EACH CALENDAR YEAR
WITHOUT COST TO SUCH PARTY, AND THAT ANY PARTY CONDUCTING ADDITIONAL INSPECTIONS
SHALL REIMBURSE THE MANAGER FOR ITS REASONABLE COSTS AND EXPENSES IN
FACILITATING SUCH INSPECTION. SYMPHONY GENISIS AND ISIS SHALL MEET TO DISCUSS
THE RESULTS OF THE AUDIT AND, IF REQUIRED, JOINTLY AGREE UPON ANY ACTIONS THAT
WILL BE REQUIRED AS A RESULT OF SUCH AUDITS INCLUDING DEFINING MATERIAL
DISCREPANCIES TO BE ADDRESSED. SYMPHONY GENISIS SHALL MAKE COMMERCIALLY
REASONABLE EFFORTS TO RECONCILE ALL SUCH DISCREPANCIES FOUND BY ISIS, HOLDINGS,
INVESTORS OR ANY SYMPHONY FUND DURING SUCH AUDIT.
8.
FUNDING AND PAYMENTS.
8.1
USE OF PROCEEDS.
SYMPHONY GENISIS SHALL USE ANY AND ALL (X) NET
PROCEEDS RECEIVED BY SYMPHONY GENISIS AS A RESULT OF THE FINANCING, (Y)
INDEMNITY PAYMENTS RECEIVED BY SYMPHONY GENISIS, AND (Z) PAYMENTS RECEIVED BY
SYMPHONY GENISIS PURSUANT TO FIRST AND THIRD PARTY COVERED INSURANCE CLAIMS, FOR
THE DEVELOPMENT OF THE PROGRAMS AND GENERAL CORPORATE PURPOSES, INCLUDING THE
PAYMENT OF ALL FEES AND EXPENSES IN ACCORDANCE WITH THE DEVELOPMENT PLAN AND THE
DEVELOPMENT BUDGET, AS MAY BE MODIFIED FROM TIME TO TIME PURSUANT TO SECTION 4.2
AND THE PAYMENT OF ANY INDEMNIFICATION OBLIGATIONS OF SYMPHONY GENISIS UNDER THE
OPERATIVE DOCUMENTS AND AGREEMENTS WITH THIRD PARTY CONTRACTORS. NOTWITHSTANDING
THE FOREGOING, SYMPHONY GENISIS AGREES THAT ANY AGREEMENT UNDER WHICH SYMPHONY
GENISIS INDEMNIFIES ANY PERSON SHALL CONTAIN APPROPRIATE PROVISIONS TO CAUSE
SUCH PERSON WHO RECEIVES PAYMENTS FROM SYMPHONY GENISIS AS A RESULT OF SYMPHONY
GENISIS' INDEMNIFICATION OBLIGATIONS UNDER THE OPERATIVE DOCUMENTS, AND WHO IS
SUBSEQUENTLY REIMBURSED FROM INSURANCE PROCEEDS WITH RESPECT TO SUCH LOSSES,
COSTS, INTEREST, AWARDS, JUDGMENTS, FEES LIABILITIES, DAMAGES AND EXPENSES FOR
WHICH SUCH PERSON RECEIVED THE INDEMNITY PAYMENTS FROM SYMPHONY GENISIS, TO THEN
REIMBURSE SYMPHONY GENISIS THE AMOUNTS PAID TO SUCH PERSON BY SYMPHONY GENISIS
TO THE EXTENT OF THE INSURANCE PROCEEDS. SYMPHONY GENISIS FURTHER AGREES TO USE
ALL COMMERCIALLY REASONABLE MEANS TO ENFORCE SUCH PROVISIONS.
12
8.2
REIMBURSEMENT.
SYMPHONY GENISIS SHALL COMPENSATE ISIS AND RRD
FULLY FOR THEIR RESPECTIVE DEVELOPMENT PLAN-ASSOCIATED ACTIVITIES, INCLUDING
WITHOUT LIMITATION ITS RESEARCH, CLINICAL AND MANUFACTURING SERVICES, AND ANY
OTHER ACTIVITIES DELEGATED TO ISIS OR RRD BY SYMPHONY GENISIS OR THE DEVELOPMENT
COMMITTEE. SUCH COMPENSATION SHALL BE MADE TO (A) ISIS IN ACCORDANCE WITH THE
PROVISIONS OF THIS ARTICLE 8 AND THE PAYMENT TERMS ATTACHED HERETO AS ANNEX E
(THE "PAYMENT TERMS"), THE TERMS OF WHICH ARE HEREBY ADOPTED AND INCORPORATED
HEREIN, AND (B) RRD IN ACCORDANCE WITH THE PAYMENTS TERMS OF SECTION 6 OF THE
RRD SERVICES AGREEMENT AND ANNEX C THERETO.
8.3
BUDGET ALLOCATION AND DEVIATIONS.
ISIS SHALL HAVE THE DISCRETION
TO INCUR OUT-OF-POCKET FEES, EXPENSES AND COSTS AND ALLOCATE ISIS RESOURCES IN A
MANNER CONSISTENT WITH THE DEVELOPMENT PLAN AND THE DEVELOPMENT BUDGET. IF ISIS
REASONABLY ANTICIPATES THAT THE ACTUAL COST FOR ANY PARTICULAR ACTIVITY WILL
EXCEED THE GREATER OF (I) [***] OF THAT PORTION OF THE DEVELOPMENT BUDGET
ALLOCATED FOR SUCH ACTIVITY, AND (II) [***] OF THAT PORTION OF THE DEVELOPMENT
BUDGET ALLOCATED FOR SUCH ACTIVITY (OR SUCH GREATER AMOUNT AS THE SYMPHONY
GENISIS