LABOR RATE EXCEEDED, OR FELL SHORT OF, THE AGREED FTE
LABOR RATE REFLECTED IN THE BUDGET FOR SUCH CALENDAR YEAR, EITHER PARTY MAY SEEK
A REQUEST FOR MODIFICATION OF THE ESAS 2 DEVELOPMENT PROGRAM TO REFLECT SUCH
ACTUAL COSTS.
ACCEPTANCE OF SUCH REQUEST FOR MODIFICATION SHALL BE GOVERNED BY
SECTION 3.3.4.
NOTWITHSTANDING THE FOREGOING, THROUGHOUT THE TERM OF THIS ESAS
2 ADDENDUM, IN THE EVENT EITHER PARTY REQUESTS A MODIFICATION TO THE FTE LABOR
RATE HEREUNDER, THE MODIFIED FTE LABOR RATE SHALL BE CALCULATED USING THE SAME
METHODOLOGY AS THAT USED TO CALCULATE THE FTE LABOR RATE IN EFFECT AS OF THE
ADDENDUM EFFECTIVE DATE.
THE METHODOLOGY USED TO CALCULATE THE FTE LABOR RATE
IN EFFECT AS OF THE ADDENDUM EFFECTIVE DATE IS DESCRIBED ON THE ATTACHED
SCHEDULE 5.2.1B, ENTITLED "FTE LABOR RATE ANALYSIS".
5.2.2
COMPARISON WITH RESOURCE PLAN.
THE PLANNED
RESOURCES, AND THE ASSOCIATED COSTS, WILL BE BROKEN OUT ON A MONTHLY BASIS AND
ANALYZED AGAINST THE RESOURCE PLAN INCLUDED WITHIN THE TECHNICAL PLAN, AND
REFLECTED IN THE BUDGET.
5.3
PAYMENT OF ESAS 2 DEVELOPMENT COSTS.
IN ADDITION TO THE PROVISIONS
OF ARTICLE 7 OF THE AGREEMENT, THE PARTIES AGREE AS FOLLOWS:
5.3.1
ACCRUED ESAS 2 DEVELOPMENT COSTS.
EACH PARTY HAS
ALREADY INCURRED, PRIOR TO THE DATE OF EXECUTION OF THIS ESAS 2 ADDENDUM,
CERTAIN ESAS 2 DEVELOPMENT COSTS.
[***] SHALL REIMBURSE [***] FOR ITS ESAS 2
DEVELOPMENT COSTS INCURRED PRIOR TO AND UNTIL THE DATE OF EXECUTION OF THIS ESAS
2 ADDENDUM.
ATTACHED TO THIS ESAS 2 ADDENDUM AS SCHEDULE 5.3.1 IS A SUMMARY OF
THE ESAS 2 DEVELOPMENT COSTS INCURRED BY THE PARTIES PRIOR TO THE EXECUTION OF
THIS ESAS 2 ADDENDUM.
5.3.2
MONTHLY NOTICES; PAYMENTS.
AT THE END OF EACH
MONTH, EACH PARTY SHALL CALCULATE ITS ACTUAL EXPENDITURES AND FTE LABOR AMOUNTS
FOR ESAS 2 DEVELOPMENT COSTS IT INCURRED DURING SUCH MONTH AND SHALL PROMPTLY
PROVIDE TO THE OTHER PARTY A REASONABLY DETAILED WRITTEN BREAKDOWN OF SUCH
COSTS.
[***] SHALL INVOICE [***] FOR THE AMOUNT OF SUCH COSTS INCURRED BY [***]
DURING SUCH MONTH UNDER SECTION 5.3.3 BELOW.
5.3.3
INVOICES.
[***] WILL INVOICE [***] FOR THE AMOUNTS
DESCRIBED IN THIS SECTION 5.3 AND ALL INVOICES WILL BE DUE AND PAYABLE THIRTY
(30) DAYS FROM THE DATE OF THE INVOICE.
IN THE EVENT PAYMENT IS NOT RECEIVED
WITHIN SUCH PERIOD, CHIRON SHALL PAY A SERVICE CHARGE EQUAL TO THE AMOUNT
13
OVERDUE MULTIPLIED BY THE LIBOR IN EFFECT ON THE FIRST DAY OF SUCH CALENDAR
MONTH, BUT NOT EXCEEDING THE MAXIMUM ALLOWABLE RATE.
5.4
REIMBURSEMENT OF ESAS 2 DEVELOPMENT COSTS.
CHIRON WILL BE ENTITLED
TO REIMBURSEMENT, IF AT ALL, OF ESAS 2 DEVELOPMENT COSTS SOLELY FROM REVENUES
FROM THE ESAS 2 INSTRUMENT, AS MORE PARTICULARLY DESCRIBED IN SECTION 3.3.6 OF
THE AGREEMENT AS AMENDED BY SECTION 6.3 OF THIS ADDENDUM.
6.
MANUFACTURING AND COMMERCIALIZATION.
6.1
ESAS 2 INSTRUMENT MANUFACTURING COSTS.
6.1.1
THE "FULLY-BURDENED MANUFACTURING COSTS" OF THE
ESAS 2 INSTRUMENT FOR PURPOSES OF THIS ESAS 2 ADDENDUM (INCLUDING REVISED
SECTION 3.3.6 OF THE AGREEMENT) SHALL MEAN