AT SYNTA'S REQUEST.
7.9.
AUDITING.
7.9.1.
AUDIT RIGHTS.
(A)
ROCHE SHALL KEEP,
AND SHALL REQUIRE ITS AFFILIATES AND SUBLICENSEES TO KEEP, FOR [***] ([***])
YEARS, FULL, TRUE AND ACCURATE BOOKS OF ACCOUNT CONTAINING ALL PARTICULARS THAT
MAY BE NECESSARY FOR THE PURPOSE OF CALCULATING ALL ROYALTIES AND ALL OTHER
AMOUNTS PAYABLE UNDER THIS AGREEMENT.
SUCH BOOKS OF ACCOUNTS SHALL BE KEPT AT
ROCHE'S OR THE RELEVANT AFFILIATE'S OR SUBLICENSEE'S PRINCIPAL PLACE OF
BUSINESS. AT THE EXPENSE OF SYNTA, SYNTA HAS THE RIGHT TO ENGAGE AN INDEPENDENT,
CERTIFIED PUBLIC ACCOUNTANT REASONABLY ACCEPTABLE TO BOTH PARTIES TO PERFORM, ON
BEHALF OF SYNTA, AN AUDIT OF SUCH BOOKS AND RECORDS OF ROCHE AND ITS AFFILIATES
AND SUBLICENSEES, THAT ARE DEEMED NECESSARY BY SUCH ACCOUNTANT TO REPORT ON NET
SALES OF LICENSED PRODUCTS FOR THE PERIOD OR PERIODS REQUESTED BY SYNTA AND THE
CORRECTNESS OF ANY REPORT OR PAYMENTS MADE UNDER THIS AGREEMENT.
SUCH
ACCOUNTANT SHALL NOT HAVE THE AUTHORITY TO INTERPRET THIS AGREEMENT.
(B)
UPON TIMELY REQUEST
AND AT LEAST [***] ([***]) DAYS PRIOR WRITTEN NOTICE FROM SYNTA, SUCH AUDIT
SHALL BE CONDUCTED IN THE COUNTRIES SPECIFICALLY REQUESTED BY SYNTA, DURING
REGULAR BUSINESS HOURS IN SUCH A MANNER AS TO NOT UNNECESSARILY INTERFERE WITH
ROCHE'S NORMAL BUSINESS ACTIVITIES, AND SHALL BE LIMITED TO RESULTS IN THE [***]
([***]) CALENDAR YEARS PRIOR TO AUDIT NOTIFICATION.
(C)
SUCH AUDIT SHALL
NOT BE PERFORMED MORE FREQUENTLY THAN ONCE PER CALENDAR YEAR NOR MORE FREQUENTLY
THAN ONCE WITH RESPECT TO RECORDS COVERING ANY SPECIFIC PERIOD OF TIME.
(D)
ALL INFORMATION,
DATA AND DOCUMENTS HEREIN REFERRED TO SHALL BE USED ONLY FOR THE PURPOSE OF
VERIFYING ROYALTY STATEMENTS, SHALL BE TREATED AS ROCHE CONFIDENTIAL INFORMATION
SUBJECT TO THE OBLIGATIONS OF THIS AGREEMENT AND NEED NEITHER BE RETAINED MORE
THAN THE LONGER OF ONE (1) YEAR AFTER COMPLETION OF AN AUDIT HEREOF, IF AN AUDIT
HAS BEEN REQUESTED; NOR MORE THAN [***] ([***]) YEARS FROM THE END OF THE
CALENDAR YEAR TO WHICH EACH SHALL PERTAIN; NOR MORE THAN [***] ([***])[***]
AFTER THE DATE OF TERMINATION OF THIS AGREEMENT.
(E)
THE FINAL AUDIT
REPORT SHALL BE SHARED BY ROCHE AND SYNTA.
7.9.2.
OVER- OR UNDERPAYMENT.
IF THE AUDIT REVEALS AN
UNDERPAYMENT, ROCHE SHALL REIMBURSE SYNTA FOR THE AMOUNT OF THE UNDERPAYMENT
WITHIN [***] ([***]) DAYS WITH INTEREST AS SET FORTH IN SECTION 7.7.2.
IF THE
AUDIT REVEALS AN OVERPAYMENT, ROCHE SHALL HAVE THE RIGHT TO CREDIT THE AMOUNT OF
SUCH OVERPAYMENT AGAINST THE NEXT ROYALTY PAYMENT PAYABLE TO
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.
37
SYNTA HEREUNDER.
ROCHE SHALL PAY FOR THE AUDIT COSTS IF THE AUDIT REVEALS THAT
AN UNDERPAYMENT OF ROCHE EXCEEDS [***] PERCENT ([***]%).
7.9.3.
DURATION OF AUDIT RIGHTS.
THE FAILURE OF SYNTA TO
REQUEST VERIFICATION OF ANY ROYALTY CALCULATION WITHIN THE PERIOD DURING WHICH
THE CORRESPONDING RECORDS MUST BE MAINTAINED UNDER SECTION 7.9.1