THE AMOUNTS TO THE PROPER AUTHORITY(IES), AND (III) SEND PROOF OF
PAYMENT TO NEOPHARM AND CERTIFY ITS RECEIPT BY THE PROPER AUTHORITY(IES) WITHIN
SIXTY (60) DAYS FOLLOWING THAT PAYMENT.
NK SHALL USE ITS REASONABLE BEST
EFFORTS TO ENSURE THAT NEOPHARM IS CREDITED, AND CAN USE SAID CREDIT, FOR ANY
AMOUNTS PAID OR WITHHELD BY NK ON BEHALF OF NEOPHARM.
4.5 CURRENCY OF PAYMENT.
ALL PAYMENTS TO BE MADE BY NK TO NEOPHARM HEREUNDER
SHALL BE MADE IN U.S. DOLLARS.
NET SALES SHALL BE FIRST DETERMINED IN JAPANESE
YEN AND SHALL BE CONVERTED QUARTERLY INTO AN AMOUNT IN U.S. DOLLARS BASED ON THE
EXCHANGE RATE OF THE YEN TO THE DOLLAR AS PUBLISHED BY THE WALL STREET JOURNAL,
ASIAN WALL STREET JOURNAL EDITION, ON THE DAY PRECEDING PAYMENT IN THE CASE OF
LICENSE FEES AND MILESTONE PAYMENTS, AND AS OF THE LAST DAY OF THE CALENDAR
QUARTER FOR WHICH ROYALTIES ARE BEING PAID.
ARTICLE 5
SUPPLY
5.1 PRE-CLINICAL AND CLINICAL SUPPLY.
NEOPHARM SHALL, FREE OF CHARGE, SUPPLY
IL13 (IF REQUESTED BY NK, IN THE FORM OF A PHARMACEUTICAL PREPARATION IN VIALS
AND WITH LABELS, WHICH LABELS SHALL BE FURNISHED BY NK TO NEOPHARM) TO NK FOR
NK'S PRE-CLINICAL, PHASE I STUDY AND PHASE II STUDY AS SET FORTH IN THE
DEVELOPMENT PLAN IN THE VIAL SIZES AND QUANTITIES SET FORTH IN THE DEVELOPMENT
PLAN.
NEOPHARM MAY ELECT TO CONTRACT WITH ANY QUALIFIED FDA APPROVED THIRD
PARTY FOR SUCH MANUFACTURE AND SUPPLY.
SUCH PHARMACEUTICAL PREPARATION TO BE
SUPPLIED TO NK SHALL HAVE THE SPECIFICATIONS STIPULATED BY NEOPHARM AND MEETING
THE STANDARD OF THE JAPANESE APPLICABLE REGULATIONS.
5.2 SUPPLY FOLLOWING APPROVAL; LIMITATION ON COST.
AFTER NK SHALL OBTAIN
GOVERNMENTAL APPROVAL FOR THE SALE OF PRODUCT, NEOPHARM SHALL, OR SHALL CAUSE
THE QUALIFIED FDA THIRD PARTY MANUFACTURER DESIGNATED BY NEOPHARM (THE "PRIMARY
MANUFACTURER") TO, SUPPLY PRODUCTS (IN THE FORM OF A FINISHED PHARMACEUTICAL
PREPARATION IN VIALS AND WITH LABELS, WHICH LABELS SHALL BE FURNISHED BY NK TO
NEOPHARM) TO NK AT A PRICE OF [*]; THE PRICE TO BE ADJUSTED [*]), IN ACCORDANCE
WITH THE TERMS SET FORTH IN THE SUPPLY AGREEMENT; PROVIDED, HOWEVER, THAT IF NK
HAS OBTAINED ADDITIONAL GOVERNMENTAL APPROVAL FOR THE SALE OF THE ADDITIONAL
PRODUCT THE FORMULATION OF WHICH IS DIFFERENT FROM SUCH PRODUCT, THE PRICE TO BE
CHARGED BY NEOPHARM PER VIAL FOR SUPPLYING SUCH ADDITIONAL PRODUCT SHALL BE AS
AGREED BY THE PARTIES AFTER GOOD FAITH NEGOTIATIONS, UNLESS OTHERWISE PROVIDED
FOR HEREIN.
PRIOR TO COMMERCIALIZATION OF PRODUCT AND THEREAFTER, NK WILL
SUBMIT TO NEOPHARM ROLLING FORECASTS OF ITS REQUIREMENTS FOR THE PRODUCTS
FOLLOWED BY FIRM ORDERS IN ACCORDANCE WITH THE TERMS SET FORTH IN THE SUPPLY
AGREEMENT AT SUCH TIMES AND FREQUENCIES AS THE PARTIES SHALL MUTUALLY AGREE
SHALL BE NECESSARY TO ENABLE NEOPHARM, OR ITS SUBCONTRACTOR, TO PLAN ITS
MANUFACTURING ACTIVITIES IN ORDER TO MAXIMIZE EFFICIENCY AND REDUCE COSTS AND
SUPPLY NK WITH ITS REASONABLE REQUIREMENTS
* Certain information on this page has been omitted and filed separately with
the Commission.
Confidential treatment has been requested