Governmental Authority, in connection with Manufacture of Product for sale in the Territory.
Innocoll shall immediately advise EUSA of any requests by any Governmental Authority for inspections of any Manufacturing Facilities.


 








3.3.6           Inspection
of the Manufacturing Facility by Governmental Authorities. In the event a Manufacturing Facility is inspected by a Governmental
Authority of any country in the Territory with respect to the Product, EUSA shall be kept fully informed by Innocoll regarding
such inspection and all correspondence relating thereto. Furthermore, Innocoll shall take EUSA’s comments regarding the
same into good faith consideration. Innocoll shall promptly notify EUSA of any alleged violations or deficiencies relating to
such Manufacturing Facility, and shall promptly disclose to EUSA all relevant portions of any notice of observations or potential
violations, as well as a copy of Innocoll’s response thereto.


 


3.3.7           Review
of Technical Records. EUSA shall have the right (to be exercised no more frequently than once each calendar quarter), subject
to any Third Party confidentiality obligations and prior advance notice to Innocoll of at least ten (10) Business Days, during
normal business hours, to examine those technical records made or kept by Innocoll that relate to the Product Manufactured for
sale in the Territory.


 


3.4           Training
and Experience of Personnel. Innocoll shall ensure and document that each Person engaged in the Manufacture of Product shall
have education, training and experience sufficient to enable such Person or supervisor to perform the assigned functions. Innocoll
shall further ensure and document that each Person responsible for supervising the Manufacture of Product shall have the education,
training and experience necessary to perform assigned functions in such a manner as to provide assurance that Product has the
safety, identity, strength, quality and purity that it is represented to possess.


 


3.5           Materials
Suppliers. Notwithstanding anything to the contrary contained herein, (a) Innocoll shall only obtain materials from such
suppliers named in the relevant Regulatory Approvals and the Specifications, as may be amended from time to time, (b) Innocoll
will perform audits of its material suppliers as required by the relevant Governmental Authorities and (c) Innocoll shall
prepare all certifications as to any materials required by cGMPs or Laws.


 






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3.6           Documentation
for Governmental Authority Requirements. Innocoll shall maintain complete and accurate documentation of all validation data,
stability testing data, Batch records, quality control and laboratory testing, and any other data required under cGMPs, Laws and
other requirements of any relevant Governmental Authority in connection with the performance of any Manufacturing hereunder. Innocoll
shall provide EUSA with access to such documentation at Innocoll’s Manufacturing Facility promptly upon EUSA’s request
(but no later than seven (7) Business Days after such request).








 


3.7           Monitoring
and Recordkeeping; Operating Procedures. Throughout the Term and for so long thereafter as is required by Laws, Innocoll shall
monitor and maintain reasonable records confirming its compliance with cGMPs, including through the establishment and implementation
of such operating procedures as are reasonably necessary to assure such compliance. Innocoll shall notify EUSA in writing of any
significant trend changes in the statistical process control data and/or quality testing results for Batches Manufactured hereunder.


 


3.8           Inspection
and Audit. Innocoll shall permit EUSA, or its designees or agents, to inspect and audit ***: (a) those portions of the Manufacturing
Facility at which any Manufacturing of any Product for sale in the Territory is performed and any portions of the Manufacturing
Facility affecting the sterile nature of such Manufacture; and (b) any of Innocoll’s Manufacturing and quality control records
and other documentation relating to the Manufacturing of any Product for sale in the Territory (including any internal quality
control audits or reviews conducted by Innocoll). Such inspections and audits shall be for the purpose of ascertaining compliance
with Innocoll’s obligations under this Agreement, reviewing correspondence, reports, filings and other documents from or
to Governmental Authorities to the extent related to the Manufacturing, and approving all variances from applicable requirements
hereunder. Any information obtained by EUSA through such inspections and audits shall be treated as Confidential Information of
Innocoll and to the extent that such audit is performed by a designee or agent of EUSA, a condition to performance of such audit
shall be that such designee or agent shall agree with Innocoll to maintain the information as confidential on the terms and conditions
that EUSA has agreed with respect to Innocoll’s Confidential Information. Such audits and inspections shall be conducted
at EUSA’s expense during normal business hours, upon two (2) calendar weeks advance written notice, and in a manner
that does not unreasonably interfere with ongoing operations.


 


ARTICLE
IV

FORECASTING AND ORDERING


 


4.1           General.
  Unless otherwise agreed to by the Parties or unless EUSA assumes responsibility for secondary packaging and labeling of Product,
all forecasts and purchase orders for Product shall be for finished packaged Product.


 




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4.2           Forecasts.  
Each calendar month during the Term, EUSA shall provide Innocoll with a rolling twelve (12) month non-binding, good faith estimate
of the quantities of the Product that EUSA foresees it will order from Innocoll during such 12-month period (each, a “Forecast”)
and updating the previous Forecast. All Forecasts shall be broken down by country, packaging size and quantity of the Product.
Notwithstanding the first sentence of this Section 4.2, *** included in each Forecast shall constitute
a firm purchase order and a binding commitment by EUSA. ***.


 


4.3          Ordering
Under the Forecast.


 


4.3.1        Purchase
Orders.


 


(a)          Delivery
of Purchase Order.   EUSA shall place orders for Product to be delivered for the first three-month period of each Forecast (each,
a “Purchase Order”). Innocoll shall deliver the Product against the Purchase Order in accordance with Article
5. EUSA shall pay for all such Product ordered and delivered by the delivery date specified in a Purchase Order, provided,
that such Product meets the Specifications and the packaging and labeling specifications.


 


(b)          Acceptance
of Purchase Order.   Innocoll shall acknowledge and provide EUSA with a written acceptance of each Purchase Order within two
(2) Business Days following Innocoll’s receipt thereof. Innocoll shall be entitled to reject only that portion of any Purchase
Order (i) which Innocoll will be unable to fill due to the occurrence of a Force Majeure Event; (ii) or which exceeds the amount
in the corresponding Forecast, provided that, Innocoll shall use Commercially Reasonable Efforts to supply any quantity of Product
ordered in the aggregate that exceeds the quantity in the Forecast, considering the availability of inventory.


 


(c)          Terms
of Purchase Orders.   Other than terms respecting quantity, delivery date(s), shipment method and destination(s), the terms
and conditions of any Purchase Order submitted by EUSA, or written acceptance thereof by Innocoll, shall be of no force and effect,
whether or not objected to by Innocoll, and nothing in any such Purchase Order or written acceptance shall supersede the terms
and conditions of this Agreement.


 


4.4           Addressees
for Correspondence.   All Forecasts, Purchase Orders, written acceptances of Purchase Orders and other notices contemplated
under this Article 4 shall be sent to the attention of such persons as each Party may identify to the other in writing from time
to time in accordance with Section 17.1 hereof.


 






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ARTICLE
V

SHIPPING AND DELIVERY


 


5.1           Shipping
and Delivery Dates.   On each Purchase Order submitted by EUSA, EUSA shall specify the requested quantity of the Product, package
size, country in which the Product will be sold, and the required delivery date(s), shipment method and destination(s) of the
Product being ordered. Innocoll shall arrange for the delivery of the Product to EUSA’s (or its agent’s) designated
facilities as stated on the Purchase Order and in a manner consistent with good commercial practices, and in accordance with any
agreed-upon shipping specifications and delivery destinations.


 


5.2           Terms
of Delivery.   Innocoll shall ship the Product to EUSA by a carrier selected by EUSA CIP (Incoterms 2000) EUSA’s designated
facilities, with regard to the Product shipped from Manufacturing Facilities outside Western Europe (title and risk of loss will
pass to EUSA when each order of the Product shipped CIP is received by EUSA). Product shipped from Manufacturing Facilities inside
Western Europe shall be shipped FCA (Incoterms 2000) Innocoll’s Manufacturing Facilities (title and risk of loss will pass
to EUSA when each order of the Product shipped FCA is placed on the carrier selected by EUSA).


 


5.3           Accompanying
Documentation.   With each shipment of Product, Innocoll shall provide EUSA with all appropriate shipping documentation, including
bills of lading, and with such certificates of analysis and other appropriate documentation identifying the applicable Batch numbers,
confirming that the Product has been QP released and indicating conformance of the shipment with the Specifications, and all Regulatory
Standards and, at EUSA’s request, Innocoll shall provide EUSA with reasonable access to any applicable supporting data.


 


5.4           Retention
of Samples.   Innocoll shall properly store and retain appropriate samples (identified by Batch number) of Products that it
supplies to EUSA in conditions and for times consistent with all applicable Regulatory Standards and to permit appropriate or
required internal and regulatory checks and references (collectively, the “Shipment Samples”), but in no event
shall such period be less than required under applicable Laws, including, but not limited to, cGMP. Innocoll shall provide EUSA
with reasonable access to and portions of the Shipment Samples for testing and other purposes upon EUSA’s request and shall
not destroy or otherwise dispose of such samples without first offering to transfer such samples to EUSA at EUSA’s reasonable
expense.


