DISCLOSES AN UNDERPAYMENT BY MORE THAN FIVE PERCENT (5%) OF THE AMOUNT DUE
FOR THE PRECEDING YEAR AND SUCH UNDERPAYMENT OF MORE THAN FIVE PERCENT (5%) IS
VERIFIED BY THE FIRM ENGAGED BY THE PURCHASER IF IT CHOOSES TO ENGAGE A FIRM FOR
AUDIT VERIFICATION PURPOSES.
THE PURCHASER SHALL BEAR THE FULL COST OF THE FIRM
IT ENGAGES TO VERIFY THE AUDIT FINDINGS.
*CONFIDENTIAL TREATMENT REQUESTED
7
SECTION 2.16
PAYMENTS.
THE REGULATORY MILESTONE PAYMENT AND THE
ROYALTY PAYMENTS SHALL BE MADE ELECTRONICALLY IN US DOLLARS AND TO SUCH PLACE
AND ACCOUNT AS MAY BE DESIGNATED FROM TIME TO TIME FOR THAT PURPOSE BY THE
COMPANY TO PURCHASER IN WRITING.
SECTION 2.17
WITHHOLDING TAXES. ALL SUMS PAYABLE BY EITHER PARTY UNDER
THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE REGULATORY MILESTONE PAYMENT
AND THE ROYALTY PAYMENTS) SHALL BE PAID IN FULL AND WITHOUT ANY SET-OFF,
COUNTERCLAIM, TAXES, DUTIES, LEVIES, FEES, CHARGES, DEDUCTION OR WITHHOLDING ON
ANY GROUND WHATSOEVER, EXCEPT AS MAY BE REQUIRED BY LAW. THE PARTIES SHALL
CONSIDER TOGETHER TO WHAT EXTENT, IF AT ALL, IT MAY LAWFULLY BE POSSIBLE TO
MITIGATE THE AMOUNT OF SUCH DEDUCTION OR WITHHOLDING OR OF THE AMOUNT REQUIRED
TO BE PAID AS AFORESAID, INCLUDING THE USE OF BEST EFFORTS TO MAKE TIMELY AND
PROCEDURALLY CORRECT APPLICATION FOR RELIEF FROM WITHHOLDING TAX IN RESPECT OF
ANY SUCH PAYMENT. FOR ANY TAXES, DUTIES, LEVIES, FEES, CHARGES, DEDUCTION OR
WITHHOLDING ON ANY GROUND WHATSOEVER WITHHELD OR TO BE WITHHELD, EACH PARTY
AGREES TO TIMELY DELIVER ALL CERTIFICATES AND FORMS AS MAY BE NECESSARY AND
APPROPRIATE TO ESTABLISH AN EXEMPTION FROM TAX OR FILE TAX RETURNS AS WOULD BE
NECESSARY WITH RESPECT TO SUCH TAXES.
Article III
Regulatory Issues, Intellectual Property Protection, Licensing and Related
Matters
SECTION 3.1
PROSECUTION AND MAINTENANCE OF LICENSED PATENT RIGHTS;
PREPARATION OF FDA FILINGS.
(A)
REGULATORY FILINGS.
THE PURCHASER SHALL HAVE THE SOLE RIGHT, BUT
NO OBLIGATION, TO FILE AND PROSECUTE ANY REGULATORY FILINGS APPLICABLE TO THE
ANY PRODUCTS, INCLUDING WITHOUT LIMITATION PREPARATION OF NDA FILINGS, WHICH IT
SHALL PERFORM IN ITS SOLE DISCRETION, PROVIDED, HOWEVER, THAT THIS PROVISION
SHALL NOT ALTER THE PURCHASER'S OBLIGATIONS UNDER SECTION 2.2.
(B)
RIGHT TO PROSECUTE AND MAINTAIN.
THE PURCHASER SHALL HAVE THE
SOLE RIGHT AND OPTION TO FILE AND PROSECUTE ANY PATENT APPLICATIONS AND TO
MAINTAIN ANY PATENTS INCLUDED IN THE LICENSED PATENT RIGHTS OR THE PRODUCT
INTELLECTUAL PROPERTY.
THE PURCHASER SHALL PROVIDE THE COMPANY WITH COPIES OF
SUCH FILINGS OR APPLICATIONS PROMPTLY. NOTWITHSTANDING THE FOREGOING, THE
PURCHASER SHALL COOPERATE WITH THE COMPANY TO COORDINATE ANY PATENT APPLICATIONS
OR REGULATORY FILINGS APPLICABLE TO THE PRODUCTS, INCLUDING SOLICITING THE
COMPANY'S INPUT AND ADVICE WITH RESPECT TO THE COMPANY'S EXISTING LICENSES
OUTSIDE THE TERRITORY, PROVIDED, HOWEVER, THAT THE PURCHASER SHALL RETAIN SOLE
DISCRETION IN SUCH PATENT APPLICATIONS AND REGULATORY FILINGS.
THE PURCHASER
SHALL, WITH RESPECT TO THOSE LICENSED PATENT RIGHTS THAT CONSTITUTE PATENT
APPLICATIONS, (I) PROVIDE ALL DRAFT PATENT APPLICATIONS TO THE COMPANY
SUFFICIENTLY IN ADVANCE OF FILING FOR THE COMPANY TO HAVE A REASONABLE
OPPORTUNITY TO COMMENT