Common use of Commercial Launch Clause in Contracts

Commercial Launch. Par's management, and its board of directors, shall have the ultimate decision-making authority with respect to the scale and timing of the Commercial Launch of the Product. (a) Subject to Section 4.3(b), Par agrees to Commercially Launch the Product before the later of June 1, 2005 or six (6) months after Regulatory Approval. (b) Par's obligations to Commercially Launch the Product shall be suspended during the existence of any one or more of the following: (i) Par is engaged in litigation with respect to Intellectual Property Rights of a Third Party that concern Product or Par is in good faith negotiations with a Third Party to obtain a license to Intellectual Property Rights that affect the ability to market Product; or (ii) there is a court order that, in the United States, Product infringes a valid claim of a patent of a Third Party or Advancis is prohibited from marketing the product by any judgment, order, injunction, decree or award of any court, administrative agency, or arbitrator or government body; or (iii) Subject to 4.3(c), Par is acting in a commercially reasonable fashion in consideration of reasonable threats of patent infringement. Par agrees to keep Advancis informed regarding such potential patent issues. (c) In the event that Par has not yet launched the product pursuant to Section 4.3(b)(iii) above and Advancis desires to nevertheless launch the Product Advancis will so notify Par. Following such notice, Advancis may if it so chooses seek in good faith an opinion of counsel, which counsel is reasonably acceptable to Par, that such patents that Par is considering pursuant to Section 4.3(b)(iii) are not infringed and/or invalid and/or unenforceable. If Advancis receives such an opinion, Advancis will notify Par and provide a copy of the opinion to Par for its review. If after 45 days ("Par's review period") Par has not notified Advancis that it intends to launch the Product and otherwise comply with the requirements of CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION ASTERISKS DENOTE SUCH OMISSION this Section 4.3 Advancis shall have the right to seek to have a Third Party launch and market the Product or launch and market the Product itself and this Agreement shall automatically terminate as of either (1) the date that Advancis has entered into such an agreement with the Third Party or (2) the date that Advancis launches the Product. With respect to the foregoing item (2), Par hereby agrees that following Par's forty-five (45) day review period Advancis shall be free to enter into such arrangements as necessary to launch and market the Product on its own in reliance upon the ultimate termination of this Agreement and to the extent required Par grants a license under its rights under this Agreement in order to implement such launch. (d) In the event that this Agreement is terminated under Section 4.3(c), Advancis agrees to refund to Par any amounts paid to Advancis under Section 6.2 of this Agreement. Advancis agrees to make such payments at the rate of 50% of its revenue in connection with the Product.

Commercial Launch. Par's management, and its board of directors, shall have the ultimate decision-making authority with respect to the scale and timing of the Commercial Launch of the Product. (a) Subject to Section 4.3(b), Par agrees to Commercially Launch the Product before the later of June 1, 2005 or six (6) months after Regulatory Approval. (b) Par's obligations to Commercially Launch the Product shall be suspended during the existence of any one or more of the following: (i) Par is engaged in litigation with respect to Intellectual Property Rights of a Third Party that concern Product or Par is in good faith negotiations with a Third Party to obtain a license to Intellectual Property Rights that affect the ability to market Product; or (ii) there is a court order that, in the United States, Product infringes a valid claim of a patent of a Third Party or Advancis is prohibited from marketing the product by any judgment, order, injunction, decree or award of any court, administrative agency, or arbitrator or government body; or (iii) Subject to 4.3(c), Par is acting in a commercially reasonable fashion in consideration of reasonable threats of patent infringement. Par agrees to keep Advancis informed regarding such potential patent issues. (c) In the event that Par has not yet launched the product pursuant to Section 4.3(b)(iii) above and Advancis desires to nevertheless launch the Product Advancis will so notify Par. Following such notice, Advancis may if it so chooses seek in good faith an opinion of counsel, which counsel is reasonably acceptable to Par, that such patents that Par is considering pursuant to Section 4.3(b)(iii) are not infringed and/or invalid and/or unenforceable. If Advancis receives such an opinion, Advancis will notify Par and provide a copy of the opinion to Par for its review. If after 45 days ("Par's review period") Par has not notified Advancis that it intends to launch the Product and otherwise comply with the requirements of CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION ASTERISKS DENOTE SUCH OMISSION this Section 4.3 Advancis shall have the right to seek to have a Third Party launch and market the Product or launch and market the Product itself and this Agreement shall automatically terminate as of either (1) the date that Advancis has entered into such an agreement with the Third Party or (2) the date that Advancis launches the Product. With respect to the foregoing item (2), Par hereby agrees that following Par's forty-five (45) day review period Advancis shall be free to enter into such arrangements as necessary to launch and market the Product on its own in reliance upon the ultimate termination of this Agreement and to the extent required Par grants a license under its rights under this Agreement in order to implement such launch. (d) In the event that this Agreement is terminated under Section 4.3(c), Advancis agrees to refund to Par any amounts paid to Advancis under Section 6.2 of this Agreement. Advancis agrees to make such payments at the rate of 50% of its revenue in connection with the Product.