 






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ARTICLE
VI

INSPECTION AND DEFECTIVE PRODUCTS;

PRODUCT RECALL; REGULATORY MATTERS


 


6.1          Inspection
by EUSA.


 


6.1.1           Inspection
of Product.   Within thirty (30) days following its receipt of a shipment of Product, EUSA shall perform or have performed the
quality control and assurance procedures set forth in Schedule 6.1.1 to determine if such Product conforms to the Specifications.
EUSA shall promptly notify Innocoll of any damages, shortage and other defects discovered by EUSA following EUSA’s discovery
thereof.


 


6.1.2           Acceptance
of Product.   If notice is not given by EUSA pursuant to Section 6.1.1 within the time period set forth therein, then the shipment
shall be deemed accepted by EUSA for purposes of this Article 6 and, except as provided in Section 6.2, may not be rejected pursuant
to Section 6.3 or Section 6.4.


 


6.2          Defective
Products.   If a shipment of Product or any part of such shipment fails, at the time of delivery, to comply with the Specifications,
and EUSA notifies Innocoll of such nonconformity within thirty (30) days following EUSA’s receipt of such shipment (or with
respect to Latent Defects, within thirty (30) days following discovery of any such Latent Defect), then Innocoll will at EUSA’s
option (a) replace in a timely manner, at no additional expense to EUSA, all quantities of nonconforming Product as soon as reasonably
practicable after receipt of notification of nonconformity or (b) provide EUSA with a refund or credit in an amount equal to the
price EUSA has paid to Innocoll for such Product. Such replacement shall not affect any other remedies available to EUSA under
this Agreement.


 


6.2.1           Testing
of Shipment Samples.   The Parties shall work in good faith to resolve any concerns about nonconformance without the assistance
of Third Parties. In the event that they are unable to do so after a good faith effort, then samples of the allegedly non-conforming
Product shall be tested, using the Shipment Samples, for conformance with the applicable Specifications and acceptance criteria
by an independent testing organization mutually acceptable to both Parties, which analysis shall be binding on Innocoll and EUSA
solely for the purpose of determining whether such Product may be rightfully rejected as non-conforming, damaged or otherwise
defective. The fees and expenses charged by such independent testing organization shall be paid by the Party found to be in error.


 


6.2.2           Disposal
of Rejected Product.   All or part of any shipment of Product determined to have been rightfully rejected by EUSA shall be held
by EUSA for a period of thirty (30) days following notice to Innocoll for proper disposal by Innocoll, at Innocoll’s
expense. If Innocoll does not provide instructions for disposal of Product within such period,


 






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then EUSA may dispose of such Product
and Innocoll shall either pay, or reimburse EUSA for, all costs and expenses incurred by EUSA in connection with the disposal
of such Product.


 


6.3          Recalls
and Withdrawals.


 


6.3.1        Notification
and Determination.   In the event that any Governmental Authority threatens or initiates any action to remove the Product from
the market (in whole or in part), the Party receiving notice thereof shall notify the other Party of such communication immediately,
but in no event later than one (1) Business Day, after receipt thereof. In all cases, EUSA shall determine whether to initiate
any recall or withdrawal of the Product in the Territory, including the scope of such recall or withdrawal (e.g., a full or partial
recall, or a temporary or permanent recall); provided, however, that before EUSA initiates a recall or withdrawal, the Parties
shall promptly meet and discuss in good faith the reasons therefor, provided further that such discussions shall not delay any
action that EUSA reasonably believes has to be taken in relation to any recall or withdrawal. In the event of any such recall
or withdrawal, EUSA shall implement any necessary action, with assistance from Innocoll as requested by EUSA, to conduct such
recall or withdrawal.


 


6.3.2        Cost
Allocation.   All direct costs and expenses associated with implementing a recall or withdrawal of the Product in the Territory
shall be allocated between Innocoll and EUSA as follows:


 








(a)          in
the event, and to the extent, that the recall or withdrawal arises as a result of a material breach of this Agreement by a Party,
then the breaching Party shall bear the costs and expenses for implementing the recall or market withdrawal; and


 


(b)          in
the event, and to the extent, that the recall or withdrawal arises out of any event other than those set forth in Section 6.3.2(a),
such costs and expenses shall be borne by EUSA.


 


6.4           Filing
& Maintenance of Regulatory Approvals.   EUSA shall maintain such Regulatory Approvals in the Territory as it determines
in its sole discretion is commercially reasonable to do so.


 


6.5           Assistance.  
Each Party agrees to provide the other Party with all reasonable assistance in a timely manner and take all actions reasonably
requested by the other Party that are necessary or desirable to enable the other Party to file and/or maintain Regulatory Approvals
for the Product in the Territory and to comply with any Law applicable to the Product, including, but not limited to, meeting,
reporting and other obligations to maintain and update any Regulatory Approvals for the Product.


 






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6.6           Manufacturing.  
Notwithstanding any provisions of this Agreement to the contrary, Innocoll (or its designee) shall own and be responsible for
all DMFs, regulatory filings, and any Regulatory Approvals related to the Manufacture of the Product in the Territory in accordance
with the terms of this Agreement, except that EUSA shall own and retain all rights to the C-Implant CE Marks (as defined in the
Asset Purchase Agreement).


 


6.7           Notice.  
Each Party shall promptly inform the other Party of any notification of any action by, or notification or other information which
it receives from, any Governmental Authority (together with copies of correspondence related thereto), which (a) raises any
material concerns regarding the safety or efficacy of the Product, (b) indicates or suggests a potential material liability
for either Party to Third Parties arising in connection with the Product or (c) indicates a reasonable potential for a recall
or market withdrawal of the Product.


 


ARTICLE
VII

FAILURE TO SUPPLY


 


7.1           Shortages.  
In the event that Innocoll is aware or anticipates that it will be unable to supply the Product pursuant to any Purchase Order,
either in whole or in part, for whatever reason, Innocoll shall promptly inform EUSA in writing of such inability. In particular,
Innocoll shall promptly inform EUSA of any notice, written or oral, received from any materials supplier regarding a likely shortage
or inability to supply.


 


7.2           Manufacturing
by EUSA During Shortage.   Notwithstanding anything herein to the contrary, upon Innocoll’s failure to supply EUSA with
*** of Product in terms of (a) quantity of such Product required to be filled or (b) in compliance with the Specifications,
in either case for a period of *** consecutive months (each an “Imminent Failure”), Innocoll shall (i) promptly
notify EUSA, (ii) identify a Third Party to Manufacture and supply the Product to EUSA and (iii) undertake the audits and other
steps required to prepare such Third Party to obtain Regulatory Approval in the event of a Failure (as defined below). If, following
an Imminent Failure, for a further *** consecutive month period, Innocoll fails to supply EUSA with *** of Product for such period
in terms of (a) quantity of such Product required to be filled or (b) in compliance with the Specifications (each, a “Failure”).
Innocoll shall, within *** months of a Failure ***, enter into an agreement with such Third Party which shall provide that such
Third Party use commercially reasonable efforts to Manufacture and supply Product to EUSA (“Third Party Agreement”).
Additionally, upon a Failure, (i) the Parties will cooperate to obtain the required Regulatory Approvals for the use of the identified
Third Party’s facilities to Manufacture and supply Product; and (ii) EUSA and Innocoll, as applicable, will notify the other
Party in writing promptly after any such Regulatory Approval is obtained by it (“Manufacture Approval Activities”).
The Parties agree, in relation to costs associated with the addition of the Third Party’s facilities to the Manufacturing
Facilities, such costs shall be the sole responsibility of Innocoll. If following a


 


 



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Failure Innocoll does not
enter into a Third Party Agreement within the Agreement Period, then unless prohibited by Law, EUSA shall *** and, in order to facilitate same, Innocoll
and Syntacoll shall *** and, upon request, immediately ***. If Innocoll does enter into a Third Party Agreement within the Agreement Period, and, thereafter, such
Third Party commences the supply of Product to EUSA then, provided that Innocoll is using its best efforts to correct the cause
of the Failure (and resume the Manufacture and supply of Product), the Third Party may continue to supply Product to EUSA or, if
it is able, Innocoll may elect to supply Product to EUSA until such time as a subsequent Failure shall have occurred, at which
time EUSA shall be entitled to a Transfer of Manufacture of Product.


 


7.3           Costs
Incurred as a Result of Innocoll’s Failure to Supply.   To the extent EUSA incurs any reasonable additional costs or expenses
as a result of a Failure by Innocoll to supply hereunder or EUSA’s pursuit of its rights under Sections 7.1 or 7.2, Innocoll
shall promptly reimburse EUSA for such additional costs and expenses upon written invoice therefor with reasonable supporting
documentation.


 


7.4           Reservation
of Rights.   Nothing contained in this Article 7 shall limit any legal, equitable or other rights or remedies that may be available
to EUSA on account of any failure of Innocoll to supply Product hereunder.


 


ARTICLE
VIII

FINANCIAL PROVISIONS


 


8.1           Supply
Price.    Innocoll shall supply the Product to EUSA for the Territory beginning from January 1, 2010 in accordance with the pricing
set forth in the following table (“Supply Price”):


 


***


 


The amount payable by EUSA
to Innocoll for the Product at the time of purchase shall be the Supply Price.


