Common use of New Products Clause in Contracts

New Products. With the exception of products listed on Schedule 2.1, SMI agrees that prior to January 1, 2015, it is restricted from selling, marketing, distributing or licensing or permitting others to do so for any new products that incorporate any powdered absorbable hemostat all as further set forth in Section 2.1 within the Territory. After January 1, 2015, SMI agrees to notify CryoLife in writing as and when it develops or obtains regulatory approval for any new products (with the exception of products listed on Schedule 2.1) that incorporate any powdered absorbable surgical hemostat, including the AMP™ technology, and that are more efficacious or commercially advantageous when compared to the Products (each a “New Product”). At CryoLife’s written request, SMI agrees to negotiate exclusively with CryoLife to grant CryoLife exclusive Distribution rights to the New Product within the Territory. If the Parties negotiate diligently and in good faith and are unable to reach agreement within six (6) months after CryoLife notifies SMI, this right of first negotiation shall be suspended as to the notified New Product for a period of six (6) months (the “Open Negotiation Period”) during which time SMI may negotiate with others to Distribute the notified New Product within the Territory upon terms and conditions more favorable to SMI than those last offered by CryoLife. As part of such negotiation the Parties must exchange written proposals about the terms proposed for such transaction. If, during the Open Negotiation Period, SMI receives a bona fide offer of terms with a Third Party that are acceptable to SMI for an agreement that includes Distribution of the New Product (a “Bona Fide Offer”), SMI shall notify and warrant to CryoLife in writing (an “Offer Notice”) of the receipt of a Bona Fide Offer prior to the termination of the Open Negotiation Period, which notice shall include the specific terms of such Bona Fide Offer. The Offer Notice shall constitute an offer to CryoLife for the Distribution of the New Product on the terms set forth in the Offer Notice. CryoLife shall have sixty (60) days from the date of receipt of the Offer Notice to accept the terms of the Offer Notice and notify SMI in writing of CryoLife’s acceptance of such offer. If the Bona Fide Offer includes payment to SMI of any equity securities or any other non-cash assets, CryoLife may substitute for such cash or other non-cash assets, shares of CryoLife’s capital stock or other assets of CryoLife with an equal fair market value. If CryoLife fails to deliver notice of its acceptance of the offer set forth in the Offer Notice, SMI shall be free to consummate the Bona Fide Offer with the Third Party who proposed the Bona Fide Offer within sixty (60) days after the expiration of CryoLife’s sixty (60) day first refusal right contained in this section. If SMI fails to consummate the Bona Fide Offer within such sixty (60) day period, SMI shall be prohibited from consummating such transaction and shall be required to negotiate with CryoLife as to the Distribution rights related to such New Product. The limitations contained in this section are in addition to the limitations contained in Section 2.1(iv) and the last two sentences of Section 2.1.

New Products. With During the exception Term, Vendor may develop and offer additional products (“New Products”) that are not listed as a Product in Exhibit A. The Parties acknowledge and agree that Exhibit A is not an exclusive list and Vendor may communicate New Products (and corresponding pricing) to Customer that are to be covered by this Agreement. In the event that Vendor determines that New Products are to be covered by this Agreement, Vendor will notify Customer (by email or other writing) regarding the New Products and their prices and such New Products shall be deemed Products for purposes of this Agreement. If products listed on Schedule 2.1that are not included in Exhibit A are used by Customer without prior Product and pricing approval, SMI agrees pricing for such items shall be the pricing for the nearest comparable (e.g., features, primary versus revision, etc.) Product for which pricing has been agreed upon by Vendor and Customer. Vendor and Customer agree that pricing, under this methodology, shall be deemed agreed-upon, and incorporated into Exhibit A, within thirty (30) days of Vendor’s notice to Customer of the availability of a New Product. New Technology. New or next generation technology (technology that is not in the current