sold in such fiscal quarter (and provide written notice to
Gen-Probe of such calculation); (D) fourth, apply and credit the difference
between such amount paid to Gen-Probe for the eSAS 2 Instrument sold in such
fiscal quarter as reimbursement to Gen-Probe for the eSAS 2 Development Costs
(and provide written notice to Gen-Probe of such calculation); (E) fifth,
calculate (and provide written notice to Gen-Probe of such calculation) and
retain the Chiron Blood Screening Split, if any; and (F) sixth, pay to Gen-Probe
an amount equal to the Gen-Probe Blood Screening Split, if any.
Until such time
as Chiron receives written notice from Gen-Probe that Gen-Probe has been
reimbursed for all eSAS 2 Development Costs, then the provisions of
Section 3.3.6 of the Agreement (amended as provided in Section 6.3 above) shall
govern the distribution of consideration received on sale, transfer or other
distribution of the eSAS 2 Instrument."
8.4.3
CONTROL OF THE PROGRAM UPON UNILATERAL FUNDING.
GEN-PROBE SHALL HAVE THE RIGHT TO APPOINT THE PROJECT MANAGER FROM AND AFTER THE
EFFECTIVE DATE OF TERMINATION BY CHIRON UNDER SECTION 8.3 AND THE DECISION TO
CONTINUE THE PROGRAM.
GEN-PROBE SHALL HAVE THE RIGHT TO MAKE SUCH MATERIAL
MODIFICATIONS TO THE ESAS 2 DEVELOPMENT PROGRAM THAT IT DEEMS NECESSARY OR
PRUDENT IN ITS REASONABLE DISCRETION, WITHOUT THE ACCEPTANCE OF THE OTHER PARTY
AS OTHERWISE REQUIRED UNDER SECTION 3.3.4 OF THIS ESAS 2 ADDENDUM.
NOTWITHSTANDING THE ABOVE, GEN-PROBE SHALL REMAIN OBLIGATED TO PROVIDE CHIRON
WITH A COPY OF THE ESAS 2 DEVELOPMENT PROGRAM, AND ALL NOTICE AND REPORTING
OBLIGATIONS SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT.
8.4.4
RIGHTS UNDER AGREEMENT.
EXCEPT AS EXPRESSLY
MODIFIED BY THIS SECTION 8.3, THE PARTIES SHALL RETAIN ALL RIGHTS AND
OBLIGATIONS ALLOCATED PURSUANT TO SECTION 3.2 OF THE AGREEMENT.
9.
ESCALATION.
9.1
ESCALATION PROCESS.
PRIOR TO IMPLEMENTING THE ARBITRATION PROCESS
MORE PARTICULARLY DESCRIBED IN ARTICLE 13 OF THE AGREEMENT, THE PARTIES AGREE TO
ESCALATE ANY DISPUTE FIRST TO A DISCUSSION BETWEEN RESPONSIBLE MANAGERS, AND IF
THEY CANNOT AGREE, THEN TO THE SUPERVISORY BOARD.
HOWEVER THE PARTIES
EXPLICITLY ACKNOWLEDGE THAT IN THE EVENT OF THE NEED FOR AN URGENT DECISION THE
PARTY WITH PRIMARY RESPONSIBILITY WILL PROCEED TO MAKE THE DECISION, AND
IMPLEMENT.
IT IS AGREED THAT THE PARTY WITH PRIMARY RESPONSIBILITY WILL MAKE
ALL REASONABLE AND TIMELY EFFORTS TO INFORM THE OTHER PARTY OF THE ISSUE
REQUIRING DECISION, PARTICULARLY WHERE THE ISSUE IS ONE OF SOME CONSEQUENCE.
9.2
REMEDIES IN EVENT OF DEFAULT.
NEITHER PARTY SHALL BE ENTITLED TO
EXERCISE ANY REMEDY OTHERWISE AVAILABLE TO IT AT LAW OR IN EQUITY UNLESS AND
UNTIL SUCH PARTY SHALL HAVE PROVIDED THE OTHER PARTY WITH NOTICE OF SUCH EVENT
OF DEFAULT, REASONABLY SPECIFYING THE NATURE OF THE DEFAULT, AND ANY APPLICABLE
PERIOD OF TIME FOR CURE THEREOF SHALL HAVE EXPIRED WITHOUT CURE, AND THE
PROCEDURES DEFINED IN ARTICLE 13 OF THE AGREEMENT SHALL HAVE BEEN FIRST
EXHAUSTED.
9.3
SURVIVAL.
UPON A TERMINATION OF THIS ESAS 2 ADDENDUM, THE FOLLOWING
PROVISIONS OF THIS ESAS 2 ADDENDUM SHALL SURVIVE