UNITED STATES DOLLARS (USD) ACCORDING
TO THE TERMS SET FORTH HEREIN. ALL PRICES ARE FIRM AND SHALL NOT BE SUBJECT TO
CHANGE, EXCEPT AS PROVIDED HEREIN.
LONZA'S PRICES SHALL BE DEEMED TO INCLUDE
ALL SOVEREIGN, STATE AND LOCAL SALES, USE, EXCISE, VALUE ADDED, PRIVILEGE,
PAYROLL, OCCUPATIONAL AND ANY OTHER APPLICABLE TAXES, FEES, OR DUTIES, PROVIDED
THAT TMC SHALL COOPERATE BY PROVIDING SALE AND RESALE CERTIFICATES AND SUCH
OTHER INFORMATION REASONABLY REQUIRED TO AVOID SUCH TAXES, FEES OR DUTIES AND
WHICH IT TYPICALLY PROVIDES TO VENDORS OR SUPPLIERS.
NO EXTRA
9
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1934, AS AMENDED, AND RULE
24B-2 PROMULGATED THEREUNDER.
OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
CHARGES OR DEDUCTIONS OF ANY KIND WILL BE ALLOWED UNLESS SPECIFICALLY AGREED TO
IN WRITING BY THE PARTIES.
9.2
THE PRICE MAY BE ADJUSTED AS FOLLOWS TO REFLECT
EXCHANGE RATE FLUCTUATIONS BETWEEN THE SWISS FRANC AND US DOLLAR.
AT ANY TIME
DURING THE FIRST FIFTEEN (15) DAYS OF A CALENDAR QUARTER, EITHER PARTY MAY
REQUEST AN ADJUSTMENT TO BE MADE IF, ON THE DATE OF SUCH A REQUEST, THE AVERAGE
EXCHANGE RATE OF US DOLLARS INTO SWISS FRANCS, AS REPORTED IN THE WALL STREET
JOURNAL (EASTERN EDITION), FOR THE TEN (10) BUSINESS DAY PERIOD IMMEDIATELY
PROCEEDING THAT DATE AS COMPARED WITH THE RATE OF EXCHANGE BETWEEN THOSE
CURRENCIES APPLICABLE UPON EXECUTION OF THIS AGREEMENT OR THE DATE OF THE LAST
PURCHASE PRICE ADJUSTMENT VARIES BY FIVE PERCENT (5%) OR MORE.
IF THE VARIANCE
IS MORE THAT FIVE PERCENT (5%) BUT LESS THAN TEN PERCENT (10%), THEN THE
PURCHASE PRICE SHALL BE ADJUSTED TO REFLECT 50% OF SUCH CHANGE.
IF THE VARIANCE
IS MORE THAN TEN PERCENT (10%), THE PARTIES SHALL MEET AND NEGOTIATE IN GOOD
FAITH A SOLUTION PROTECTING THE INTERESTS OF BOTH PARTIES. IF THE VARIANCE IS
LESS THAN FIVE PERCENT (5%), THERE SHALL BE NO PURCHASE PRICE ADJUSTMENT AT THAT
TIME.
9.3
EXCEPT AS PROVIDED IN CLAUSE 9.2, THE PRICES CHARGED
DURING THE DEVELOPMENT PHASE
*** .
DURING THE COMMERCIAL PHASE, THE PRICE FOR
PRODUCTS MAY BE ADJUSTED
*** .
ANY SUCH PRICE INCREASE SHALL BE SUBJECT TO
GOOD FAITH NEGOTIATIONS AND MUTUAL AGREEMENT OF THE PARTIES, PROVIDED THAT UNDER
NO CIRCUMSTANCES SHALL ANY PRICE
*** , WHERE: (I)
***
EQUALS THE
***
PUBLISHED AND IN EFFECT ON THE THEN MOST RECENT ANNIVERSARY OF THIS AGREEMENT;
(II) " *** " EQUALS THE
***
PUBLISHED AND IN EFFECT ON THE DATE THE PRICE
SUBJECT TO ADJUSTMENT WAS ESTABLISHED; AND (III) " *** " SHALL MEAN THE
*** .
9.4
DURING THE DEVELOPMENT PHASE, LONZA SHALL ISSUE AN
INVOICE UPON ACHIEVING A MILESTONE OR ACCEPTANCE OF A DELIVERABLE. DURING THE
COMMERCIAL PHASE, LONZA SHALL ISSUE AN INVOICE UPON SHIPMENT OF THE PRODUCT TO
TMC. EACH INVOICE SHALL REFER TO THE APPLICABLE MILESTONE OR DELIVERABLE IN THE
WORK SCHEDULE, OR TO ANY PURCHASE ORDER NUMBER, ITEM