product catalog or has not received FDA approval as of the date of this Agreement) shall be mutually negotiated and agreed upon prior to January 1use. If a product comes to market that will make an existing implant category obsolete, 2015both Parties agree to discuss in good faith a new price for the obsolete implant category. Consigned Products. Products may be placed on consignment upon the terms and conditions of a mutually agreed upon consignment agreement between Customer and Vendor. Product Orders. Each order of Products by Customer is subject to this Agreement (including, it is restricted from sellingwithout limitation, marketingall other exhibits attached to this Agreement by reference). If applicable, distributing or licensing or permitting others Vendor’s representative will submit delivery documents for implant cases to do so Customer’s purchasing department within twenty-four (24) hours after surgery, and Customer will submit a purchase order within forty-eight (48) hours after receipt of the delivery documents for any new products that incorporate any powdered absorbable hemostat all as further the implant case. Each purchase order shall contain information relating to delivery, quantity and the pricing set forth in Section 2.1 within this Agreement, or as mutually agreed upon by the Territory. After January 1, 2015, SMI agrees to notify CryoLife in writing as and when it develops or obtains regulatory approval for any new products (with the exception of products listed on Schedule 2.1) that incorporate any powdered absorbable surgical hemostat, including the AMP™ technologyParties, and that are more efficacious or commercially advantageous when compared to the Products (each a “New Product”). At CryoLife’s written request, SMI agrees to negotiate exclusively with CryoLife to grant CryoLife exclusive Distribution rights to the New Product within the Territory. If the Parties negotiate diligently and in good faith and are unable to reach agreement within six (6) months after CryoLife notifies SMI, this right of first negotiation shall be suspended as to the notified New Product for a period of six (6) months (the “Open Negotiation Period”) during which time SMI may negotiate with others to Distribute the notified New Product within the Territory upon any additional terms and conditions more favorable to SMI than those last offered by CryoLife. As part of such negotiation the Parties must exchange written proposals about the terms proposed for such transaction. If, during the Open Negotiation Period, SMI receives a bona fide offer of terms with a Third Party that are acceptable to SMI for an agreement that includes Distribution of the New Product (a “Bona Fide Offer”), SMI shall notify and warrant to CryoLife in writing (an “Offer Notice”) of the receipt of a Bona Fide Offer prior to the termination of the Open Negotiation Period, which notice shall include the specific terms of such Bona Fide Offer. The Offer Notice shall constitute an offer to CryoLife for the Distribution of the New Product on the terms set forth in the Offer Noticeany purchase order are expressly rejected. CryoLife shall have sixty (60) days While Vendor will make commercially reasonable effort to fill orders and meet specified delivery dates, if Vendor does not fulfill an order received from the date of receipt of the Offer Notice Customer or deliver Products to accept the terms of the Offer Notice and notify SMI in writing of CryoLife’s acceptance of Customer by a specified delivery date, such offer. If the Bona Fide Offer includes payment to SMI of any equity securities act or any other non-cash assets, CryoLife may substitute for such cash or other non-cash assets, shares act shall not constitute a breach by Vendor of CryoLife’s capital stock or other assets of CryoLife with an equal fair market value. If CryoLife fails to deliver notice of its acceptance of the offer set forth in the Offer Notice, SMI shall be free to consummate the Bona Fide Offer with the Third Party who proposed the Bona Fide Offer within sixty (60) days after the expiration of CryoLife’s sixty (60) day first refusal right contained in this section. If SMI fails to consummate the Bona Fide Offer within such sixty (60) day period, SMI shall be prohibited from consummating such transaction and shall be required to negotiate with CryoLife as to the Distribution rights related to such New Product. The limitations contained in this section are in addition to the limitations contained in Section 2.1(iv) and the last two sentences of Section 2.1Agreement.