 




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(a)          ***


 


(b)          There
shall not be any application of the minimum unit price due based on an average tender price, with respect to payments due to Innocoll
for Product sold in Mexico. Any such calculations shall be exclusively between EUSA and its Permitted Sublicensees and distributors,
and shall not involve or affect Innocoll.


 


8.2           Setting
the Supply Price.   The Supply Price for the Product shall be reviewed by the Parties annually, beginning at the end of Calendar
Year 2012, to be effective as of the first (1st) day of the Calendar Year 2013. Any increase or decrease to the Supply
Price shall be based on the annual increase or decrease in the rate of inflation during the preceding twelve (12) month
period ending on the last day of the fourth (4th) Calendar Quarter of the Calendar Year 2012 and on such day of each
Calendar Year thereafter during the Term, as determined by reference to the German Consumer Price Index (Verbraucherpreisindex).


 


8.3           Supply Price ***.   Innocoll
shall not supply to a Third Party any C-Topical product that is *** as any C-Implant product being supplied to EUSA in the Territory ***.


 


8.4           Manner
of Payments.   All sums due to either Party under this Agreement shall be payable in Euros by bank wire transfer in immediately
available funds to such bank account(s) as each of Innocoll and EUSA shall from time to time designate, unless otherwise agreed
by the Parties in writing.


 


8.5           Invoices;
Timing of Payments; Interest.   Innocoll shall invoice EUSA for all Product supplied hereunder on the date of shipment, and
for all other amounts due to Innocoll hereunder, if any, monthly in arrears. Each invoice shall specify the Purchase Order number
to which it corresponds. Unless otherwise specified in this Agreement, all amounts due to Innocoll hereunder shall be paid by
EUSA within thirty (30) days following the date of receipt of the invoice. Any amounts that are overdue and payable
under this Agreement (other than amounts disputed in good faith) shall bear interest at a rate of *** from the due date until
the date of payment.


 


8.6           Tax
Withholding.   Any taxes, levies or other duties (“Taxes”) paid or required to be withheld under the appropriate
tax Laws by one Party (“Withholding Party”) on account of monies payable to the other Party under this Agreement
shall be deducted from the amount of monies otherwise payable to the other Party under this Agreement. The Withholding Party shall


 




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secure and send to the other
Party within a reasonable period of time proof of any such Taxes paid or required to be withheld by the Withholding Party for the
benefit of the other Party. The Parties shall cooperate reasonably with each other to ensure that any amounts required to be withheld
by either Party are reduced in amount to the fullest extent permitted by Laws. No deduction shall be made, or a reduced amount
shall be deducted, if the other Party furnishes a document from the appropriate tax Governmental Authorities to the Withholding
Party certifying that the payments are exempt from Taxes or subject to reduced tax rates, according to the applicable convention
for the avoidance of double taxation.


 


8.7           Outstanding
Invoices.   Innocoll hereby agrees to waive all outstanding invoices for the Calendar Years 2007 through 2009 (including the
fourth (4th) Calendar Quarter of 2009 which is due to be issued), and EUSA agrees to waive the Inventory
Adjustment as set forth in Section 2.1 of the Settlement Agreement and Release dated December 2, 2007 between the Parties. Innocoll
hereby agrees to pay EUSA the sum of *** within thirty (30) days after the Restated MSA Effective Date, representing
the overpayment made by EUSA based on the Quarterly Minimums for the 2009 Calendar Year. In addition, Innocoll hereby grants to
EUSA a credit in the amount of ***, which credit may be applied by EUSA against any amounts otherwise payable to Innocoll hereunder,
with the selection of such outstanding invoices and method of application of such credit to be determined by Innocoll at its sole
discretion (but to the extent there are outstanding invoices payable by EUSA to Innocoll during a Calendar Quarter specified below,
Innocoll must apply the entire amount of the credit available to be applied by EUSA during such Calendar Quarter against such
invoices), according to the following schedule:


 


	 Calendar
        Quarter
	 	Amount of Credit
	3Q2010	 	***
	4Q2010	 	***
	1Q2011	 	***
	2Q2011	 	***
	3Q2011	 	***
	4Q2011	 	***


***


 


8.8          Sales
Share.


 


8.8.1       Territory
Excluding Japan.





 


(a)          In
addition to the Supply Price, as additional purchase price for the supply of Product EUSA shall pay to Innocoll, with respect
to sales of the Product for each Calendar Quarter in each country in the Territory, other than ***, individually calculated,
*** of aggregate Net


 




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Sales of the Product in such
country for such Calendar Quarter, less the Supply Price times the number of units of the Product sold in such country during such
Calendar Quarter (“Share of Territory (Ex Specific Countries) Net Sales”); provided that ***. As a first
example, if *** of the Net Sales of the 5x5 Product in country A equals *** for Q1 and the Supply Price *** times the number of
units sold *** equals ***, then the amount payable for this component of the Share of Territory (Ex Specific Countries) Net Sales
would be ***. As a second example, if *** of the Net Sales of the 5x5 Product in country A equals *** for Q1 and the Supply Price
*** times the number of units sold *** equals ***, then the amount payable for this component of the Share of Territory (Ex Specific
Countries) Net Sales would be ***.


 


(b)          In
addition to the Supply Price, as additional purchase price for the supply of Product EUSA shall pay to Innocoll, with respect to
sales of the Product for each Calendar Quarter in ***, individually calculated,
*** of aggregate Net Sales of the Product in such country for such Calendar Quarter, less the Supply Price times the number of
units of the Product sold in such country during such Calendar Quarter (“Share of Specific Countries Net Sales”); provided
that if such amount calculated for one of these countries is negative, the following shall apply in comparison to the calculation
of *** of aggregate Net Sales of the Product in such country during such Calendar Quarter, less the Floor Price times the number
of units of the Product sold in such country during such Calendar Quarter (“Share of Floor Price”) and the difference
between the Supply Price and the Floor Price multiplied by the number of units of the Product sold in such country during such
Calendar Quarter (“Supply and Floor Price Difference”):


 


(i)          If
the Share of Floor Price is positive, then EUSA shall recover against amounts owed to Innocoll under Sections 8.8.1(a) and (b)
in such Calendar Quarter an amount equal to the difference between the Supply and Floor Price Difference and the Share of Floor
Price; and


 


(ii)         If
the Share of Floor Price is negative, the EUSA shall recover against amounts owed to Innocoll under Sections 8.8.1(a) and (b) in
such Calendar Quarter an amount equal to the Supply and Floor Price Difference.


 


As a first example, if ***
of the Net Sales of the 5x5 Product in country A equals *** for Q1 and the Supply Price *** times the number of units sold ***
equals ***, then this component of the Share of Specific Countries Net Sales would be *** and EUSA would owe that amount to Innocoll.
As a second example, if *** of the Net Sales of the 5x5 Product in country A equals *** for Q1 and the Supply Price *** times the
number of units sold *** equals ***,


 




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then this component of the
Share of Specific Countries Net Sales would be *** and a further calculation would be required. If the Floor Price was ***, then
the Share of Floor Price would be calculated as *** and the Supply and Floor Price Difference would be calculated as ***. As the
Share of Floor Price is positive, EUSA would be able to recover *** against amounts owed under Sections 8.8.1(a) and (b). As a
third example, if *** of the Net Sales of the 5x5 Product in country A equals *** for Q1 and the Supply Price *** times the number
of units sold *** equals ***, then this component of the Share of Specific Countries Net Sales would be *** and a further calculation
would be required. If the Floor Price was ***, then the Share of Floor Price would be calculated as ***. As the Share of Floor
Price is negative, EUSA would be able to recover the Supply and Floor Price Difference of *** against amounts owed under Sections
8.8.1(a) and (b).


 


8.8.2           Japan.  
In addition to the Supply Price, as additional purchase price for the supply of the Product EUSA shall pay to Innocoll, with respect
to sales of the Product in Japan for each Calendar Quarter, *** of (a) aggregate Net Sales of the Product for each Calendar Quarter
in Japan, less the Supply Price times the number of units of the Products sold in Japan during such Calendar Quarter, plus (b)
any licensing fees and milestone payments (and other payments having substantially the same economic effect, but excluding any
payments to the extent the same shall be payment or reimbursement of actual or planned, and documented future product development
costs, as set forth in any applicable Third Party Agreement or the C-Topical product development plan approved by the Third Party
and EUSA pursuant thereto) received by EUSA from Third Parties during such Calendar Year for the right to market and sell the
Product in Japan (“Share of Japanese Net Revenue”); provided that if such amount is negative, then no
additional amount shall payable to Innocoll for sale of the Product in Japan for such Calendar Quarter. As a first example, if
*** of the Net Sales of the 5x5 Product in Japan equals *** for Q1 and the Supply Price *** times the number of units sold ***
equals ***, and there are no licensing fees or milestone payments received by EUSA in Q1, then the amount payable for the Share
of Japanese Net Revenue would be ***. As a second example, if *** of the Net Sales of the 5x5 Product in Japan equals *** for
Q1 and the Supply Price *** times the number of units sold *** equals ***, and there are no licensing fees or milestone payments
received by EUSA in Q1, then the amount payable would be ***.


