COST OF LABOR AND RAW MATERIALS (IF ANY) THAT WERE USED,
DAMAGED OR LOST IN CONJUNCTION WITH THE LOST OR DAMAGED PENTOSTATIN CRUDE
CONCENTRATE, PROVIDED SUPERGEN PAID FOR SUCH LABOR AND RAW MATERIALS, AND
(B)
$[***] TO MITIGATE THE LOSS OF THE PENTOSTATIN CRUDE
CONCENTRATE.
Hauser shall provide SuperGen with written notification of loss or damage
promptly after it occurs.
THE PARTIES ACKNOWLEDGE THAT THE ABOVE CREDITS (OR REIMBURSEMENT) OF THE LABOR
AND RAW MATERIALS USED, DAMAGED OR LOST AND THE $[***] PAYMENT [(INCLUDING
INTEREST ON CREDITS OR REIMBURSEMENT NOT TIMELY MADE, WHICH SHALL BE CALCULATED
IN THE SAME MANNER AS INTEREST IS CALCULATED IN SECTION 6.5 HEREIN)] SHALL BE
THE SOLE AND EXCLUSIVE REMEDY OF SUPERGEN PURSUANT TO THIS SECTION 4.4.
THE
PARTIES FURTHER ACKNOWLEDGE THAT TO THE EXTENT HAUSER IS OBLIGATED TO CREDIT
SUPERGEN PURSUANT TO THIS SECTION 4.4, HAUSER SHALL NOT HAVE AN ADDITIONAL
OBLIGATION TO CREDIT SUPERGEN PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, SECTION 8.2 OF THIS AGREEMENT.
5.
ORDERS AND TIMING
5.1
FORECAST.
DURING THE TERM, SUPERGEN SHALL PROVIDE TO HAUSER WRITTEN
FORECASTS ON JANUARY 15TH AND JUNE 15TH OF EACH CONTRACT YEAR.
THE FORECAST
SHALL SET FORTH THE NUMBER OF BATCHES SUPERGEN WILL REQUIRE HAUSER TO PROCESS
OVER THE SUBSEQUENT 12-MONTH PERIOD.
5.2
NON-USE OF FACILITY.
SUPERGEN ACKNOWLEDGES THAT (I) IN ORDER TO
SATISFY HAUSER'S OBLIGATIONS PURSUANT TO THIS AGREEMENT, HAUSER WILL RESERVE
SUITE NUMBER ONE WITHIN THE GUNBARREL FACILITY FOR PROCESSING; (II) HAUSER'S
RESERVATION OF SUCH CGMP SUITE FOR USE PURSUANT TO THIS AGREEMENT SIGNIFICANTLY
LIMITS THE ABILITY OF HAUSER TO USE SUCH SUITE TO PROVIDE SERVICES TO ITS OTHER
CLIENTS; AND (III) HAUSER HAS
5
reserved such cGMP suite with the expectation that SuperGen will require Hauser
to Process at least three (3) Batches in each Contract Year.
SuperGen agrees
that in the event that it does not order Processing and delivery of at least
three (3) Batches in each Contract Year, SuperGen shall pay to Hauser an amount
equal to the product obtained by multiplying (A) [***] dollars times (B) the
difference obtained by subtracting (a) the number of Batches purchased by
SuperGen during the applicable Contract Year from (b) [***] (such product being
the "Shortfall Payment").
SuperGen shall pay the Shortfall Payment within
thirty (30) calendar days following the end of the Contract Year.
To the extent
SuperGen fails to pay Hauser the Shortfall Payment within such period, Hauser
shall be entitled to interest on the Shortfall Payment calculated in the manner
set forth in Section 6.5 herein.
SuperGen shall be entitled to offset any
amounts owed pursuant to this Section 5.2 by advance payments paid by SuperGen
to Hauser towards the Batches that are not Processed by Hauser during the
applicable Contract Year, excluding those amounts paid by SuperGen for
authorized acquisition and qualification of Raw Materials.
The parties
acknowledge that the amount of actual loss to Hauser stemming from SuperGen's
failure to require Hauser to Process at least three (3) Batches in each Contract
Year is