RETURNS, THROUGH THE [**] PERIOD
FOLLOWING THE TERMINATION OR EXPIRATION. IF THE FOREGOING RECONCILIATION REPORT
SHOWS EITHER AN UNDERPAYMENT OR AN OVERPAYMENT TO BARR, THEN CEPHALON OR BARR
(RESPECTIVELY) SHALL PAY THE AMOUNT OF THE DIFFERENCE TO THE OTHER WITHIN [**]
OF THE DATE OF DELIVERY OF SUCH REPORT.
3.6
RIGHT TO AUDIT. BARR AGREES TO MAKE AND KEEP FULL AND ACCURATE
BOOKS AND RECORDS IN SUFFICIENT DETAIL TO ENABLE ROYALTIES PAYABLE TO CEPHALON
HEREUNDER TO BE DETERMINED. CEPHALON SHALL HAVE THE RIGHT TO APPOINT AN
INDEPENDENT ACCOUNTING FIRM, REASONABLY ACCEPTABLE TO BARR ("INDEPENDENT
AUDITOR"), TO MAKE A SPECIAL AUDIT OF THE BOOKS AND RECORDS OF BARR THAT PERTAIN
TO [**]. THE INDEPENDENT AUDITOR SHALL TREAT AS CONFIDENTIAL ALL INFORMATION
OBTAINED IN SUCH AUDIT AND SHALL NOT DISCLOSE THE SAME TO CEPHALON OR OTHERS,
EXCEPT THAT THE INDEPENDENT AUDITOR MAY DISCLOSE TO CEPHALON SUCH INFORMATION AS
MAY PERTAIN TO [**]. UPON TEN (10) DAYS PRIOR WRITTEN NOTICE TO BARR, THE
INDEPENDENT AUDITOR SHALL HAVE FULL ACCESS TO THE BOOKS AND RECORDS OF BARR
NECESSARY [**]. [**]. IF IT IS DETERMINED FOLLOWING SUCH AUDIT THAT [**], THEN
[**].
4.
OTHER PROVISIONS
4.1
THE FOLLOWING PROVISIONS OF THE EXISTING LICENSE AND SUPPLY
AGREEMENT SHALL BE DEEMED TO BE INCORPORATED HEREIN, BUT ONLY TO THE EXTENT THAT
SUCH PROVISIONS APPLY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT:
(A)
SECTION 4.1(A) (EXCEPT THAT, FOR PURPOSES OF THIS AGREEMENT, SUCH
PROVISION SHALL APPLY WITH RESPECT TO INFRINGEMENT OF ANY ACTIQ PATENT RIGHTS OR
ACTIQ SF PATENT RIGHTS TO WHICH BARR HAS AN EFFECTIVE LICENSE UNDER THIS
AGREEMENT);
(B)
SECTION 5.1 (EXCEPT THAT, FOR PURPOSES OF THIS AGREEMENT, THE
REFERENCE TO "LICENSE EFFECTIVE DATES" SHALL BE DEEMED TO REFER TO THE FIRST DAY
OF THE EXCLUSIVITY PERIOD, AND EXCLUDING SUBSECTION (III) OF SECTION 5.1);
(C)
SECTION 6.1 (EXCEPT THAT, FOR PURPOSES OF THIS AGREEMENT, (I) EACH
REFERENCE TO "30 DAYS PRIOR TO" IN THE FIRST PARAGRAPH OF SECTION 6.1 SHALL BE
DEEMED TO REFER TO 30 DAYS PRIOR TO THE START OF THE EXCLUSIVITY PERIOD, (II)
BARR'S RIGHTS UNDER SUCH PROVISION SHALL EXPIRE AS OF THE EXPIRATION OF THE
EXCLUSIVITY PERIOD, (III) THE FORECASTS FROM BARR REFERENCED IN SECTION 6.1(E)
SHALL BE DUE STARTING [**] PRIOR TO THE START OF THE EXCLUSIVITY PERIOD, (IV)
CROSS-REFERENCES SHALL BE DEEMED TO REFER TO THE CORRESPONDING PROVISIONS OF
THIS AGREEMENT TO THE EXTENT INCLUDED
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
6
or incorporated herein; and (v) the quality agreement described in Section
6.1(n) shall be negotiated and agreed at least [**] prior to the start of the
Exclusivity Period);
(D)
SECTIONS 6.2 THROUGH 6.4;
(E)
SECTION 7.2;
(F)
SECTION 8.1
(G)
SECTION 8.2 (EXCEPT THAT, FOR PURPOSES OF THIS AGREEMENT, (I) THE
REFERENCE TO "SECTION 2.1" AND "SECTION 2.2" SHALL BE DEEMED