AND THE EXISTING LICENSE
AND SUPPLY AGREEMENT MAY PROVIDE RIGHTS AND OBLIGATIONS IN ADDITION TO THOSE SET
FORTH HEREIN, AND THE GRANT OR EXPIRATION OF RIGHTS UNDER THIS SECTION 2.1 SHALL
NOT BE DEEMED TO CHANGE, MODIFY, AMEND OR SUPERSEDE ANY SUCH OTHER RIGHTS OR
OBLIGATIONS.
(E)
RESERVATION. FOR PURPOSES OF CLARITY, NOTHING IN THIS SECTION 2.1
SHALL BE DEEMED TO LIMIT OR PREVENT CEPHALON OR ITS AFFILIATES OR THEIR
RESPECTIVE LICENSEES FROM DEVELOPING, MAKING, HAVING MADE, USING, SELLING,
OFFERING FOR SELLING, DISTRIBUTING OR HAVING DISTRIBUTED, PROMOTING OR
ADVERTISING, IMPORTING OR HAVING IMPORTED ACTIQ OR ACTIQ SF UNDER THE ACTIQ®
MARK.
3.
ROYALTIES
3.1
ROYALTY. BARR SHALL PAY CEPHALON A ROYALTY OF [**] ACTIQ LICENSED
PRODUCT SOLD BY BARR OR ITS AFFILIATES DURING THE EXCLUSIVITY PERIOD.
3.2
REPORTING. NOT LATER THAN [**], BARR SHALL DELIVER TO CEPHALON A
STATEMENT SETTING FORTH THE NET PROFITS GENERATED DURING THE EXCLUSIVITY PERIOD,
ITEMIZED IN SUCH MANNER AS MAY BE REASONABLY REQUESTED BY CEPHALON AND
CONTAINING SUCH SALES INFORMATION AS CEPHALON MAY REASONABLY REQUIRE.
3.3
PAYMENT. BARR SHALL PAY TO CEPHALON ALL ROYALTIES DUE HEREUNDER ON
OR BEFORE [**]. ALL PAYMENTS HEREUNDER SHALL BE MADE BY CHECK OR WIRE TRANSFER
TO SUCH BANK AND ACCOUNT AS CEPHALON MAY FROM TIME TO TIME DESIGNATE IN WRITING.
ALL PAYMENTS SHALL BE MADE IN U.S. DOLLARS. ALL PAYMENTS DUE HEREUNDER BUT NOT
PAID ON THE DUE DATE SHALL BEAR INTEREST (IN U.S. DOLLARS) AT THE RATE WHICH IS
THE LESSER OF: (A) [**]; AND (B) THE MAXIMUM LAWFUL INTEREST RATE PERMITTED
UNDER APPLICABLE LAW. NO PART OF ANY AMOUNT PAYABLE TO CEPHALON HEREUNDER MAY BE
REDUCED DUE TO ANY COUNTERCLAIM, SET-OFF, ADJUSTMENT OR OTHER RIGHT WHICH BARR
MIGHT HAVE AGAINST CEPHALON OR ANY OF ITS AFFILIATES.
3.4
ANNUAL TRUE-UP. WITHIN [**] AFTER THE END OF EACH CALENDAR YEAR
DURING THE TERM, BARR SHALL PERFORM A "TRUE UP" RECONCILIATION (AND SHALL
PROVIDE CEPHALON WITH A WRITTEN REPORT OF SUCH RECONCILIATION) OF THE DEDUCTIONS
SPECIFIED IN SECTION 1.9 (A), (B) (EXCLUDING RETURNS), (C), (D), (E) AND (F).
THE RECONCILIATION SHALL BE BASED ON ACTUAL CASH PAID OR CREDITS
**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.
5
issued and estimates related to the reported invoiced sales, but not yet issued
for such items. 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.
3.5
FINAL RETURNS TRUE-UP. WITHIN [**] OF THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT, BARR SHALL PERFORM A "TRUE-UP" RECONCILIATION (AND
SHALL PROVIDE CEPHALON WITH A WRITTEN REPORT OF SUCH RECONCILIATION) OF THE
DEDUCTIONS FOR RETURNS SPECIFIED IN SECTION 1.9 (B). THE RECONCILIATION SHALL BE
BASED ON ACTUAL CASH PAID OR CREDITS ISSUED FOR