 


8.8.3           Quarterly
Minimums.   EUSA shall be obligated to purchase Product during each Calendar Quarter equal to the Quarterly Minimums applicable
to such Calendar Quarter. If purchases of Product in any Calendar Quarter are less than the applicable Quarterly Minimum, EUSA,
at its option, may either (i) purchase additional amounts of Product during the ten (10) Business Day period after the end of
such Calendar Quarter to satisfy the Quarterly Minimum or (ii) pay Innocoll an amount equal to the Quarterly Minimum less the
dollar amount of Product purchased by EUSA during such Calendar Quarter. To the extent that option (ii) is chosen by EUSA,
the reconciliation at the end of the corresponding Calendar Year shall include


 




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a credit issued to EUSA toward
future purchases of Product from Innocoll. To the extent that option (i) is chosen by EUSA, the reconciliation at the end of such
Calendar Year shall not include any credit issued to EUSA. Except as provided in option (i) above, for Product to qualify for inclusion
in the Quarterly Minimums, such Product must be included in a Purchase Order pursuant to which the ship date requested by EUSA
falls within the corresponding Calendar Quarter and EUSA makes full payment for such Purchase Order within the time period set
forth in Section 8.5. Notwithstanding the foregoing, in the event that Innocoll fails to supply quantities of Product scheduled
for sale for a Calendar Quarter in accordance with binding Purchase Orders and the amount supplied by Innocoll is less than the
Quarterly Minimums for such Calendar Quarter, then for such Calendar Quarter the Quarterly Minimums will be reduced to the amount
actually supplied by Innocoll in such Calendar Quarter.


 


8.9           Reports.  
Within thirty (30) Business Days following the end of each Calendar Quarter, EUSA shall provide Innocoll for such Calendar Quarter
a report setting forth, on a country-by-country basis, the Net Sales with respect to the Product, the currency conversion rate
used and the Euro-equivalent of such Net Sales, and a calculation of the amount due on such Net Sales in accordance with Section
8.8 (“Sales Reports”). Payments due pursuant to Section 8.8 are due and payable within thirty (30) days
following the date of the Sales Report during the Term for which there were Net Sales of Product in the Territory. Each Sales
Report will be considered Confidential Information of EUSA subject to the obligations of Article 10 of this Agreement.


 


8.10         Payment
Term.   Payments due under Section 8.8 will commence upon the first commercial sale of the Product in a particular country in
the Territory and will continue on a country-by-country basis for a period of *** thereafter.


 


8.11         Financial
Audit.   Each Party will have the right to have an independent certified public accounting firm (i.e., other than such Party’s
own auditors during the prior *** period) of internationally recognized standing, reasonably acceptable to the other Party, access
during normal business hours, and upon reasonable prior written notice, such of the records of the other Party as may be reasonably
necessary to verify the accuracy of any expenses shared or paid by the other Party under this Agreement or the calculation of
Net Sales or sums paid under Section 8.2 of this Agreement for any Calendar Year ending not more than three (3) years prior to
the date of such request; provided, however, that the auditing Party shall not be permitted to audit the same period
of time more than once, unless evidence of fraud or gross negligence arises in a subsequent audit and the auditing Party reasonably
believes that such evidence indicates the reasonable possibility of fraud or gross negligence in any such prior period. The accounting
firm will disclose to the Parties only whether the various expenses subject to being shared by this Agreement and Net Sales reported
and the corresponding royalty due by the audited Party and/or sums paid under Section 8.8 or any other provision of this Agreement
are correct or incorrect. The auditing Party will bear all costs of such audit, unless the audit reveals a discrepancy in the


 






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auditing Party’s favor of more than the greater of (a) five percent (5%) or (b) $100,000, in which case the audited
Party will bear the cost of the audit. The result of the audit shall, in the absence of manifest error, be final and binding on
the Parties. EUSA shall obtain from any Permitted Sublicensee or subcontractor, as applicable, audit rights at least as favorable
as the audit rights set forth in this Section 8.11 and the right to share the results of any such audit with Innocoll. In the
event that Innocoll reasonably believes that there is a material inaccuracy in the reporting by such a sublicensee or subcontractor,
as applicable, of the Net Sales of such sublicensee or subcontractor, then Innocoll may direct EUSA to exercise such audit rights
in accordance with procedures reasonably requested by Innocoll. If, based on the results of any audit, additional payments are
owed to either Party under this Agreement, then the paying Party will make such additional payments within thirty (30) Business
Days (provided that the paying Party has received an invoice in respect of the same) after the accounting firm’s written
report is delivered to the Parties.


 


ARTICLE
IX

GRANT OF RIGHTS; COMMERCIALIZATION


 


9.1          Licenses
to EUSA and Innocoll.


 


9.1.1           EUSA
owns and retains all rights to the Development Data with respect to the Product in the Territory (the “EUSA Development
Data”) and Innocoll owns and retains all rights to the Development Data with respect to the Product outside of the Territory
(the “Innocoll Development Data”). Innocoll hereby grants to EUSA the exclusive, irrevocable paid up license
and right to use the Innocoll Development Data or any portion thereof for the sole purpose of Developing and Commercializing the
Product and receiving Regulatory Approvals in the Territory, and EUSA shall have the right to grant sublicenses on the same terms
and subject to the same restrictions as Section 9.2, and Innocoll shall have the exclusive, irrevocable paid up license and right
to use the EUSA Development Data or any portion thereof for the sole purpose of Developing and Commercializing the Product and
receiving Regulatory Approvals outside the Territory (each, a “Data License”). For purposes of clarity, EUSA
shall not use such Development Data for receiving any Regulatory Approvals outside the Territory and Innocoll shall not use such
Development Data for receiving any Regulatory Approvals inside the Territory. All Development Data owned by a Party shall be the
Confidential Information of such Party.





 


9.1.2           Innocoll
hereby grants to EUSA a limited, non-exclusive, non-transferable and non-sublicensable, irrevocable (during the period described
in Section 8.10 with respect to each country in the Territory, determined on a country-by-country basis) paid up sublicense to
use the Non-Current Intellectual Property for the purpose of Commercializing the Product in the Territory.


 






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9.2          Third
Party Agreements.   EUSA shall be permitted to sublicense the licenses granted hereunder to and otherwise enter into any and
all agreements with any Third Parties with respect to Commercializing the Product in any of the countries within the Territory;
provided, that if and to the extent any such sublicense is with respect to the sale of the Product in a country in Western
Europe, EUSA shall be required to obtain the approval of Innocoll, such approval not to be unreasonably withheld or delayed (each,
a “Permitted Sublicensee”). Innocoll hereby consents to and approves all sublicenses and distributor agreements
of EUSA with all Third Parties with respect to the Product in the Territory, including in Western Europe, in effect as the Restated
MSA Effective Date.


 


9.3          No
Implied Licenses.   Except as expressly provided in this Agreement, neither Party grants to the other Party any right or license
in any intellectual property right, whether by implication, estoppel, course of conduct or otherwise. No implied licenses or other
rights are granted under this Agreement.


 


9.4          Liability
for Affiliates and Third Parties.   The Parties recognize that each may perform some or all of its obligations under this Agreement
through Affiliates and/or Third Parties; provided, however, that each Party shall remain responsible for the performance
by its Affiliates and such Third Parties and shall cause its Affiliates and such Third Parties to comply with the provisions of
this Agreement in connection with such performance. Each Party hereby expressly waives any requirement that the other Party exhaust
any right, power or remedy, or proceed against an Affiliate or any Third Party, for any obligation or performance hereunder prior
to proceeding directly against such Party. Wherever in this Agreement the Parties delegate responsibility to Affiliates or Third
Parties, the Parties agree that such entities may not make decisions inconsistent with this Agreement, amend the terms of this
Agreement or act contrary to its terms in any way.


 


9.5          Restrictions
on Off-Label Promotion.





 


9.5.1           Innocoll,
its licensees, distributors and/or other Third Parties that sell or supply the C-Topical products in the Territory shall not promote
the use of the C-Topical products in the Territory for Implantation or in any way that competes with the Product. Innocoll shall
take appropriate and reasonable action with respect to each of such Third Parties in an effort to ensure that there is no off-label
use being promoted in the Territory for Implantation of the C-Topical products. Upon notification by EUSA that Innocoll or any
of such Third Parties is promoting off-label use of the C-Topical products or that such C-Topical products are being used off label,
Innocoll shall take prompt and reasonable action in a good faith effort to discontinue, prevent and preclude any and all of such
off-label related activities. To the extent that Innocoll and/or any such Third Party promotes the off-label use of the C-Topical
products in the Territory for Implantation, Innocoll shall be subject to damages attributable to such off-label use. Such damages
shall be not less than the lost profits that EUSA could have made on sales of


 






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the Product that were displaced by the sale of the
C-Topical products by Innocoll and/or such Third Parties for off-label use. A determination as to whether Innocoll and/or any such
Third Party was promoting the off-label use of the C-Topical products and the amount of any such damages shall be determined by
a single mediator jointly appointed by the Parties having at least fifteen (15) years of experience in the drug commercialization
field and such other qualifications as may be agreed to in writing by the Parties.


