with respect to the
omitted portion.
14
FOR PRODUCT.
THE PRICE CHARGED TO NK FOR PRODUCTS BY NEOPHARM SHALL BE ON A
DELIVERED DUTY UNPAID NARITA AIRPORT, JAPAN BASIS (DDU: INCOTERMS 2000).
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL THE
PRICE CHARGED TO NK FOR PRODUCTS BY NEOPHARM, WHEN ADDED TO THE ROYALTY (OR THE
SUM OF THE ROYALTY AND THE ROYALTY OR OTHER PAYMENTS PAID BY NK TO THE THIRD
PARTY SET FORTH IN SECTION 8.4(D), IF APPLICABLE), EXCEED [*] PERCENT [*]% OF
NK'S NET SALES.
SHIPMENT OF PRODUCTS FROM NEOPHARM TO NK SHALL BE MADE ON A
DELIVERED DUTY UNPAID NARITA AIRPORT, JAPAN BASIS (DDU: INCOTERMS 2000) BY
NEOPHARM.
NEOPHARM SHALL, OR SHALL CAUSE THE PRIMARY MANUFACTURER AND THE
BACK-UP MANUFACTURER (AS DEFINED IN SECTION 5.6) TO, MANUFACTURE AND SUPPLY THE
PRODUCTS IN ACCORDANCE WITH (I) THE SPECIFICATIONS, (II) THE APPLICABLE
GOVERNMENTAL APPROVALS, AS MAY BE AMENDED FROM TIME TO TIME, (III) CGMP
REQUIREMENTS AND (IV) ALL OTHER APPLICABLE LAWS.
WITH RESPECT TO SPECIFICATIONS
FOR OR CONCERNING THE QUALITY, MANUFACTURING AND TESTING OF PRODUCT, NK WILL
ENDEAVOR TO DEVELOP PRODUCT MEETING SPECIFICATIONS SET FORTH IN THE GOVERNMENTAL
APPROVALS IN THE UNITED STATES FOR THE PRODUCT.
5.3 PAYMENTS.
NK SHALL PAY ALL AMOUNTS OWING TO NEOPHARM FOR SUPPLY OF PRODUCTS
WITHIN FORTY-FIVE (45) DAYS FROM RECEIPT OF THE PRODUCTS AND THE ACCOMPANYING
INVOICE.
5.4 NO MANUFACTURING BY NK.
THE SUBLICENSE AND LICENSE GRANTED TO NK BY
NEOPHARM UNDER THIS AGREEMENT SHALL NOT INCLUDE OR BE DEEMED OR CONSIDERED TO
INCLUDE ANY RIGHT TO MANUFACTURE OR CONTRACT WITH ANY ENTITY OTHER THAN NEOPHARM
FOR THE MANUFACTURE OF IL13 AND/OR ANY PRODUCT; PROVIDED, HOWEVER, THAT IN THE
EVENT NEOPHARM, FOR ANY REASON, OTHER THAN A FORCE MAJEURE EVENT, IS UNABLE TO
SUPPLY AT LEAST [*] PERCENT [*]% OF NK'S TOTAL ORDER REQUIREMENT OF THE PRODUCTS
FOR A PERIOD OF [*] CONSECUTIVE MONTHS OR [*] PERCENT [*]% OF NK'S TOTAL ORDER
REQUIREMENTS OF THE PRODUCTS FOR A PERIOD OF [*], NK SHALL HAVE THE RIGHT TO
PLACE ITS ORDERS FOR PRODUCT DIRECTLY WITH THE PRIMARY MANUFACTURER OR, IF THE
PRIMARY MANUFACTURER SHALL BE UNABLE OR UNWILLING TO SUPPLY NK WITH PRODUCT, NK
MAY PLACE ORDERS WITH ANY BACK-UP MANUFACTURER (AS HEREINAFTER DEFINED) IN ORDER
TO FULFILL ITS REQUIREMENTS FOR PRODUCTS; PROVIDED, HOWEVER, THAT, UPON NEOPHARM
CERTIFYING TO NK THAT IT AGAIN HAS THE ABILITY TO SUPPLY NK'S REQUIREMENTS FOR
PRODUCTS, NK SHALL, WITHIN THREE (3) MONTHS OF RECEIPT OF SUCH NOTIFICATION,
AGAIN OBTAIN ITS REQUIREMENTS FOR PRODUCTS EXCLUSIVELY THROUGH NEOPHARM.
IF
NEOPHARM IS UNABLE TO SUPPLY THE ABOVE MENTIONED AMOUNT OF THE PRODUCT FOR THE
ABOVE MENTIONED PERIOD FOR THE REASON OF A FORCE MAJEURE EVENT, OTHER THAN A
FORCE MAJEURE EVENT RELATING TO THE PRIMARY MANUFACTURER AND THE BACK-UP
MANUFACTURER, NEOPHARM SHALL PROCURE THE PRODUCT FROM THE PRIMARY MANUFACTURER
OR THE BACK-UP MANUFACTURER AND SUPPLY IT TO NK IN THE AMOUNT NECESSARY TO AVOID
INTERRUPTION, DELAY OR FAILURE OF SALES OF THE PRODUCT BY NK IN