AFFILIATES, THAT ARE DEEMED
NECESSARY BY SUCH ACCOUNTANT TO REPORT ON DEVELOPMENT COSTS FOR THE PERIOD OR
PERIODS REQUESTED BY ROCHE 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 ROCHE, SUCH AUDIT SHALL BE CONDUCTED, DURING REGULAR
BUSINESS HOURS IN SUCH A MANNER AS TO NOT UNNECESSARILY INTERFERE WITH SYNTA'S
OR ITS AFFILIATES' 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.
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.
16
(D)
ALL INFORMATION, DATA AND DOCUMENTS HEREIN REFERRED TO
SHALL BE USED ONLY FOR THE PURPOSE OF VERIFYING DEVELOPMENT COSTS, SHALL BE
TREATED AS SYNTA 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.
(F)
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 PAYMENT PAYABLE TO SYNTA HEREUNDER.
SYNTA SHALL PAY FOR THE
AUDIT COSTS IF THE AUDIT REVEALS THAT AN OVERPAYMENT OF ROCHE EXCEEDS [***]
PERCENT ([***]%).
(G)
THE FAILURE OF ROCHE TO REQUEST VERIFICATION OF ANY ACTUAL
COSTS WITHIN THE PERIOD DURING WHICH THE CORRESPONDING RECORDS MUST BE
MAINTAINED UNDER SECTION 2.5.2(D) WILL BE DEEMED ACCEPTANCE OF THE ACTUAL COST
PAYMENTS AND REPORTS WITH RESPECT THERETO.
2.5.3.
BUDGET.
IT IS AGREED BETWEEN THE PARTIES THAT FOR THE CALENDAR
YEAR 2009, THE BUDGET FOR PAYMENT TO SYNTA OF ITS DEVELOPMENT COSTS UNDER THE
DEVELOPMENT PLAN AS OF THE EXECUTION DATE IS [***] DOLLARS ($[***]).
ON OR
BEFORE OCTOBER 1, 2009 AND NOT LATER THAN OCTOBER 1 OF EACH SUBSEQUENT CALENDAR
YEAR DURING THE TERM, THE JSC SHALL APPROVE ANNUAL BUDGETS FOR DEVELOPMENT COSTS
SCHEDULED FOR THE FOLLOWING YEAR; SUCH ANNUAL BUDGETS TO BE CONSISTENT WITH THE
DEVELOPMENT PLAN(S).
UPON APPROVAL, THE ANNUAL BUDGET SHALL BE THE BUDGET THEN
IN EFFECT.
2.5.4.
PAYMENTS TO SYNTA; RECONCILIATION.
ROCHE SHALL PAY TO SYNTA THE
AMOUNT SET FORTH AS SYNTA'S DEVELOPMENT COSTS UNDER THE