COVENANTS AND AGREES THAT AT ALL TIMES AFTER THE FIRST CLOSING IT WILL EXERCISE
COMMERCIALLY REASONABLE BEST EFFORTS TO PROMPTLY AND DILIGENTLY DEVELOP SANSROSA
ROSACEA PRODUCTS, TO PROMPTLY AND DILIGENTLY PURSUE ALL PERMITS AND REGULATIONS
OF SANSROSA ROSACEA PRODUCTS, TO PROVIDE TO THE FDA SUCH INFORMATION AND/OR
STUDIES REGARDING THE PRODUCTS AS THE FDA MAY REASONABLY REQUEST, AND TO ACHIEVE
IN A PROMPT FASHION ALL OF THE MILESTONES ON WHICH THE SUBSEQUENT CLOSINGS ARE
CONTINGENT, PROVIDED, HOWEVER, THAT ANY DECISIONS RELATED TO WHETHER OR NOT AT
ANY TIME IT IS COMMERCIALLY REASONABLE TO CONTINUE TO INVEST TIME AND MONEY IN
SEEKING TO DEVELOP A SANSROSA ROSACEA PRODUCT OR TO OBTAIN A PATENT THAT ARISES
AND ISSUES OUT OF THE PATENT APPLICATIONS SHALL BE REVIEWED AND RATIFIED NO LESS
OFTEN THAN TWICE A YEAR IN GOOD FAITH BY THE BOARD OF DIRECTORS OF COLLAGENEX IN
ACCORDANCE WITH ITS BUSINESS JUDGMENT AND AFTER CONSULTATION WITH THE JOINT
DEVELOPMENT COMMITTEE.
COLLAGENEX SHALL PERMIT THE JOINT DEVELOPMENT COMMITTEE
TO ASSIST COLLAGENEX IN COMPLYING WITH ANY REQUEST OF FDA, PROVIDED, HOWEVER,
THAT NOTHING IN THIS PARAGRAPH SHALL IMPLY THAT ANY MEMBER OF THE JOINT
DEVELOPMENT COMMITTEE HAS ANY RIGHT TO APPROVE, DISAPPROVE OR OTHERWISE REQUIRE
OR VETO ANY PARTICULAR COURSE OF ACTION PROPOSED ON THE PART OF COLLAGENEX.
(H)
PROMOTION.
COLLAGENEX ALSO AGREES THAT,
FROM AND AFTER THE DATE THAT THE FDA ISSUES FINAL REGULATORY APPROVAL OF A
SANSROSA ROSACEA PRODUCT, AND FOR AS LONG AS THE SANSROSA ROSACEA PRODUCT IS
COMMERCIALLY VIABLE, COLLAGENEX SHALL USE ITS COMMERCIALLY REASONABLE BEST
EFFORTS TO PROMOTE, MANUFACTURE AND MARKET THE SANSROSA ROSACEA PRODUCT,
INCLUDING MAINTAINING IN GOOD STANDING ALL LICENSES, REGISTRATIONS AND PERMITS
FOR THE SANSROSA ROSACEA PRODUCT, AND PURSUING, MAINTAINING, PROTECTING,
SAFEGUARDING, AND DEFENDING FROM CHALLENGE AND INFRINGEMENT, ALL RIGHTS IN AND
TO THE INTELLECTUAL PROPERTY AND ALL FUTURE INTELLECTUAL PROPERTY RELATING TO
THE SANSROSA ROSACEA PRODUCT.
ADDITIONALLY, COLLAGENEX WILL CAUSE THE SANSROSA
PRODUCT TO BE MANUFACTURED IN ACCORDANCE WITH GOOD MANUFACTURING PRACTICES AS
PROMULGATED FROM TIME TO TIME BY THE FDA AND IN ACCORDANCE WITH OTHER APPLICABLE
INDUSTRY AND REGULATORY STANDARDS, AND
22
WILL COMPLY WITH ALL APPLICABLE REGULATIONS RELATING TO THE DEVELOPMENT,
MANUFACTURE, PROMOTION, MARKETING AND SALE OF THE SANSROSA PRODUCT.
(I)
FAILURE OF GOOD FAITH EFFORTS.
IN THE
EVENT THAT AT ANY TIME COLLAGENEX IS NOT EXERCISING COMMERCIALLY REASONABLE BEST
EFFORTS TO ACHIEVE THE MILESTONES RELATED TO THE PURCHASE OF SHARES OR ANY OTHER
MATTERS SPECIFIED IN PARAGRAPH 8(G) ABOVE, THE SHAREHOLDERS WILL HAVE THE RIGHT
TO WAIVE ALL OTHER RIGHTS TO RECEIVE CONSIDERATION UNDER THIS AGREEMENT AND TO
REPURCHASE ALL, BUT NOT LESS THAN ALL, OF THOSE SHARES ALREADY PURCHASED BY
COLLAGENEX, FOR A PRICE EQUAL TO ONE FIFTH OF THE PURCHASE PRICE PAID BY
COLLAGENEX UP TO THE DATE OF THE REPURCHASE.
IF AT SUCH TIME THE PATENT
APPLICATIONS OR ANY RIGHTS ARISING OUT OF THEM ARE OWNED BY COLLAGENEX, THEN
COLLAGENEX SHALL, IMMEDIATELY UPON RECEIPT OF THE REPURCHASE CONSIDERATION,
GRANT TO SANSROSA, OR ANOTHER ENTITY THAT THE SHAREHOLDERS MAY STIPULATE,