 


9.5.2           EUSA,
its Permitted Sublicensees, distributors and/or other Third Parties that sell or supply the Product in the Territory as a result
of an arrangement with EUSA shall not promote the use of the Product in the Territory for non-implantation. EUSA shall take appropriate
and reasonable action with respect to each of such Third Parties in an effort to ensure that there is no off-label use being promoted
in the Territory for non-implantation of the Product. Upon notification by Innocoll that EUSA or any of such Third Parties is promoting
off-label use of the Product for non-implantation or that the Product is being used off label, EUSA shall take prompt and reasonable
action in a good faith effort to discontinue, prevent and preclude any and all of such off-label related activities. To the extent
that EUSA and/or any such Third Party promotes the off-label use of the Product in the Territory for non-implantation, EUSA shall
be subject to damages attributable to such off-label use. Such damages shall be not less than the lost profits that Innocoll could
have made on sales of the C-Topical products that were displaced by the sale of the Product by EUSA and/or such Third Parties for
off-label use. A determination as to whether EUSA and/or any such Third Party was promoting the off-label use of the Product and
the amount of any such damages shall be determined by a single mediator jointly appointed by the Parties having at least fifteen
(15) years of experience in the drug commercialization field, and such other qualifications as may be agreed to in writing by the
Parties.


 


9.5.3           The
Parties agree that the restrictions set forth in this Section 9.5 shall not apply to EUSA with regards to the marketing or sale
of the Product by BurnsAdler or the use of the Product in Latin and Central America, Innocoll having granted BurnsAdler the rights
to promote, market, distribute and sell both the Product and the C-Topical products in Latin and Central America pursuant to the
terms of the BurnsAdler Agreement.


 


9.6          Promotional
Materials.


 


9.6.1           Creation
of Promotional Materials.   EUSA is responsible for the creation and development of promotional materials for the Territory
in accordance with the Regulatory Approvals and applicable Law.


 


9.7          EUSA
Ownership of Promotional Materials.   EUSA shall own all right, title and interest in and to any promotional materials relating
to the Product to Commercialize within the Territory, including, without limitation, applicable copyrights and trademarks used
or registered with respect to the Product, but excluding trademarks owned by Innocoll and the Non-Current Intellectual Property.


 






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9.8           Compliance
with Laws.   Each Party and its Affiliates shall exercise its rights and perform its responsibilities under Sections 9.6 and
9.7 in accordance with all applicable Laws.


 


ARTICLE
X

CONFIDENTIALITY


 


10.1         Confidential
Information.   As used in this Agreement, the term “Confidential Information” means all secret, confidential
or proprietary information or data, whether provided in written, oral, graphic, video, computer, electronic or other form, provided
pursuant to this Agreement by one (1) Party (the “Disclosing Party”) to the other Party (the “Receiving
Party”), including but not limited to, information relating to the Disclosing Party’s existing or proposed research,
development efforts, patent applications, business or products, and any other materials that have not been made available by the
Disclosing Party to the general public. Notwithstanding the foregoing sentence, Confidential Information shall not include any
information or materials that:


 


(a)          were
already known to the Receiving Party (other than under an obligation of confidentiality), at the time of disclosure by the Disclosing
Party, to the extent such Receiving Party has documentary evidence to that effect;


 


(b)          were
generally available to the public or otherwise part of the public domain at the time of disclosure thereof to the Receiving Party;





 


(c)          became
generally available to the public or otherwise part of the public domain after disclosure or development thereof, as the case may
be, and other than through any act or omission of a Party in breach of such Party’s confidentiality obligations under this
Agreement;


 


(d)          were
disclosed to a Party, other than under an obligation of confidentiality, by a Third Party who had no obligation to the Disclosing
Party not to disclose such information to others; or


 


(e)          were
independently discovered or developed by or on behalf of the Receiving Party without the use of the Confidential Information belonging
to the other Party, to the extent such Receiving Party has documentary evidence to that effect.


 


10.2         Confidentiality
Obligations.   Each of Innocoll and EUSA shall keep all Confidential Information received from the other Party with the same
degree of care it maintains the confidentiality of its own Confidential Information, but in no event less than a reasonable degree
of care. Neither Party shall use such Confidential Information for any purpose other than in performance of this Agreement or
disclose the same to any other Person other than to such of its and its Affiliates’ or permitted sub-licensees, directors,
officers, managers, employees,


 






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independent contractors, agents or consultants who have a need to know such Confidential Information
to implement the terms of this Agreement or enforce its rights under this Agreement; provided, however, that prior to a Receiving
Party disclosing Confidential Information to its Affiliates or other Third Parties as permitted hereunder, a Receiving Party shall
advise any of its and its Affiliates’ or permitted sublicensees’ directors, officers, managers, employees, independent
contractors, agents or consultants who receives such Confidential Information of the confidential nature thereof and of the obligations
contained in this Agreement relating thereto, and the Receiving Party shall ensure (including, in the case of a Third Party, by
means of a written agreement with such Third Party having terms at least as protective as those contained in this Article 10)
that all such directors, officers, managers, employees, independent contractors, agents or consultants comply with such obligations
as if they had been a Party hereto. Upon termination of this Agreement, the Receiving Party shall return or destroy all documents,
tapes or other media containing or embodying Confidential Information of the Disclosing Party that remain in the possession of
the Receiving Party or its directors, managers, employees, independent contractors, agents or consultants, except that the Receiving
Party may keep one (1) copy of the Confidential Information in the legal department files of the Receiving Party, solely
for archival purposes (and will cause its Affiliates and other Third Parties to which it disclosed Confidential Information to
do the same). Such archival copy shall be deemed to be the property of the Disclosing Party, and shall continue to be subject
to the provisions of this Article 10. It is understood that receipt of Confidential Information under this Agreement will not
limit the Receiving Party from assigning its employees to any particular job or task in any way it may choose, subject to the
terms and conditions of this Agreement.


 


10.3         Permitted
Disclosure and Use.   Notwithstanding Section 10.2, a Party may disclose Confidential Information belonging to the other Party
to the extent such disclosure is reasonably necessary to: (a) obtain Regulatory Approval of the Product to the extent such disclosure
is made to a Regulatory Authority; (b) comply with or enforce any of the provisions of this Agreement; or (c) comply with applicable
Laws. If a Party deems it necessary to disclose Confidential Information of the other Party pursuant to this Section 10.3, such
Party shall, if reasonably possible (it being understood and agreed that it will always be reasonably possible to provide such
notice in connection with any disclosure to be made initially to obtain Regulatory Approval, but not necessarily throughout the
Regulatory Approval process), give reasonable advance notice of such disclosure to the other Party to permit such other Party
sufficient opportunity to object to such disclosure or to take measures to ensure confidential treatment of such information.
In addition, notwithstanding Section 10.2, the Parties shall prepare standardized responses to anticipated inquiries from the
public or press, stockholders, investors and/or analysts with respect to the Product or other activities hereunder that may be
disclosed.


 


10.4         Notification.
  The Receiving Party shall notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of the Disclosing
Party’s Confidential Information, and will cooperate with the Disclosing Party in any reasonably requested fashion to


 






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assist
the Disclosing Party to regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure.


 


10.5        Filing
of this Agreement.   If and to the extent that either Party determines that it or the other Party is required to file or register
this Agreement or a notification thereof to comply with the requirements of an applicable stock exchange or NASDAQ regulation
or any Governmental Authority, including without limitation the U.S. Securities and Exchange Commission, the Competition Directorate
of the Commission of the European Communities or the U.S. Federal Trade Commission, such Party shall promptly inform the other
Party thereof. Prior to making any such filing, registration or notification, the Parties shall agree on the provisions of this
Agreement for which the Parties shall seek confidential treatment, it being understood that if one (1) Party determines to seek
confidential treatment for a provision for which the other Party does not, then the Parties will use Commercially Reasonable Efforts
in connection with such filing to seek the confidential treatment of any such provision. The Parties shall cooperate, each at
its own expense, in such filing, registration or notification, including, without limitation, such confidential treatment request,
and shall execute all documents reasonably required in connection therewith.


 


10.6        Use
of Names.   Neither Party shall use the name of the other Party in relation to this transaction in any public announcement,
press release or other public document without the prior written consent of such other Party, which consent shall not be unreasonably
withheld; provided, however, that either Party may use the name of the other Party in any document filed with any regulatory agency
or authority, including the FDA, EMEA and the U.S. Securities and Exchange Commission.


 


10.7        Confidentiality
of this Agreement.   The terms of this Agreement shall be Confidential Information of each Party and, as such, shall be subject
to the provisions of this Article 10.


 


10.8        Disclosures
Under Existing NDA.   The Parties agree and acknowledge that Innocoll and EUSA entered into that certain Non-Disclosure Agreement
dated May 22, 2007 (“Existing NDA”). The Parties agree that “Confidential Information”
(as such term is used in the Existing NDA) disclosed to the Parties or their Affiliates under the Existing NDA prior to the Effective
Date shall be deemed to have been disclosed under this Agreement and, from and after the Original MSA Effective Date, shall be
held in confidence by such the Parties and their Affiliates in accordance with the terms of this Article 10.


