Common use of Orders and Forecasts Clause in Contracts

Orders and Forecasts. On or before December 31, 1999 and not -------------------- less than fifteen days prior to the first day of each calendar quarter thereafter, (15 March, 15 June, 15 September, 15 December) ▇▇▇▇▇▇▇▇ shall submit to Proton the following: (a) A firm, irrevocable written Purchase Order for the Systems to be purchased by ▇▇▇▇▇▇▇▇ each month during the subject calendar quarter specifying the quantities of each model of the Systems to be purchased. All such Purchase Orders shall be for at least [*****] of the quantities listed in the Forecast submitted during the preceding quarter, and during the Exclusivity Period all such Purchase Orders shall cover a minimum of [*****] of the then applicable annual Minimum Purchase Requirements. Proton shall not be required to accept or fill (a) any Purchase Order to the extent such Purchase Order exceeds (i) [*****]of the quantities estimated in the Forecast for the subject quarter submitted by ▇▇▇▇▇▇▇▇ prior to the beginning of the calendar quarter then ended, or (ii) [*****] of the largest quantities purchased by ▇▇▇▇▇▇▇▇ during any previous calendar quarter during the term of this Agreement; or (b) any supplemental or additional Purchase Order which is submitted during any quarter after the initial purchase order for the subject quarter is placed. In no event shall Proton be required to accept or fill any Purchase Order submitted by ▇▇▇▇▇▇▇▇ pursuant to this Agreement unless all amounts payable to Proton hereunder have been paid in full when due. This Agreement and the terms and conditions hereof shall prevail over any inconsistent or additional terms set forth in any Purchase Order. (b) With the submission of each Purchase Order, ▇▇▇▇▇▇▇▇ shall provide a quarterly written forecast of Systems required ("Forecast") for the subsequent three calendar quarters following the purchase order period. Such Forecast shall indicate the number of units required by System type for each quarter. At any time during the term of this Agreement, if ▇▇▇▇▇▇▇▇ plans to place Purchase Orders for the Systems in quantities which vary significantly from those set forth in its most recent Forecast, then ▇▇▇▇▇▇▇▇ shall use reasonable efforts to update such Forecast sufficiently in advance to enable Proton to timely fill all purchase orders placed. Each Forecast shall supersede the terms of the prior Forecast, provided, that no Forecast shall vary the terms of -------- any purchase order without the written consent of Proton (which consent shall not be unreasonably withheld). *****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.*****

Orders and Forecasts. On or before December 31, 1999 and not -------------------- less than fifteen days prior to Zogenix shall provide Patheon with the first day of each calendar quarter thereafter, (15 March, 15 June, 15 September, 15 December) ▇▇▇▇▇▇▇▇ shall submit to Proton the following:following:- (a) A firmwritten non-binding [***] ([***]) [***] forecast, irrevocable written Purchase Order broken down by month for [***] and [***], of the volume for each Product that Zogenix then anticipates will be required to be produced and delivered to Zogenix during that [***] ([***]) [***] period. The format of the non-binding [***] ([***]) [***] forecast will be as per the forecast model in Schedule E. Such non-binding forecast will be updated by Zogenix [***] on a rolling basis. (b) Prior to tiered pricing being agreed, Zogenix shall, on or before the fifteenth (15th) day of each calendar month, provide Firm Orders to Patheon for the Systems Products to be purchased produced and delivered to Zogenix for a period of not less than [***] ([***]) [***] from the first day of the calendar month immediately following the month that the Firm Order is submitted. Such Firm Orders submitted to Patheon shall specify the Zogenix purchase order number, order quantities by ▇▇▇▇▇▇▇▇ each month during Product type, delivery date and any other elements necessary to ensure the subject calendar quarter specifying timely production and delivery of the Products. The quantities of each model of the Systems to be purchased. All such Purchase Products ordered via Firm Orders shall be binding on Zogenix and shall not be subject to reduction. Zogenix may request the cancellation of a Firm Order, but the acceptance of such cancellation shall be at the sole discretion of Patheon. (c) When tiered pricing has been agreed between the Parties, Zogenix shall, on or before the fifteenth (15th) day of each calendar month, provide firm written orders (“Firm Orders”) to Patheon for at least the Products to be produced and delivered to Zogenix for a period of not less than [***] ([***]) [***] from the first day of the calendar month immediately following the month that the Firm Order is submitted. Such Firm Orders submitted to Patheon shall specify the Zogenix purchase order number, order quantities by Product type, delivery date and any other elements necessary to ensure the timely production and delivery of the Products. The quantities of Products ordered via Firm Orders shall be binding on Zogenix and shall not be subject to reduction. Zogenix may request the cancellation of a Firm Order, but the acceptance