Common use of Minimum Sales Commitment Clause in Contracts

Minimum Sales Commitment. (a) Distributor shall meet the specified minimum sales commitment with respect to Imaging Systems during each year of this Agreement as set forth in this Section 6.3 (“Minimum Sales Commitment”). In the event that Distributor fails to meet its Minimum Sales Commitment for a Licensed Product in any country within the Territory for any calendar year during the term of this Agreement, then Xenogen may unilaterally change Distributor’s appointment under this Agreement to a non-exclusive basis in such country in the Territory pursuant to Section 13.3; provided that such right shall not be operative in the event that Distributor pays Xenogen, not later than thirty (30) days after the date of Xenogen’s written notice to Distributor that it is invoking Section 13.3, the amount of ***. Provided further that Xenogen’s right to invoke Section 13.3 or the foregoing shortfall payment provision of this Section 6.3(a) shall not apply if Distributor’s failure to achieve such Minimum Sales Commitment is due to a failure by Xenogen to supply such Licensed Product as required. In either case the foregoing right of conversion to non-exclusivity shall not be operative and such shortfall payment shall not be required. (b) Minimum Sales Commitment Year 1 (2003)— four (4) ▇▇▇▇ ™ Imaging Systems ***, with no unit purchased in the first half of the calendar year and at least *** in the second half of the calendar year Year 2 (2004)— ten (10) ▇▇▇▇ ™ Imaging Systems ***, with at least *** units purchased in the first half of the calendar year and at least *** units purchased in the second half of the calendar year Year 3 (2005)— fourteen (14) ▇▇▇▇ ™ Imaging Systems ***, with at least *** units purchased in the first half of *** Confidential treatment requested the calendar year and *** units purchased in the second half of the calendar year.

Minimum Sales Commitment. (a) Distributor shall meet the specified minimum sales commitment with respect to Imaging Systems during each year of this Agreement as set forth in this Section 6.3 (“Minimum Sales Commitment”). In the event that Distributor fails to meet its Minimum Sales Commitment for a Licensed Product in any country within the Territory for any calendar year during the term of this Agreement, then Xenogen may unilaterally change Distributor’s appointment under this Agreement to a non-exclusive basis in such country in the Territory pursuant to Section 13.3; provided that such right shall not be operative in the event that Distributor pays Xenogen, not later than thirty (30) days after the date of Xenogen’s written notice to Distributor that it is invoking Section 13.3, the amount of ***. Provided further that Xenogen’s right to invoke Section 13.3 or the foregoing shortfall payment provision of this Section 6.3(a) shall not apply if Distributor’s failure to achieve such Minimum Sales Commitment is due to a failure by Xenogen to supply such Licensed Product as required. In either case the foregoing right of conversion to non-exclusivity shall not be operative and such shortfall payment shall not be required. (b) Minimum Sales Commitment Year 1 (2003)— four (4) ▇▇▇▇ ™ Imaging Systems ***, with no unit purchased in the first half of the calendar year and at least *** in the second half of the calendar year Year 2 (2004)— ten (10) ▇▇▇▇ ™ Imaging Systems ***, with at least *** units purchased in the first half of the calendar year and at least *** units purchased in the second half of the calendar year Year 3 (2005)— fourteen (14) ▇▇▇▇ ™ Imaging Systems ***, with at least *** units purchased in the first half of *** Confidential treatment requested the calendar year and *** units purchased in the second half of the calendar year.