 


10.9        Ownership;
Developments.


 


10.9.1           Ownership.  
All intellectual property of EUSA shall be and remain the sole and exclusive property of EUSA, subject to the licenses and rights
granted hereunder. All


 






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intellectual property of Innocoll shall be and remain the sole and exclusive property of Innocoll, subject
to the licenses and rights granted hereunder.


 


10.9.2           Developments.
  Any and all intellectual property developed solely by a Party during the Term, whether by or for itself or any of its Affiliates
shall be the sole and exclusive property of such Party, subject to the licenses and rights granted hereunder.


 


10.9.3           Joint
Developments.   Any and all intellectual property developed jointly by the Parties (including by Affiliates of the Parties)
during the Term, shall be the joint property of each Party and each Party shall have joint and undivided interest in such intellectual
property, subject to the licenses granted hereunder.


 


ARTICLE
XI

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


11.1        Representations
and Warranties of Innocoll for Product.   Innocoll represents, warrants and covenants to EUSA that:


 


11.1.1           Unless
EUSA has agreed in writing to accept Product with a shorter shelf life, all Product shipped to EUSA shall have the shelf life established
for such Product by the applicable Governmental Authority and in no event shall the shelf life for such Product be, from the date
of dispatch from Innocoll’s Manufacturing Facility, less than *** of the longest shelf life provided for in the Marketing
Authorization for the relevant country in the Territory.


 


11.1.2           All
Product supplied shall be in accordance with EUSA’s labeling instructions for such Product, shall be free from defects in
materials and workmanship, shall be fit for the purpose for which it is intended and shall not be adulterated or misbranded within
the meaning of the Act, and is not an article which may not, under the Act, be introduced into commerce;


 


11.1.3           All
Product shall be Manufactured in accordance with the Specifications, cGMPs, all Laws, this Agreement, and any further formulating,
Manufacturing, packaging or other standards agreed in writing by the Parties;


 


11.1.4           Innocoll
has a back up supplier of all raw materials to Manufacture and supply the Product and has a safety stock available of such raw
materials to Manufacture and supply the Product in quantities matching all sales in the six (6) months prior to the Restated MSA
Effective Date.


 


11.1.5           Innocoll
has provided, and shall upon further request provide to EUSA all pertinent information in its possession relative to physical,
environmental and human health hazards involving the Product;


 






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11.1.6           The
ownership and operation of the Manufacturing Facilities shall be in material compliance with cGMPs and all Laws and any further
formulating, Manufacturing, packaging or other standards agreed in writing by the Parties;


 


11.1.7           Innocoll
conducts and shall conduct any internal quality assurance inspections, as well as quality assurance inspections of its permitted
designees as required by Law;


 


11.1.8           All
Product delivered to EUSA will be free and clear of all liens and encumbrances at the time at which title transfers to EUSA; and


 


11.1.9           During
the Term, neither Innocoll nor its Affiliates shall directly or indirectly Manufacture, and neither Party nor a Party’s
Affiliates shall directly or indirectly Commercialize in the Territory, either itself or with a Third Party, any product that
is a ***, and where such product competes in the Territory with the Product (“Competing Product”), except
as authorized under this Agreement. For avoidance of doubt, any product described on Schedule 11.1.9 shall not be a Competing
Product. Notwithstanding the foregoing, Innocoll or its Affiliates may continue to ***, for so long as Innocoll is ***
pursuant to the agreement between Innocoll and  Biomet ***, as the same may be amended, modified, extended or restated from
time to  time (the “Biomet Agreement”), and may be ***. In the event that the Biomet Agreement is ***,
then Innocoll will ***.


 


11.2        Mutual
Representations and Warranties.   EUSA and Innocoll each represents and warrants to the other as of the Restated MSA Effective
Date that:


 


11.2.1           Organization
and Authority.   It has full corporate right, power and authority to enter into this Agreement and to perform its respective
obligations under this Agreement;


 


11.2.2           No
Conflicts or Violations.   This Agreement is a legal and valid obligation binding upon it and enforceable in accordance with
its terms. The execution and delivery of this


 




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Agreement by such Party and
the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of Laws existing
as of the Restated MSA Effective Date and applicable to such Party and (b) do not conflict with, violate, breach or constitute
a default under, and are not prohibited or materially restricted by, any contractual obligations of such Party or any of its Affiliates
existing as of the Restated MSA Effective Date;


 


11.2.3           Valid
Execution.   Such Party is duly authorized, by all requisite corporate action, to execute and deliver this Agreement and the
execution, delivery and performance of this Agreement by such Party does not require any shareholder action or approval or the
approval or consent of any Third Party, and the Person executing this Agreement on behalf of such Party is duly authorized to
do so by all requisite corporate action;


 


11.2.4           Third
Parties.   It has not granted any right to any Third Party that would conflict with the rights granted to the other Party hereunder;


 


11.2.5           Consents.  
It has obtained all necessary consents, permits, approvals and authorizations of all Governmental Authorities and other Persons
required to be obtained by it as of the Restated MSA Effective Date in connection with the execution, delivery and performance
of this Agreement; and


 


11.2.6           No
Litigation.   There is no action or proceeding pending against such Party or, to such Party’s knowledge, threatened against
such Party that questions the validity of this Agreement or any action taken by such Party in connection with the execution of
this Agreement.


 


11.3        Disclaimer
of Warranty.   EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY FACT OR LAW, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.


 


ARTICLE
XII

INDEMNIFICATION; DEFENSE OF THIRD PARTY CLAIMS


 


12.1        Indemnity
by Innocoll.   Innocoll shall indemnify, defend and hold harmless EUSA, its Affiliates, its permitted licensees and its and
their officers, directors, employees, and agents from and against any and all Losses to the extent caused by, relating to, based
upon, arising out of, or in connection with (a) Innocoll’s material breach of any of its covenants, obligations, representations
or warranties under this Agreement; (b) the failure of the Product or services provided hereunder to conform to the Specifications
or to be Manufactured in compliance with the Specifications or any Laws, including, but not limited to, cGMPs, provided, that
such defect or failure did not arise or result from the improper use, storage or handling of


 






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such Product by EUSA; (c) any adulteration
of Product supplied hereunder while in Innocoll’s possession; (d) any violation of Laws by Innocoll in performing its obligations
under this Agreement; or (e) any infringement or misappropriation of Third Party rights to intellectual property relating to any
services or Product provided by Innocoll (except for the trademarks Garamycin and Sulmycin); or (f) the negligence or willful
misconduct of Innocoll or its Affiliates or Third Party manufacturers or their respective officers, directors, employees, agents
or consultants in performing any obligations under this Agreement; provided, however, that the foregoing indemnification
obligations shall not apply to the extent such Losses are caused by action or omission to act of EUSA for which EUSA is required
to indemnify Innocoll under Section 12.2.


 


12.2         Indemnity
by EUSA.   EUSA shall indemnify, defend and hold harmless Innocoll, its Affiliates and their officers, directors, employees
and agents from and against any and all Losses to the extent caused by, relating to, based upon, arising out of, or in connection
with (a) EUSA’s material breach of any covenants, obligations, representations or warranties under this Agreement;
(b) EUSA’s negligence or willful misconduct in performing its obligations under this Agreement; or (c) any representation
or warranty made by EUSA to its customers or users with respect to the Product other than representations or warranties that such
Product (i) conforms to the Specifications or (ii) is not, at the time of shipment by Innocoll to EUSA adulterated;
provided, however, that the foregoing indemnification obligations shall not apply to the extent that such Losses
are caused by action or omission to act of Innocoll for which Innocoll is required to indemnify EUSA under Section 12.1.


 


12.3         Procedure
for Indemnification.   Each Party seeking to be reimbursed, indemnified, defended, and held harmless under Section 12.1 or 12.2
(each, an “Indemnitee”) shall (a) provide the Party obligated to indemnify such Indemnitee (the “Indemnitor”)
with prompt, written notice of any claim, suit, demand, or other action for which such Indemnitee seeks to be reimbursed, indemnified,
defended, and held harmless (each, a “Claim”), which notice shall include a reasonable identification of the
alleged facts giving rise to such Claim; (b) in the case of a Claim asserted by a Third Party (a “Third Party Claim”),
grant the Indemnitor reasonable authority and control over the defense and settlement of any such Third Party Claim; and (c) reasonably
cooperate with the Indemnitor and its agents in defense of any Third Party Claim, at the Indemnitor’s expense. Each Indemnitee
shall have the right to participate in the defense of any Third Party Claim for which Indemnitee seeks to be reimbursed, indemnified,
defended, or held harmless, by using attorneys of such Indemnitee’s choice, at such Indemnitee’s expense. Any settlement
of a Third Party Claim for which any Indemnitee seeks to be reimbursed, indemnified, defended, or held harmless under this Article
12 shall be subject to the prior written approval of such Indemnitee, which approval shall not be unreasonably withheld, conditioned,
or delayed.


