THE DIFFERENCE TO THE OTHER WITHIN [**]
OF THE DATE OF DELIVERY OF SUCH REPORT.
3.7
RIGHT TO AUDIT. BARR AGREES TO MAKE AND KEEP FULL AND ACCURATE
BOOKS AND RECORDS IN SUFFICIENT DETAIL TO ENABLE ROYALTIES PAYABLE TO CEPHALON
HEREUNDER TO BE DETERMINED. CEPHALON SHALL HAVE THE RIGHT TO APPOINT AN
INDEPENDENT ACCOUNTING FIRM, REASONABLY ACCEPTABLE TO BARR ("INDEPENDENT
AUDITOR"), TO MAKE A SPECIAL AUDIT OF THE BOOKS AND RECORDS OF BARR [**]. THE
INDEPENDENT AUDITOR SHALL TREAT AS CONFIDENTIAL ALL INFORMATION OBTAINED IN SUCH
AUDIT AND SHALL NOT DISCLOSE THE SAME TO CEPHALON OR OTHERS, EXCEPT THAT THE
INDEPENDENT AUDITOR MAY DISCLOSE TO CEPHALON SUCH INFORMATION AS MAY PERTAIN TO
[**]. UPON TEN (10) DAYS PRIOR WRITTEN NOTICE TO BARR, THE INDEPENDENT AUDITOR
SHALL HAVE FULL ACCESS TO THE BOOKS AND RECORDS OF BARR NECESSARY [**]. [**]. IF
IT IS DETERMINED FOLLOWING SUCH AUDIT THAT [**], THEN BARR SHALL [**].
4.
SUPPLY
On Barr's request, Cephalon shall supply Barr with Cephalon Supplied Modafinil
Product on commercially reasonable terms to be mutually agreed, for sale in
accordance with the terms of this Agreement.
5.
TERM AND TERMINATION
5.1
TERM. THIS AGREEMENT SHALL COMMENCE AS OF THE EFFECTIVE DATE AND
SHALL REMAIN IN EFFECT UNLESS TERMINATED IN ACCORDANCE WITH SECTION 5.2 BELOW.
5.2
TERMINATION DUE TO MATERIAL BREACH BY EITHER PARTY. UPON MATERIAL
BREACH OF ANY TERM OF THIS AGREEMENT, THE BREACHING PARTY WILL BE GIVEN WRITTEN
NOTICE THEREOF AND SHALL HAVE [**] WITHIN WHICH TO REMEDY SUCH BREACH; OR, IF
APPLICABLE, SUCH LONGER PERIOD (NOT EXCEEDING [**]) AS WOULD BE REASONABLY
NECESSARY FOR A DILIGENT PARTY TO CURE SUCH MATERIAL BREACH; PROVIDED, HOWEVER,
THAT THE BREACHING PARTY HAS COMMENCED AND CONTINUES DILIGENT EFFORTS TO CURE
DURING THE INITIAL [**] PERIOD FOLLOWING RECEIPT OF SUCH NOTICE OF BREACH. IN
THE EVENT OF THE BREACHING PARTY'S FAILURE TO REMEDY ANY SUCH BREACH WITHIN THIS
TIME PERIOD, THE NON-BREACHING PARTY SHALL BE ENTITLED TO TERMINATE THIS
AGREEMENT AND SEEK AVAILABLE REMEDIES AT LAW OR EQUITY.
5.3
SURVIVAL OF RIGHTS AND TERMS. TERMINATION OR EXPIRATION OF THIS
AGREEMENT SHALL NOT AFFECT ANY ACCRUED RIGHTS OF EITHER PARTY. NOTWITHSTANDING
TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE FOLLOWING SECTIONS SHALL
SURVIVE: THIS SECTION 5.3 AND ARTICLES 3, 6, 7, 8 AND 9.
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
9
6.
REPRESENTATIONS AND WARRANTIES
6.1
GENERAL. CEPHALON AND BARR HEREBY REPRESENT AND WARRANT TO THE
OTHER THAT (A) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY EACH
OF THEM DOES NOT CONFLICT WITH, OR CONSTITUTE A BREACH OF ANY ORDER, JUDGMENT,
AGREEMENT, OR INSTRUMENT TO WHICH THEY ARE A PARTY; (B) THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY EACH OF THEM DOES NOT REQUIRE THE CONSENT
OF ANY PERSON OR THE AUTHORIZATION OF (BY NOTICE OR OTHERWISE)