ANY INFORMATION RECEIVED AS A RESULT OF
SUCH INSPECTION SHALL BE MAINTAINED AS THE AUDITED PARTY'S CONFIDENTIAL
INFORMATION.
4.4.7.
UNDERPAYMENT/OVERPAYMENT AND PAYMENT DISPUTES.
IN THE EVENT AN
EXAMINING AUDITOR SPECIFIED IN SECTION 4.4.6 CONCLUDES THAT AN UNDERPAYMENT OR
OVERPAYMENT WAS MADE, THE AUDITOR WILL SPECIFY SUCH IN A WRITTEN REPORT ALONG
WITH THE INFORMATION ON WHICH SUCH CONCLUSION IS BASED.
THIS REPORT WILL BE
SHARED PROMPTLY WITH THE AUDITED PARTY.
THE AMOUNT OF ANY SUCH UNDERPAYMENT OR
THE REIMBURSEMENT OF ANY SUCH OVERPAYMENT SHALL BE DUE AND PAYABLE BY THE
AUDITED PARTY WITHIN [**] DAYS OF THE DATE OF SUCH REPORT, TOGETHER WITH
INTEREST CALCULATED ON THE AMOUNT OF SUCH UNDERPAYMENT OR OVERPAYMENT IN THE
MANNER PROVIDED IN SECTION 4.4.4; PROVIDED THAT IF A PARTY DISPUTES THE
CONCLUSION OF THE AUDITOR, THE PARTIES WILL RESOLVE THE DISPUTE ACCORDING TO
ARTICLE 13.
IF THE UNDERPAYMENT BY THE AUDITED PARTY OR THE OVERPAYMENT BY THE
AUDITING PARTY DIFFERS BY GREATER THAN FIVE PERCENT (5%) FROM THE AMOUNT THAT
WAS OTHERWISE DUE, THE AUDITED PARTY SHALL PAY ALL OF THE COSTS OF SUCH REVIEW.
5.
JOINT DEVELOPMENT AND COMMERCIALIZATION
5.1.
JOINT COLLABORATION.
SANDOZ AND MOMENTA SHALL JOINTLY COLLABORATE
IN THE DEVELOPMENT AND COMMERCIALIZATION OF THE PRODUCTS AND THE LEGAL
ACTIVITIES WITH RESPECT THERETO, USING COMMERCIALLY REASONABLE EFFORTS TO
DEVELOP THE PRODUCTS, TO ACHIEVE LEGAL CLEARANCE, TO BRING THE PRODUCTS TO THE
MARKET IN THE RELEVANT TERRITORIES WITHIN A COMMERCIALLY REASONABLE TIME PERIOD
(SUBJECT TO THE PROVISIONS OF SECTION 6.2) AND TO COMMERCIALIZE THE PRODUCTS IN
THE RELEVANT TERRITORY AND TO USE COMMERCIALLY REASONABLE EFFORTS TO MAXIMIZE
THE PROFITS FOR EACH SUCH PRODUCT THROUGHOUT THE RELEVANT TERRITORY.
THE GOAL
OF THE COLLABORATIVE PROGRAM IS TO DEVELOP, REGISTER AND COMMERCIALIZE THE
PRODUCTS AS FOLLOWS:
(A) THE COLLABORATION PRODUCTS AS FULLY-SUBSTITUTABLE, AND
(B) THE GLYCOPROTEIN PRODUCTS, WITH THE GOAL OF ACHIEVING FULL-SUBSTITUTABILITY,
OR AS A NON-SUBSTITUTABLE PRODUCT IF APPROPRIATE, AT THE DISCRETION OF SANDOZ,
SUBJECT TO SECTION 5.2.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
FINAL DECISION ON DEVELOPMENT, REGULATORY, LEGAL AND COMMERCIALIZATION STRATEGY
SHALL RESIDE WITH SANDOZ FOR THE GLYCOPROTEIN PRODUCTS, SUBJECT TO SECTION 5.2.
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5.2.
SANDOZ FINAL-DECISION MAKING AUTHORITY.
WITH RESPECT TO ANY
MATTER FOR WHICH SANDOZ HAS FINAL DECISION-MAKING AUTHORITY UNDER THE AGREEMENT
AND FOR WHICH THERE IS A DISAGREEMENT, THE FOLLOWING PROVISIONS SHALL APPLY:
THE RELEVANT MATTER SHALL BE IDENTIFIED TO, AND DISCUSSED BY, THE JOC.
THE JOC
SHALL IN GOOD FAITH ATTEMPT TO RESOLVE THE MATTER.
IF THE JOC IS UNABLE TO
DECIDE OR RESOLVE SUCH MATTER, THEN SANDOZ SHALL HAVE THE DECIDING VOTE WITH
RESPECT TO SUCH DISPUTE; PROVIDED, HOWEVER, THAT SANDOZ SHALL CONSULT WITH, AND
GIVE DUE CONSIDERATION TO, MOMENTA'S INPUT WITH RESPECT THERETO; AND FURTHER
PROVIDED, HOWEVER, THAT WITH RESPECT TO PRE FINAL LEGAL CLEARANCE LAUNCH, THE
JSC SHALL BE SUBSTITUTED FOR THE JOC IN THE PRIOR PORTIONS OF THIS SECTION 5.2.
IN NO EVENT MAY SANDOZ EXERCISE ITS FINAL-DECISION-MAKING AUTHORITY UNDER THIS
AGREEMENT TO (A) OBLIGATE MOMENTA TO SPEND MONEY OR DEVOTE RESOURCES OUTSIDE
THOSE