 






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12.4        Limitation
of Liability.   IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE LOSSES
OF WHATEVER NATURE (INCLUDING LOST PROFITS), WHETHER BASED UPON BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT,
BREACH OF STATUTORY DUTY OR OTHERWISE, IN EACH CASE WHETHER OR NOT REASONABLY FORESEEABLE OR CONTEMPLATED BY THE PARTIES. THE
FOREGOING LIMITATIONS WILL NOT LIMIT EITHER PARTY’S OBLIGATIONS TO THE OTHER PARTY UNDER SECTION 10, SECTION 12.1 AND SECTION
12.2.


 


12.5        Defense
of Third Party Infringement Claims.   If the Product becomes the subject of a Third Party’s claim or assertion of infringement,
the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly
confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing,
each Party shall have the right to defend itself against a suit that names it as a defendant. Neither Party shall enter into any
settlement of any claim described in this Section 12.5 that adversely affects the other Party’s rights or interests without
such other Party’s prior written consent, not to be unreasonably withheld or delayed. In any event, the Parties shall reasonably
assist one another and cooperate in any such litigation at the other Party’s request and expense.


 


ARTICLE
XIII

INSURANCE


 


13.1        Required
Insurance Coverage.   Each Party will obtain and keep in force insurance in scope and amount as required by Law in relation
to its activities hereunder and such additional amounts as may be reasonably necessary to cover its indemnity obligations under
this Agreement with scope and coverage as is normal and customary in the biotechnology/pharmaceutical industry generally for parties
similarly situated. It is understood that such insurance will not be construed to limit a Party’s liability with respect
to its indemnification obligations under Article 13. Each Party will provide to the other Party upon request a certificate
evidencing the insurance the Party is required to obtain and keep in force under this Article 13. Such certificate will provide
that such insurance will not expire without renewal or be cancelled or modified without at least thirty (30) days’
prior notice to the other Party.


 


ARTICLE
XIV

TERM AND TERMINATION


 


14.1        Term.


 


14.1.1           Except
as otherwise specifically set forth in this Agreement (including Sections 8.8 and 8.10, which together with the payment obligations
thereunder shall survive termination or expiration of this Agreement), or unless otherwise agreed in writing by the


 






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Parties, this
Agreement commenced on the Original MSA Effective Date and shall expire on the tenth (10th) anniversary thereof (the “Initial
Term”) unless terminated earlier or extended or renewed in accordance with this Agreement (the Initial Term and any Renewal
Terms (as defined below) collectively the “Term”). Thereafter, this Agreement shall automatically renew for
additional five (5) year periods (each, a “Renewal Term”) unless (a) written notice of non-renewal
is provided by either Party to the other at least three (3) years prior to the expiration of the Initial Term or a Renewal
Term or (b) this Agreement is terminated sooner as permitted hereunder.


 


14.2        Termination.  
Either Party shall have the right to terminate this Agreement in any of the following events:


 


14.2.1           Termination
for Breach.   Either Party may, without prejudice to any other remedies available to it at law or in equity, terminate this
Agreement in the event that the other Party (as used in this subsection, the “Breaching Party”) shall have
materially breached or defaulted in the performance of any of its obligations. The Breaching Party shall have thirty (30) days
in the case of any default other than undisputed amounts hereunder, or fifteen (15) Business Days in the case of a default
or failure to pay any money due hereunder, after written notice thereof was provided to the Breaching Party by the non-breaching
Party to remedy such default (or, if such default cannot be cured within such 30-day period, if the Breaching Party must commence
and diligently continue actions to cure such default during such 30-day period). Any such termination shall become effective at
the end of such 30-day period unless the Breaching Party has cured any such breach or default prior to the expiration of, as applicable,
such 15-Business Day period or such 30-day period (or, if such default cannot be cured within such 30-day period, if the Breaching
Party has commenced and diligently continued actions to cure such default). Innocoll’s failure to Manufacture Product in
accordance with Specifications or to comply with cGMP or Law shall be a per se material breach of this Agreement.


 


14.2.2           Termination
for Force Majeure Event.   Notwithstanding anything to the contrary contained in this Agreement, in the event a Force Majeure
Event shall have occurred and be continuing for ninety (90) consecutive days (“FM Period”), the Party
not suffering such Force Majeure Event shall be entitled to terminate this Agreement effective immediately upon written notice
to the Party suffering such Force Majeure Event, provided, however, that in the event that a Force Majeure Event
shall have occurred which results in a disruption of supply of Product to EUSA and Innocoll shall have identified a Third Party
to Manufacture and supply Product and commenced audits and other steps required to prepare such Third Party to obtain Regulatory
Approval within a FM Period then (i) EUSA shall not be entitled to so terminate this Agreement; (ii) the Parties will cooperate
in Manufacture Approval Activities, and (iii) following receipt of necessary Regulatory Approvals and entering into a Third Party
Agreement, such Third Party will supply Product to EUSA, it being understood and agreed that following the


 






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cessation of the Force
Majeure Event, Innocoll will use Commercially Reasonable Efforts to recommence supply of Product from its own Manufacturing Facilities.
In the event that Innocoll fails to identify a Third Party in the FM Period then EUSA may terminate this Agreement effective immediately
upon another notice to Innocoll.


 


14.2.3           Termination
for Reasons of Insolvency or Termination of Business Activities.   Either Party shall be entitled to terminate this Agreement
if the other Party becomes insolvent or is the subject of a petition in bankruptcy whether voluntary or involuntary (and not dismissed
within sixty (60) days) or of any other proceeding under bankruptcy, insolvency or similar laws, makes an assignment
for the benefit of creditors, is named in such a petition, or its property is subject to a suit for the appointment of a receiver,
or is dissolved or liquidated. Such termination right may be exercised without the need for written notice within thirty (30) days
following the date as of which the Party entitled to terminate receives knowledge of such insolvency or termination of business
activities by the other Party.


 


ARTICLE
XV

AGREEMENT RIGHTS AND DUTIES UPON TERMINATION


 


15.1        ***.   Upon termination of this Agreement by EUSA pursuant to Section 14.2 or Innocoll’s election
not to allow for the automatic renewal of this Agreement for any reason other than material breach by EUSA, EUSA shall be entitled to assume (or have any other Person assume) *** and, in order to facilitate same, Innocoll and Syntacoll shall ***.


 


15.2        Pending
Purchase Orders.   Except in cases of the termination of this Agreement by either Party under Section 14.2, the termination
of this Agreement shall not affect Purchase Orders placed by EUSA and accepted by Innocoll at the time notice of termination is
given and until the time any such termination becomes effective. Except in cases of the termination of this Agreement by Innocoll
for material breach by EUSA under Section 14.2, or (b) termination of this Agreement by Innocoll due to a Force Majeure Event
suffered by EUSA under Section 14.2.2, EUSA shall have no liability to Innocoll for any costs that Innocoll may have incurred
(or to which Innocoll may be committed) in connection with materials used by Innocoll in the Manufacturing or packaging of Product
prior to the effectiveness of any notice of termination. Furthermore, prior to termination or expiration of this Agreement Innocoll
shall make Commercially Reasonable Efforts to minimize excess inventory of Product, and upon termination or expiration of this
Agreement, the Parties shall make a good faith effort to dispose of remaining quantities of Product in inventory in an equitable
manner.


 


15.3        Outstanding
Payment.   Payments of amounts owing to either Party under this Agreement as of its expiration or termination shall be due and
payable within the later of (a) to


 




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the extent such amounts can
be calculated and a fixed sum determined at the time of expiration or termination of this Agreement, thirty (30) days after the
date of such expiration or termination or (b) ten (10) days after the date in which such amounts can be calculated and a fixed
sum determined.


 


15.4         Return
of Materials.   Within thirty (30) days following the date of termination of this Agreement, each Party shall destroy
or return to the other Party and shall cause the destruction or return of all tangible items bearing, containing or contained
in any of the Confidential Information of the other Party, and shall provide the other Party written certification of such destruction
or return.


 


15.5         Accrued
Rights.   Termination, relinquishment or expiration of this Agreement for any reason shall be without prejudice to any rights
that shall have accrued to the benefit of any Party prior to such termination, relinquishment or expiration.


 


15.6         Survival.  
The provisions of Articles 8-17 inclusive (but only the portions thereof that would reasonably be expected to survive expiration
or termination) and Sections 3.6, 3.7, 5.4, 6.2-6.4, 7.3 and 7.4 to the extent they are intended to survive expiration or
termination shall survive any expiration or other termination of this Agreement.


 


ARTICLE
XVI

GOVERNING LAW; DISPUTE RESOLUTION


 


16.1         Governing
Law.   This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without
giving effect to any conflict of laws provisions, except matters of intellectual property that will be determined in accordance
the intellectual property laws relevant to the intellectual property in question. The UNICITRAL Convention for the International
Sale of Goods, as well as any other unified laws relating to the conclusion and implementation of contracts for the international
sale of goods, will not apply.


