ALLOW MANUFACTURE AND SUPPLY OF SUCH
UNITS OF FINISHED PRODUCT (AFTER GIVING EFFECT TO THE PROVISIONS SET FORTH ABOVE
IN SECTION 6.1(A) AND EXHIBIT E, AS RELEVANT, WITH RESPECT TO SHORTAGES OF API
BULK DRUG SUBSTANCE), AND (C) FOVEA SHALL NOT BE DEEMED OR TREATED AS BEING IN
BREACH OF ANY OF ITS OBLIGATIONS UNDER THIS SECTION 6.2 TO USE DILIGENT EFFORTS
TO MANUFACTURE AND/OR SUPPLY FINISHED PRODUCT IN THE CASE OF ANY FAILURE OR
INABILITY OF FOVEA TO MANUFACTURE AND/OR SUPPLY OR CAUSE TO BE MANUFACTURED
AND/OR SUPPLIED FINISHED PRODUCT PURSUANT TO THIS SECTION 6.2 IF (I) SUCH
FAILURE OR INABILITY IS DUE TO A SHORTAGE OF FINISHED PRODUCT AND THE AVAILABLE
SUPPLY OF FINISHED PRODUCT, IF ANY, IS ALLOCATED BY FOVEA BETWEEN THE PARTIES ON
A PRO-RATA BASIS BASED ON GOOD FAITH FORECASTS OF THE RESPECTIVE REQUIREMENTS OF
THE PARTIES AND THEIR RELATED PARTIES, WHICH, IN THE CASE OF THE REQUIREMENTS OF
DYAX AND ITS RELATED PARTIES, SHALL HAVE BEEN PROVIDED BY DYAX TO FOVEA IN
WRITING [*****] AND (II) FOVEA USES DILIGENT EFFORTS TO RESOLVE ALL FAILURE TO
MANUFACTURE AND/OR SUPPLY ISSUES AS PROMPTLY AS POSSIBLE IN CONSULTATION WITH
DYAX.
(E)
TERMINATION OF SUPPLY.
THE OBLIGATIONS OF FOVEA UNDER THIS
SECTION 6.2 TO SUPPLY FINISHED PRODUCT TO DYAX MAY BE TERMINATED BY FOVEA BY
GIVING WRITTEN NOTICE TO DYAX THAT FOVEA IS TERMINATING SUCH OBLIGATIONS UNDER
THIS SECTION 6.2, IN WHICH CASE SUCH OBLIGATIONS OF FOVEA SHALL TERMINATE ON THE
EARLIER OF (I) THE DATE ON WHICH DYAX AND/OR ITS RELATED PARTIES HAVE
ESTABLISHED AN ALTERNATIVE SOURCE OF SUPPLY OF FINISHED PRODUCT THAT CAN
REPLACE, WITHOUT MATERIAL INTERRUPTION OR DELAY, FOVEA'S SUPPLY OF FINISHED
PRODUCT PURSUANT TO THIS SECTION 6.2 AND (II) THE [*****] THAT FOVEA GIVES
WRITTEN NOTICE OF TERMINATION TO DYAX PURSUANT TO THE FOREGOING PROVISIONS OF
THIS SECTION 6.2(E); PROVIDED, HOWEVER, THAT, NOTWITHSTANDING THE FOREGOING, IN
NO EVENT SHALL FOVEA'S OBLIGATIONS UNDER SECTION 6.2(A) OR (B) TO SUPPLY
FINISHED PRODUCT TO DYAX TERMINATE UNLESS AND UNTIL FOVEA AND ALL OF ITS RELATED
PARTIES HAVE DISCONTINUED ALL MANUFACTURING OF FINISHED PRODUCT. IN THE EVENT
THAT, AT ANY TIME DURING THE PERIOD IN WHICH FOVEA HAS AN OBLIGATION TO SUPPLY
FINISHED PRODUCT TO DYAX PURSUANT TO SECTION 6.2(A) OR (B) ABOVE, FOVEA IS
UNABLE TO SUPPLY OR HAVE SUPPLIED SUFFICIENT QUANTITIES OF FINISHED PRODUCT TO
MEET THE REASONABLE REQUIREMENTS OF DYAX AND ITS RELATED PARTIES FOR USE THEREOF
IN CONNECTION WITH THE PURPOSES AND ACTIVITIES SET FORTH IN SECTION 6.2(A) OR
(B), AS APPLICABLE, AS INDICATED IN GOOD FAITH FORECASTS TO BE PROVIDED BY DYAX
PURSUANT TO THE FOVEA SUPPLY AGREEMENT OR THIS SECTION 6.2, THEN DYAX
* Confidential Treatment Requested.
Omitted portions filed with the Commission.
28
SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION) TO MANUFACTURE FINISHED PRODUCT
SOLELY FOR SUCH PURPOSES AND ACTIVITIES.
DYAX MAY EXERCISE ITS RIGHTS UNDER
THIS SECTION 6.2(E) WITH RESPECT TO FINISHED PRODUCT BY GIVING THIRTY (30) DAYS
PRIOR WRITTEN NOTICE TO FOVEA.
DYAX MAY ALSO EXERCISE