ROCHE SHALL REIMBURSE SYNTA FOR ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS'
FEES AND LEGAL EXPENSES, INCURRED IN THE COLLECTION OF LATE PAYMENTS,
PROVIDED THAT THE FOREGOING SHALL NOT APPLY WITH RESPECT TO PAYMENTS DISPUTED IN
GOOD FAITH BY ROCHE UNLESS SYNTA IS SUCCESSFUL IN SUCH DISPUTE OR ROCHE CEASES
TO DISPUTE SUCH PAYMENTS.
7.7.3.
METHOD OF PAYMENT.
ROYALTIES ON NET SALES AND ALL
OTHER AMOUNTS PAYABLE BY ROCHE HEREUNDER SHALL BE PAID BY OR ON BEHALF OF ROCHE
IN U.S. DOLLARS.
ALL PAYMENTS DUE TO SYNTA HEREUNDER SHALL BE MADE DIRECTLY
FROM AN ACCOUNT LOCATED IN EITHER (AT ROCHE'S OPTION) THE UNITED STATES OR
SWITZERLAND TO ACCOUNT(S) DESIGNATED BY SYNTA.
7.7.4.
CURRENCY CONVERSION.
WHENEVER CALCULATING ROYALTIES
REQUIRES CONVERSION FROM ANY CURRENCY, ROCHE SHALL MAKE SUCH CONVERSION AS
FOLLOWS:
(A)
WHEN CALCULATING
THE NET SALES FOR COUNTRIES OTHER THAN THE UNITED STATES, ROCHE SHALL CONVERT
THE AMOUNT OF SUCH SALES IN CURRENCIES OTHER THAN SWISS FRANCS INTO SWISS FRANCS
USING ROCHE'S THEN CURRENT STANDARD PRACTICES ACTUALLY USED ON A CONSISTENT
BASIS IN PREPARING ITS AUDITED FINANCIAL STATEMENTS.
(B)
UPON CONVERTING THE
AMOUNT OF ADJUSTED GROSS SALES INTO SWISS FRANCS, ROCHE SHALL CONVERT INTO US
DOLLARS (OR OTHER CURRENCY), USING THE QUARTERLY AVERAGE RATE (CURRENTLY
REUTERS) AT THE LAST WORKING DAY FOR THE APPLICABLE PERIOD.
7.7.5.
REPORTING.
WITH EACH PAYMENT ROCHE SHALL PROVIDE
SYNTA IN WRITING FOR THE RELEVANT CALENDAR QUARTER ON A LICENSED
PRODUCT-BY-LICENSED PRODUCT BASIS THE FOLLOWING INFORMATION WITH RESPECT TO EACH
OF THE FOLLOWING TERRITORIES:
(1) THE UNITED STATES, (2) THE MAJOR MARKETS
(OTHER THAN THE UNITED STATES) AND CANADA, AND (3) ALL TERRITORIES OTHER THAN
THOSE SET FORTH IN THE FOREGOING CLAUSE (1) AND (2):
(A)
NET SALES AND
ADJUSTED GROSS SALES;
(B)
ADJUSTMENTS MADE
PURSUANT TO SECTION 7.6; AND
(C)
TOTAL ROYALTY
PAYABLE TO SYNTA.
The report for the fourth Calendar Quarter shall include a list of all countries
in which a Licensed Product is sold in the Territory for the applicable calendar
year.
7.7.6.
UNITED STATES DOLLARS.
ALL DOLLAR ($) AMOUNTS
SPECIFIED IN THIS AGREEMENT ARE UNITED STATES DOLLAR AMOUNTS.
7.7.7.
NONREFUNDABLE.
ALL PAYMENTS MADE BY ROCHE TO SYNTA
UNDER THIS AGREEMENT SHALL BE NON-REFUNDABLE AND NON-CREDITABLE, EXCEPT AS
EXPRESSLY SET FORTH IN SECTIONS 2.5.2(F), 2.5.4 AND 7.9.2.
7.8.
TAXES.
ANY TAX REQUIRED TO BE WITHHELD BY
ROCHE UNDER THE LAWS OF ANY COUNTRY FOR THE ACCOUNT OF SYNTA SHALL BE PROMPTLY
PAID BY ROCHE FOR AND ON BEHALF OF
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended.
36
SYNTA TO THE APPROPRIATE GOVERNMENT AUTHORITY, AND ROCHE SHALL FURNISH SYNTA
WITH PROOF OF PAYMENT OF SUCH TAX.
ANY SUCH TAX ACTUALLY PAID ON SYNTA'S BEHALF
SHALL BE DEDUCTED FROM ROYALTY PAYMENTS DUE TO SYNTA HEREUNDER.
ROCHE SHALL
ASSIST SYNTA IN MINIMIZING THE WITHHOLDING TAXES APPLICABLE TO ANY PAYMENT MADE
BY ROCHE AND IN CLAIMING TAX REFUNDS