IMPOSED
WITH RESPECT TO ANY PAYMENT HEREUNDER, COMPANY SHALL PAY TO WISTAR AN ADDITIONAL
AMOUNT AS IS NECESSARY TO ENSURE THAT THE AMOUNT ACTUALLY RECEIVED BY WISTAR
WITH RESPECT TO SUCH PAYMENT, FREE AND CLEAR OF THE WITHHOLDING TAXES (INCLUDING
ANY SUCH WITHHOLDING TAXES IMPOSED ON SUCH ADDITIONAL AMOUNT), SHALL EQUAL THE
AMOUNT OF THE PAYMENT THAT WOULD HAVE BEEN MADE IF NO SUCH WITHHOLDING TAXES HAD
APPLIED.
3.10
RECORDS.
COMPANY SHALL KEEP, AND SHALL CAUSE ITS
AFFILIATES AND SUBLICENSEES TO KEEP, COMPLETE AND ACCURATE BOOKS AND RECORDS OF
ALL LICENSED PRODUCTS SOLD WHICH ENABLE THE ROYALTIES AND OTHER AMOUNTS PAYABLE
HEREUNDER TO BE VERIFIED.
UPON REASONABLE PRIOR NOTICE TO COMPANY, ITS
AFFILIATES OR ANY SUBLICENSEE AND DURING NORMAL BUSINESS HOURS, AN AUDITOR PAID
FOR AND SELECTED BY WISTAR MAY INSPECT SUCH BOOKS AND RECORDS OF COMPANY, ITS
AFFILIATES AND SUBLICENSEES FOR THE THREE (3) YEAR PERIOD IMMEDIATELY PRECEDING
THE DATE OF INSPECTION TO VERIFY THE CORRECTNESS OF THE REPORTS GIVEN TO WISTAR
UNDER SECTION 3.8.
IF WISTAR'S AUDITOR DETERMINES THAT COMPANY, ITS AFFILIATE
OR ANY SUBLICENSEE HAS UNDERPAID ROYALTIES AND OTHER AMOUNTS PAYABLE BY TEN
PERCENT (10%) OR MORE, COMPANY SHALL PAY THE COSTS AND EXPENSES OF THE AUDIT AND
THE RIGHT OF INSPECTION SHALL EXTEND TO BOOKS AND RECORDS FOR PERIODS PRIOR TO
SUCH THREE (3) YEAR PERIOD.
NOTHING CONTAINED IN THIS SECTION 3.10 SHALL
SHORTEN THE PERIOD ESTABLISHED BY ANY APPLICABLE STATUTE OF LIMITATIONS.
16
ARTICLE 4 - CERTAIN OBLIGATIONS OF COMPANY
4.1
DILIGENT EFFORTS.
COMPANY, ACTING ITSELF AND/OR
THROUGH ITS SUBLICENSEES, (I) SHALL USE BEST EFFORTS TO DEVELOP LICENSED
PRODUCTS AND TO BRING LICENSED PRODUCTS TO MARKET THROUGH A THOROUGH, VIGOROUS
AND DILIGENT PROGRAM FOR EXPLOITATION OF THE LICENSED PATENTS AND LICENSED
TECHNICAL INFORMATION AND TO CONTINUE ACTIVE, DILIGENT MARKETING EFFORTS FOR
LICENSED PRODUCTS THROUGHOUT THE TERM, CONSISTENT WITH SOUND AND REASONABLE
BUSINESS PRACTICES, AND (II) SHALL ENDEAVOR TO KEEP LICENSED PRODUCTS REASONABLY
AVAILABLE TO THE PUBLIC.
4.2
PERFORMANCE MILESTONES.
IN ADDITION TO COMPANY'S
DILIGENCE OBLIGATIONS IN SECTION 4.1, COMPANY, ACTING ITSELF AND/OR THROUGH ITS
SUBLICENSEES, SHALL PERFORM OR FULFILL THE FOLLOWING OBLIGATIONS (THE
"PERFORMANCE MILESTONE(S)") BY THE DATES SET FORTH BELOW (THE "PERFORMANCE
MILESTONE DATE(S)"):
4.2.1.
WITHIN FORTY-FIVE (45) DAYS AFTER THE EFFECTIVE DATE, COMPANY SHALL
FURNISH WISTAR WITH A WRITTEN RESEARCH AND DEVELOPMENT PLAN DESCRIBING THE MAJOR
TASKS TO BE ACHIEVED IN ORDER TO COMPLETE PRECLINICAL TESTING NECESSARY TO
SUPPORT CLINICAL TESTING OF LICENSED PRODUCTS, A TIMELINE FOR ACHIEVEMENT OF
SUCH TASKS, AND AN ESTIMATE OF THE NUMBER OF STAFF AND FINANCIAL AND OTHER
RESOURCES TO BE DEVOTED TO SUCH PRECLINICAL TESTING, WHICH FOR THE AVOIDANCE OF
DOUBT, IS THE COMPANY'S PRECLINICAL TESTING PLAN WITH THE H. LEE MOFFITT
CANCER
CENTER AND RESEARCH INSTITUTE, INC.("COMMERCIALIZATION PLAN");
4.2.2.
***;
4.2.3.
***;
4.2.4.
***; AND
4.2.5.
***.
4.3
DILIGENCE FAILURE.
***
4.4
DILIGENCE REPORTS.
4.4.1.
COMPANY SHALL PROVIDE WISTAR ON DECEMBER 1 OF EACH YEAR WITH WRITTEN
REPORTS, SETTING FORTH IN SUCH DETAIL AS WISTAR MAY REASONABLY REQUEST, THE
PROGRESS OF THE DEVELOPMENT, EVALUATION, TESTING