Common use of Failure to Reach Consensus Clause in Contracts

Failure to Reach Consensus. In the event that the members of the JSC cannot come to consensus within [**] with respect to any matter over which the JSC has authority and responsibility as set forth in Section 3.3, the JSC shall submit the respective positions of the Parties with respect to such matter for discussion in good faith to the respective chief executive officers of VIVUS and Auxilium for resolution. If such chief executive officers are not able to mutually agree upon the resolution to such matter within [**] after submission to them, then, subject to the limitations of Section 3.4, (a) the chief executive officer of VIVUS shall have the right to decide matters relating to a regulatory issue or the Label Expansion Filing, in each case, prior to transfer of the Product Marketing Authorization to Auxilium, except that in no event can the chief executive officer of VIVUS unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]; (ii) [**] or would reasonably be expected to [**] the [**]; (iii) impedes or may impede in any way the supply of Product to Auxilium, or (iv) is contrary to the terms of this Agreement or any other written agreement between the Parties; and (b) to the extent such matter relates to a Development or Commercialization issue, or relates to a regulatory issue (after transfer of the Product Marketing Authorization to Auxilium), the chief executive officer of Auxilium shall have the right to decide such matter, except that in no event can the chief executive officer of Auxilium unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]; (ii) [**] or would reasonably be expected to [**] the [**], or (iii) is contrary to the terms of this Agreement or any other written agreement between the Parties.

Failure to Reach Consensus. In the event that the members of the JSC cannot come to consensus within [**] ten (10) Business Days with respect to any matter over which the JSC has authority and responsibility as set forth in Section 3.3, the JSC shall submit the respective positions of the Parties with respect to such matter for discussion in good faith to the respective chief executive officers of VIVUS and Auxilium Licensee for resolution. If such chief executive officers are not able to mutually agree upon the resolution to such matter within [**] ten (10) Business Days after submission to them, then, subject to the limitations of Section 3.4, (a) the chief executive officer of VIVUS shall have the right to decide matters relating to a regulatory issue or the Label Expansion Filing, in each case, prior to transfer of the Product Marketing Authorization to AuxiliumLicensee, except that in no event can the chief executive officer of VIVUS unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]a material safety issue with respect to the Product; (ii) [**] undermines or would reasonably be expected to [**] undermine the [**]validity of any Regulatory Approval in the Licensee Territory; (iii) impedes or may impede in any way the supply of Product to AuxiliumLicensee, or (iv) is contrary to the terms of this Agreement or any other written agreement between the Parties; and (b) to the extent such matter relates to a Development or Commercialization issue, or relates to a regulatory issue (after transfer of the Product Marketing Authorization to AuxiliumLicensee), the chief executive officer of Auxilium Licensee shall have the right to decide such matter, except that in no event can the chief executive officer of Auxilium Licensee unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]a material safety issue with respect to the Product; (ii) [**] undermines or would reasonably be expected to [**] undermine the [**]validity of any Regulatory Approval in the VIVUS Territory, or (iii) is contrary to the terms of this Agreement or any other written agreement between the Parties.

Failure to Reach Consensus. In the event that the members of the JSC cannot come to consensus within [**] * with respect to any matter over which the JSC has authority and responsibility as set forth in Section 3.3, the JSC shall submit the respective positions of the Parties with respect to such matter for discussion in good faith to the respective chief executive officers of VIVUS and Auxilium for resolution. If such chief executive officers are not able to mutually agree upon the resolution to such matter within [**] * after submission to them, then, subject to the limitations of Section 3.4, (a) the chief executive officer of VIVUS shall have the right to decide matters relating to a regulatory issue or the Label Expansion Filing, in each case, prior to transfer of the Product Marketing Authorization to Auxilium, except that in no event can the chief executive officer of VIVUS unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] * the [**]*; (iii) impedes or may impede in any way the supply of Product to Auxilium, or (iv) is contrary to the terms of this Agreement or any other written agreement between the Parties; and (b) to the extent such matter relates to a Development or Commercialization issue, or relates to a regulatory issue (after transfer of the Product Marketing Authorization to Auxilium), the chief executive officer of Auxilium shall have the right to decide such matter, except that in no event can the chief executive officer of Auxilium unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] * the [**]*, or (iii) is contrary to the terms of this Agreement or any other written agreement between the Parties.

Failure to Reach Consensus. In the event that the members of the JSC cannot come to consensus within [**] * with respect to any matter over which the JSC has authority and responsibility as set forth in Section 3.3responsibility, the JSC shall submit the respective positions of the Parties with respect to such matter for discussion in good faith by the Alliance Managers. If such Alliance Managers are not able to mutually agree upon the resolution to such matter within *** after the JSC’s submission to them, then the Alliance Managers shall submit the respective positions of the Parties with respect to such matter to the respective chief executive officers of VIVUS and Auxilium Menarini for resolution. If such chief executive officers are not able to mutually agree upon the resolution to such matter within [**] * after submission to them, then, subject to the limitations of Section 3.4, (a) to the extent such matter relates to a Development, regulatory, or manufacturing issue, the chief executive officer of VIVUS shall have the right to decide matters relating to a regulatory issue or such matter, always with the Label Expansion Filing, in each case, prior to transfer aim of preserving the commercial viability of the Product Marketing Authorization to Auxiliumin the Menarini Territory, and except that in no event can the chief executive officer of VIVUS unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] * the [**]* in the Menarini Territory; or (iii) impedes or may impede in any way the supply of Product to Auxilium, or (iv) is contrary to the express terms of this Agreement or any other written agreement between the Parties; and (b) to the extent such matter relates to a Development or Commercialization issue, or relates to a regulatory issue (after transfer of the Product Marketing Authorization to Auxiliumother than a manufacturing or regulatory issue), the chief executive officer of Auxilium Menarini shall have the right to decide such matter, always with the aim of preserving the commercial viability of the Product in the Menarini Territory, and except that in no event can the chief executive officer of Auxilium Menarini unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] * the [**]*, (or (iiiii) is contrary to the express terms of this Agreement or any other written agreement between the Parties.

Failure to Reach Consensus. In the event that the members of the JSC cannot come to consensus within [**] * with respect to any matter over which the JSC has authority *** INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. and responsibility as set forth in Section 3.3‎3.3, the JSC shall submit the respective positions of the Parties with respect to such matter for discussion in good faith to the respective chief executive officers of VIVUS and Auxilium Licensee for resolution. If such chief executive officers are not able to mutually agree upon the resolution to such matter within [**] * after submission to them, then, subject to the limitations of Section 3.4‎3.4, (a) the chief executive officer of VIVUS shall have the right to decide matters relating to a regulatory issue or the Label Expansion Filing, in each case, prior to transfer of the Product Marketing Authorization to AuxiliumLicensee, except that in no event can the chief executive officer of VIVUS unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] the [**]; (iii) impedes or may impede in any way the supply of Product to AuxiliumLicensee, or (iv) is contrary to the terms of this Agreement or any other written agreement between the Parties; and (b) to the extent such matter relates to a Development or Commercialization issue, or relates to a regulatory issue (after transfer of the Product Marketing Authorization to AuxiliumLicensee), the chief executive officer of Auxilium Licensee shall have the right to decide such matter, except that in no event can the chief executive officer of Auxilium Licensee unilaterally decide such matter in a manner that (i) creates or would reasonably be expected to create [**]*; (ii) [**] * or would reasonably be expected to [**] the [**], or (iii) is contrary to the terms of this Agreement or any other written agreement between the Parties.