of such cancellation shall be at the sole discretion of Patheon. For the avoidance of doubt, in the event that Firm Orders are cancelled by Zogenix and such cancellation is accepted by Patheon, then Patheon shall be entitled to charge Zogenix an amount equivalent to the unabsorbed fixed costs associated with the reduction in expected Firm Orders provided that Patheon uses reasonable commercial efforts to mitigate such costs. For the purposes of this paragraph 5.2(b), it will be considered that Patheon’s fixed costs are equal to [***] of the quantities listed in Service Fee that would have been payable had the Forecast submitted during the preceding quarter, and during the Exclusivity Period all such Purchase Orders shall cover a minimum of [cancelled Firm order been fulfilled. *****] of * Certain information on this page has been omitted and filed separately with the then applicable annual Minimum Purchase RequirementsCommission. Proton shall not be required to accept or fill (a) any Purchase Order Confidential treatment has been requested with respect to the extent such Purchase Order exceeds omitted portions. (id) [*****]of In the quantities estimated event Zogenix requires Manufacturing and Support Services for which a Support Fee is due as contemplated in the Forecast for the subject quarter submitted by ▇▇▇▇▇▇▇▇ Section 2.1 above, then Patheon shall provide Zogenix with a quotation which shall be agreed prior to the beginning of the calendar quarter then ended, or (ii) [*****] of the largest quantities purchased such Manufacturing and Support Services being undertaken by ▇▇▇▇▇▇▇▇ during any previous calendar quarter during the term of this Agreement; or (b) any supplemental or additional Purchase Order which is submitted during any quarter after the initial Patheon and Zogenix shall provide Patheon with a purchase order for the subject quarter is placed. In no event shall Proton be required to accept or fill any Purchase Order submitted by ▇▇▇▇▇▇▇▇ pursuant to this Agreement unless all amounts payable to Proton hereunder have been paid in full when due. This Agreement and the terms and conditions hereof shall prevail over any inconsistent or additional terms set forth in any Purchase Ordersame. (b) With the submission of each Purchase Order, ▇▇▇▇▇▇▇▇ shall provide a quarterly written forecast of Systems required ("Forecast") for the subsequent three calendar quarters following the purchase order period. Such Forecast shall indicate the number of units required by System type for each quarter. At any time during the term of this Agreement, if ▇▇▇▇▇▇▇▇ plans to place Purchase Orders for the Systems in quantities which vary significantly from those set forth in its most recent Forecast, then ▇▇▇▇▇▇▇▇ shall use reasonable efforts to update such Forecast sufficiently in advance to enable Proton to timely fill all purchase orders placed. Each Forecast shall supersede the terms of the prior Forecast, provided, that no Forecast shall vary the terms of -------- any purchase order without the written consent of Proton (which consent shall not be unreasonably withheld). *****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.*****

Orders and Forecasts. On or before December 31, 1999 and not -------------------- less than fifteen days prior to the first day of each calendar quarter thereafter, (15 March, 15 June, 15 September, 15 December) ▇▇▇▇▇▇▇▇ shall submit to Proton the following: (a) A firmUpon execution of this agreement, irrevocable written Purchase Order Sonus shall supply Gensia Sicor with a Forecast for the Systems to be purchased by ▇▇▇▇▇▇▇▇ each month during the subject calendar quarter specifying the quantities of each model of the Systems to be purchasedProduct, and update it [ * ]. All such Purchase Orders shall be for at least [*****] of the quantities listed in For clinical Product Gensia Sicor acknowledges that the Forecast submitted during the preceding quarter, is an estimate and during the Exclusivity Period all such Purchase Orders shall cover a minimum of [*****] of the then applicable annual Minimum Purchase Requirements. Proton shall not be required to accept or fill (a) any Purchase Order to the extent such Purchase Order exceeds (i) [*****]of the quantities estimated in the Forecast for the subject quarter submitted by ▇▇▇▇▇▇▇▇ prior to the beginning of the calendar quarter then ended, or (ii) [*****] of the largest quantities purchased by ▇▇▇▇▇▇▇▇ during any previous calendar quarter during the term of this Agreement; or (b) any supplemental or additional Purchase Order which is submitted during any quarter after the initial purchase order for the subject quarter is placed. In no event shall Proton be required to accept or fill any Purchase Order submitted by ▇▇▇▇▇▇▇▇ pursuant to this Agreement unless all amounts payable to Proton hereunder have been paid in full when due. This Agreement and the terms and conditions hereof shall prevail over any inconsistent or additional terms set forth in any Purchase Orderbinding. (b) With At least [ * ] prior to the first forecasted commercial sale of the Product, and thereafter [ * ], Sonus shall supply Gensia Sicor with a rolling Forecast of the quantities of the Product Sonus intends to order during the following [ * ] period. Estimated demand for Product shall be communicated [ * ]. The first [ * ] of the Forecast shall constitute a firm order and a binding commitment. The last [ * ] of each Forecast shall constitute a good faith estimate of expected orders for the Product to assist Gensia Sicor with production planning. (c) In addition to a rolling [ * ] Forecast, Sonus shall supply Gensia Sicor with a Master Forecast on the following schedule: 1. [ * ] prior to commercial launch, then; 2. Prior to either [ * ], whichever comes first, then; 3. [ * ] after the latest submission of the Master Forecast, then; 4. Prior to [ * ] in all subsequent years Sonus' purchase obligation shall be [ * ] of the [ * ] Forecasted in each Master Forecast. Should the number of [ * ] ordered by Sonus in any [ * ] be less than [ * ] of the [ * ] forecasted in the Master Forecast, Sonus shall pay Gensia Sicor [ * ] of the then current [ * ] as set forth in Exhibit J for each [ * ] not supplied. If any failure to meet the purchase obligation under the Master Forecast results from cancellation of any order for which a fee is payable under subparagraph (h) below, the total fee payable for any [ * ] not supplied shall be [ * ]. (d) Sonus shall place each Purchase Order with Gensia Sicor for Product to be delivered hereunder at least [ * ] prior to the requested delivery date specified in each respective Purchase Order. Gensia Sicor will deliver written confirmation of receipt of each Purchase Order and the anticipated delivery date of Product to Sonus within [ * ] of receipt by Gensia Sicor. Sonus shall be obligated to purchase all Product ordered and delivered by the specified delivery date. (e) Gensia Sicor may reject any Purchase Order that exceeds [ * ] of the [ * ] forecasted in the Master Forecast. No rejection shall be effective unless in writing and delivered to Sonus within [ * ] of Gensia Sicor's receipt of Sonus' Purchase Order, ▇▇▇▇▇▇▇▇ shall provide a quarterly written forecast . Gensia Sicor will use commercially reasonable efforts to meet Sonus' requests for [ * ] in excess of Systems required ("Forecast") for the subsequent three calendar quarters following the purchase order period. Such Forecast shall indicate the number of units required by System type for each quarter. At any time during the term of this Agreement, if ▇▇▇▇▇▇▇▇ plans to place Purchase Orders for the Systems in quantities which vary significantly from those set forth in its most recent Forecast, then ▇▇▇▇▇▇▇▇ shall use reasonable efforts to update such Forecast sufficiently in advance to enable Proton to timely fill all purchase orders placed. Each Forecast shall supersede the terms of the prior Master Forecast, provided, however, that no Forecast breach of this Agreement shall vary occur if Gensia Sicor, despite its commercially reasonable efforts, is unable to supply such quantities of Product to Sonus. (f) Each Purchase Order for Product shall be governed by the terms of this Agreement and none of the provisions of such Purchase Order shall be applicable except those specifying quantity ordered, delivery dates, special shipping instructions and invoice information. (g) Sonus shall have the right to audit Gensia Sicor's records during normal business hours, from time to time, to confirm that the provisions of this Agreement are being applied as specified. (h) In the event Sonus cancels or postpones Processing prior to the manufacturing date communicated to Sonus pursuant to this Section 8.7, Gensia Sicor shall use commercially reasonable efforts to reschedule the postponed order to a date agreeable to both Parties. If Sonus does not reschedule the date of manufacture to a date within [ * ] of the originally scheduled date, the Purchase Order shall be considered cancelled. Sonus may postpone a Purchase Order [ * ]. Sonus shall reimburse Gensia Sicor for all unique supplies and components acquired for Sonus in the event of cancellation of any manufacturing run. If a manufacturing date is cancelled or postponed by Sonus, Sonus may be charged a cancellation fee in accordance with the following: -------- any purchase order without * Omitted pursuant to Rule 24b-2 and filed separately with the written consent Commission. ---------------------------------------------- -------------------------------- CANCELLATION / POSTPONEMENT FEE ---------------------------------------------- -------------------------------- Notice of Proton (which consent shall not be unreasonably withheld). *****CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.*****cancellation /postponement received [ * ] as set forth in Exhibit J. less than [ * ] from the scheduled fill date ---------------------------------------------- -------------------------------- Notice of cancellation / postponement received [ * ] less than [ * ] from the scheduled fill date ---------------------------------------------- -------------------------------- Notice of cancellation / postponement received [ * ] less than [ * ] from the scheduled fill date ---------------------------------------------- -------------------------------- Notice of cancellation / postponement received [ * ] less than [ * ] from the scheduled fill date ---------------------------------------------- --------------------------------