SECTION 5.1.3
HEREOF).
IF THE AGGREGATE AMOUNT STATED TO BE DUE FROM BIOMARIN/GENZYME LLC
BASED ON SUCH QUARTERLY RECONCILIATION FOR ACTUAL PROGRAM COSTS IS LESS THAN THE
AMOUNT ALREADY CONTRIBUTED BY THE PARTIES TO THE CAPITAL OF BIOMARIN/GENZYME LLC
WITH RESPECT TO BUDGETED PROGRAM COSTS FOR SUCH CALENDAR QUARTER, SUCH EXCESS
SHALL BE CREDITED AGAINST THE NEXT SUCCESSIVE QUARTERLY CAPITAL
CONTRIBUTION(S) DUE FROM GENZYME OR BIOMARIN HEREUNDER.
4.3 DISTRIBUTIONS.
DISTRIBUTIONS TO EACH MEMBER SHALL BE MADE AT SUCH TIMES AND
IN SUCH AMOUNTS AS DETERMINED IN ACCORDANCE WITH THE OPERATING AGREEMENT.
4.4 BOOKS OF ACCOUNT; AUDIT.
GENZYME SHALL KEEP AND MAINTAIN PROPER AND
COMPLETE BOOKS OF ACCOUNT, AND SHALL MAINTAIN A BANK ACCOUNT, ON BEHALF OF
BIOMARIN/GENZYME LLC.
IN THE EVENT
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
13
THAT EITHER BIOMARIN OR GENZYME REASONABLY DEEMS THE PROGRAM TO BE MATERIAL TO
BIOMARIN OR GENZYME, AS THE CASE MAY BE, FOR FINANCIAL ACCOUNTING PURPOSES,
THEN, UPON SUCH PARTY'S REQUEST, AUDITED FINANCIAL STATEMENTS OF
BIOMARIN/GENZYME LLC SHALL BE PREPARED BY AN INDEPENDENT ACCOUNTING FIRM TO BE
SELECTED BY THE STEERING COMMITTEE.
EACH OF BIOMARIN AND GENZYME SHALL KEEP AND
MAINTAIN PROPER AND COMPLETE RECORDS AND BOOKS OF ACCOUNT DOCUMENTING ALL
PROGRAM COSTS INCURRED BY SUCH PARTY.
EACH OF BIOMARIN/GENZYME LLC, BIOMARIN
AND GENZYME SHALL PERMIT INDEPENDENT ACCOUNTANTS RETAINED BY BIOMARIN OR GENZYME
(THE "AUDITING PARTY") TO HAVE ACCESS TO ITS RECORDS AND BOOKS FOR THE SOLE
PURPOSE OF DETERMINING THE APPROPRIATENESS OF PROGRAM COSTS CHARGED BY OR
ACCRUED TO THE PARTY BEING AUDITED HEREUNDER.
SUCH EXAMINATION SHALL BE
CONDUCTED DURING REGULAR BUSINESS HOURS AND UPON REASONABLE NOTICE, AT THE
AUDITING PARTY'S OWN EXPENSE AND NO MORE THAN ONCE IN EACH CALENDAR YEAR DURING
THE TERM AND ONCE DURING THE THREE (3) CALENDAR YEARS FOLLOWING THE EXPIRATION
OR TERMINATION HEREOF.
IF SUCH EXAMINATION REVEALS THAT SUCH PROGRAM COSTS HAVE
BEEN MISSTATED, ANY ADJUSTMENT SHALL BE PROMPTLY REFUNDED OR PAID, AS
APPROPRIATE.
THE AUDITING PARTY SHALL PAY THE FEES AND EXPENSES OF THE
ACCOUNTANT ENGAGED TO PERFORM THE AUDIT, UNLESS SUCH AUDIT REVEALS AN OVERCHARGE
OR ACCRUAL OF [**] OR MORE FOR THE PERIOD EXAMINED, IN WHICH CASE THE PARTY WHO
RECEIVED SUCH OVERPAYMENT SHALL PAY ALL REASONABLE COSTS AND EXPENSES INCURRED
BY THE AUDITING PARTY IN THE COURSE OF MAKING SUCH DETERMINATION, INCLUDING THE
FEES AND EXPENSES OF THE ACCOUNTANT ALONG WITH INTEREST AT THE RATE SET FORTH IN
SECTION 14.4.
4.5 ENFORCEABILITY OF SECTIONS 4.1 AND 4.2.
THE AGREEMENTS REGARDING CAPITAL
CONTRIBUTIONS SET FORTH IN SECTIONS 4.1 AND 4.2 HEREOF ARE BY AND BETWEEN, AND
FOR THE BENEFIT OF, GENZYME AND BIOMARIN ONLY, AND ARE NOT ENFORCEABLE BY
BIOMARIN/GENZYME LLC OR ANY THIRD PARTY.
4.6 GENERAL AND ADMINISTRATIVE SERVICES.
EXCEPT AS PROVIDED IN THIS
SECTION 4.6, EACH OF BIOMARIN AND GENZYME SHALL CONTINUE TO PROVIDE GENERAL AND
ADMINISTRATIVE SERVICES TO BIOMARIN/GENZYME LLC AFTER THE EFFECTIVE DATE (IN
SUBSTANTIALLY THE