 


16.2         Consent
to Jurisdiction and Forum Selection.   The Parties hereto agree that all proceedings, arising in connection with this Agreement
shall be initiated and tried exclusively in the local and federal courts located in the Commonwealth of Pennsylvania. The aforementioned
choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of
litigation between the Parties with respect to or arising out of this Agreement in any jurisdiction other than that specified
in this Section 16.2. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar
doctrine or to object to venue with respect to any proceeding brought in accordance with this section, and stipulates that the
local and federal courts located in the Commonwealth of Pennsylvania shall have personal jurisdiction and venue over each of them
for purposes of litigating any dispute, controversy or proceeding arising out of or related to this Agreement. Each Party hereby


 






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authorizes and agrees to accept service of process sufficient for personal jurisdiction in any action against it as contemplated
by this section by registered or certified mail, return receipt requested, postage prepaid to its address for the giving of notices
as set forth in this Agreement. Any final judgment received against a Party in any action or proceeding shall be conclusive as
to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by applicable Laws.


 


16.3         Injunctive
Relief.   Notwithstanding anything to the contrary in this Agreement, either Party will have the right to seek temporary injunctive
relief in any court of competent jurisdiction as may be available to such Party under the laws and rules applicable in such jurisdiction
with respect to any matters arising out of the other Party’s performance of its obligations under this Agreement.


 


ARTICLE
XVII

GENERAL PROVISIONS


 


17.1         Notices.  
All notices or other communications that are required or permitted under this Agreement will be in writing and delivered personally,
sent by facsimile (and promptly confirmed by personal delivery or overnight courier as provided in this Agreement), or sent by
internationally-recognized overnight courier to the addresses below. Any such communication will be deemed to have been given
(a) when delivered, if personally delivered or sent by facsimile on a Business Day (so long as promptly confirmed by personal
delivery or overnight courier as provided in this Agreement), and (b) on the second Business Day after dispatch, if sent by internationally-recognized
overnight courier. Unless otherwise specified in writing, the mailing addresses of the Parties shall be as described below.


 


	
        For EUSA:
	with a copy to:
	 	 
	EUSA Pharma (Europe) Limited	Sills Cummis & Gross, P.C.
	The Magdalen Centre	One Riverfront Plaza
	Oxford Science Park	Newark New Jersey 07102
	Oxford	Fax:  (973) 643-6500
	OX4 4GA	Attention:  Ira A, Rosenberg, Esq.
	Fax: +44 (0) 1865 784253	 
	Attention:  Zoe Evans, Esq., General Counsel	 
	 	 
	For Innocoll:	with a copy to:
		 
	Innocoll Holdings, Inc.	Sonnenschein Nath & Rosenthal LLP
	42662 Kitchen Prim Ct.	101 JFK Parkway
	Ashburn, VA 20148	Short Hills, NJ 07078-2708
	Fax:	Fax:  973-912-7199
	Attention:  Dr. Michael Myers, President	Attention:  Jeffrey A. Baumel, Esq.


 






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17.2         Independent
Status.   Neither Party is an agent, employee or representative of the other. Neither Party shall have the authority to make
any statements, representations or commitments of any kind, nor to take any action, which shall be binding on the other Party,
except as may be explicitly authorized by the other Party in writing. This Agreement shall not constitute, create or in any way
be interpreted as a joint venture, partnership or formal business organization of any kind.


 


17.3         Force
Majeure.   Subject to the provisions of Section 14.2.2 and Section 15.2 of this Agreement, a Party shall be excused from a delay
in performing, or a failure to perform, its obligations under this Agreement (except for the payment of any undisputed amounts
due hereunder) to the extent such delay or failure is caused by acts of God, fires, explosions, wars or other hostilities, insurrections,
revolutions, earthquakes, floods, epidemics or quarantine restrictions (each a “Force Majeure Event”). In such
event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay;
provided, that such Party shall immediately notify the other Party as soon as possible in writing and regularly update
the other Party as to the anticipated scope and duration of the delay and shall use its best efforts to resume performance as
soon as possible.


 


17.4         Entire
Agreement; Amendment and Waiver.   This Agreement, including the Exhibits and Schedules attached hereto (each of which is hereby
and thereby incorporated herein and therein by reference) between the Parties shall constitute the entire agreement and understanding
of the Parties relating to the subject matter of this Agreement and supersedes all prior oral or written agreements, representations,
understandings or arrangements between the Parties relating to the subject matter of this Agreement. No amendment, supplement
or other modification to any provision of this Agreement shall be binding unless in writing and signed by both Parties. No waiver
of any rights under this Agreement shall be effective unless in writing signed by the Party to be charged. A waiver of a breach
or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation
of that provision or as a waiver of any breach or violation of any other provision of this Agreement.


 


17.5         Headings;
Construction; Certain Conventions.   The headings used in this Agreement have been inserted for convenience of reference only
and do not define or limit the provisions hereof. The Exhibits and Schedules to this Agreement are incorporated herein by reference
and will be deemed a part of this Agreement. Unless otherwise expressly provided herein or the context of this Agreement otherwise
requires, (a) words of any gender include each other gender, (b) words such as “herein”, “hereof, and “hereunder”
refer to this Agreement as a whole and not merely to the particular provision in which such words appear, (c) words using the
singular will include the plural, and vice versa, (d) the words “include,” “includes” and “including”
will be deemed to be followed by the phrase “but not limited to”, “without limitation”, “inter alia”
or words of similar import, (e) the word “or” will be deemed to include


 






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the word “and” (e.g., “and/or”)
and (f) references to “ARTICLE,” “Section,” “subsection”, “clause” or other subdivision,
or to a Schedule or Exhibit, without reference to a document are to the specified provision, Schedule or Exhibit of this Agreement.
This Agreement will be construed as if it were drafted jointly by the Parties and shall not be strictly construed against either
Party.


 


17.6         Assignment.  
Subject to Section 2.4, none of the Parties herein shall assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of the other Party. Each Party shall be entitled (without the consent of the other Party) to
assign this Agreement (or any of its rights or obligations under this Agreement) to (a) its Affiliate (as long as such entity
remains an Affiliate of the relevant Party) provided that the assigning Party shall be responsible for the performance of this
Agreement by such Affiliate; or (b) to any corporation or other Person to which it has sold all or substantially all of its assets
relating to this Agreement provided that the acquiring corporation or other Person agrees to be bound by the terms of this Agreement.
If a Party delegates all or any of its obligations under this Agreement to any Third Party (as permitted under this Agreement),
the Party delegating shall be fully responsible to the other Party for the proper performance of those obligations and for any
negligent act or omission made by the Third Party or its staff in relation thereto. For purposes of clarity, any change of control
or merger or consolidation of a Party shall not be deemed an assignment of this Agreement to the surviving entity.


 


17.7         Severability.  
If any provision of this Agreement or application thereof to anyone is adjudicated to be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect any provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall not invalidate or render unenforceable such provision
or application in any other jurisdiction. Further, the judicial or other competent authority making such determination shall have
the power to limit, construe or reduce the duration, scope, activity and/or area of such provision, and/or delete specific words
or phrases as necessary to render, such provision enforceable in such jurisdiction.


 


17.8         Further
Assurances.   Each Party shall, as and when requested by the other Party, do all acts and execute all documents as may be reasonably
necessary to give effect to the provisions of this Agreement.


 


17.9         Counterparts.  
This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.


 


[Signature Page Follows]


 




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IN WITNESS WHEREOF,
EUSA and Innocoll, by their duly authorized officers, have executed this Agreement as of the Effective Date.


 


	INNOCOLL PHARMACEUTICALS LIMITED


	 	EUSA PHARMA (EUROPE) LIMITED
	 	 	 
	By:	/s/ Michael Myers	 	By:	/s/ David Cook
	 	Name:	Michael Myers	 	 	Name:	David Cook
	 	Title:	President & CEO	 	 	Title:	Director
	 	 	 	 	 	 	 
	By:	 	 	 	 	 	 
	 	Name:	 	 	 	 	 
	 	Title:	 	 	 	 	 


 


	By:	 	 	 	 	 	 
	 	Name:	 	 	 	 	 
	 	Title:	 	 	 	 	 



 


	SYNTACOLL AG
(solely as Sections 7.2,11.1 and 15.1)	 
	 	 
	By:	/s/ Michael Myers	 
	 	Name:	Michael Myers	 
	 	Title:	President & CEO	 
	 	 	 	 
	 	 	 	 




    	 



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SCHEDULE 1.22



 


Product Specifications


 


See attached.


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

***


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

SCHEDULE 3.1.1


 


Packaging and Labeling Specifications


 


See attached.


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

Schedule 3.1.1


 


***




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

SCHEDULE 3.3.1


 


Manufacturing Standards and Process


 


The Manufacturing standards that shall apply to Product produced
by Innocoll for EUSA during the term of this Agreement shall be those cGMP standards imposed by Laws and Governmental Authorities.


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

SCHEDULE 6.1.1


 


Quality Control and Assurance Procedures


 


1.          Innocoll
shall follow cGMP standards for the release of Product and packaging for sale to the market place.


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

 


SCHEDULE 11.1.9


 





Non-Competing Products


 


See attached.


 




    	 



    	Confidential Materials omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 under the Securities Act of 1933, as amended. Confidential portions are marked: [ *** ]



    

 


Schedule 11.1.9


 


Gentamicin in combination with paclitaxel or any other drug substance
that is not an antibiotic and whose primary use is not to treat or prevent post surgical infection.