New Products. With In the exception event that (i) Imation or any of products listed on Schedule 2.1, SMI agrees its Subsidiaries intends to sell a Removable Recording Media Product under a TDK Trademark that prior to January 1, 2015, it is restricted from selling, marketing, distributing or licensing or permitting others to do so for any new products that incorporate any powdered absorbable hemostat all as further set forth not in Section 2.1 within a TDK Product Category (the Territory. After January 1, 2015, SMI agrees to notify CryoLife in writing as and when it develops or obtains regulatory approval for any new products (with the exception of products listed on Schedule 2.1) that incorporate any powdered absorbable surgical hemostat, including the AMP™ technology, and that are more efficacious or commercially advantageous when compared to the Products (each a “New Product”). At CryoLife’s written request, SMI agrees and (ii) it is commercially reasonable for TDK to negotiate exclusively with CryoLife to grant CryoLife exclusive Distribution rights to supply the New Product within (for the Territory. If avoidance of doubt, as of the Parties negotiate diligently Effective Date, it would not be commercially reasonable for TDK to supply flash drives and cards, DVD discs, and HD DVD discs, although any of these may change over time depending on the future direction of TDK), then TDK will have the exclusive right of first negotiation and refusal to supply the New Product as follows: Imation will in good faith and are unable promptly notify TDK in writing of its intention to reach agreement within six (6) months after CryoLife notifies SMIsell the New Product, this right of first negotiation shall be suspended as provide TDK with draft specifications for the New Product and consult with TDK with respect to the notified New Product for a period of six (6) months intended market and specifications (the “Open Negotiation PeriodNew Product Specifications”) during which time SMI may negotiate with others to Distribute for the notified New Product within and with respect to other matters relating to its commercialization. Once Imation has completed the Territory upon terms New Product Specifications, Imation will deliver them to TDK, and conditions more favorable (i) TDK will have the exclusive right to SMI elect whether to supply the New Product to Imation and will exercise such right as promptly as commercially reasonable but not later than those last offered by CryoLife. As part of such negotiation the Parties must exchange written proposals about the terms proposed for such transaction. If, during the Open Negotiation Period, SMI receives a bona fide offer of terms with a Third Party that are acceptable to SMI for an agreement that includes Distribution thirty (30) days after TDK’s receipt of the New Product Specifications; (a “Bona Fide Offer”), SMI shall notify and warrant to CryoLife in writing (an “Offer Notice”ii) of the starting upon TDK’s receipt of a Bona Fide Offer prior to the termination of the Open Negotiation Period, which notice shall include the specific terms of such Bona Fide Offer. The Offer Notice shall constitute an offer to CryoLife for the Distribution of the New Product on Specifications, the terms set forth parties then will negotiate in good faith and exclusively a price for the Offer Notice. CryoLife shall have sixty New Product that is competitive; and (60iii) days from the date of receipt of the Offer Notice to accept the terms of the Offer Notice and notify SMI in writing of CryoLife’s acceptance of such offerTDK will provide a commercialization schedule that is competitive. If TDK elects not to supply the Bona Fide Offer includes payment New Product, the parties in good faith are unable to SMI of any equity securities or any other non-cash assets, CryoLife may substitute agree on such price for such cash or other non-cash assets, shares of CryoLife’s capital stock or other assets of CryoLife with an equal fair market value. If CryoLife fails to deliver notice of its acceptance of the offer set forth in the Offer Notice, SMI shall be free to consummate the Bona Fide Offer with the Third Party who proposed the Bona Fide Offer New Product within sixty (60) days after the expiration of CryoLife’s date on which TDK received the New Product Specifications or TDK does not provide a commercialization schedule that is competitive within sixty (60) day first refusal right contained days after the date on which TDK received the New Product Specifications, then Imation may make other arrangements for supply of such New Products. Otherwise, the New Product will become subject to the supply and purchase commitments set forth in Article 2. Nothing in this section. If SMI fails Section 3.3 will prevent either party from entering into a written joint development agreement with a third party to consummate the Bona Fide Offer within such sixty (60) day perioddevelop a new product, SMI and Imation shall be prohibited from consummating such transaction and shall not be required to negotiate with CryoLife as buy a New Product from TDK if (i) joint development of the specific New Product under such agreement requires at least a twelve (12)-month period prior to commercial launch and (ii) either (x) Imation manufactures the New Product itself and does not outsource the manufacture of such New Product to any third party or (y) Imation is required under the joint development agreement to have the New Product manufactured by the other party to the Distribution rights related to such New Product. The limitations contained in this section are in addition to the limitations contained in Section 2.1(iv) and the last two sentences of Section 2.1joint development agreement.

New Products. With In the exception event that AcelRx intends to commercialize one or more new products with applications for the Class of products listed on Schedule 2.1Trade in the Territory (each, SMI agrees that prior a "New Product"), AcelRx shall first provide a written notice to January 1, 2015, ZB Dental describing the New Product in reasonable detail (a "RFN Notice"). ZB Dental shall notify AcelRx in writing whether it is restricted from selling, marketing, distributing or licensing or permitting others to do so interested in pursuing a distribution arrangement for any new products that incorporate any powdered absorbable hemostat all as further set forth in Section 2.1 within the Territory. After January 1, 2015, SMI agrees to notify CryoLife in writing as and when it develops or obtains regulatory approval for any new products (with the exception of products listed on Schedule 2.1) that incorporate any powdered absorbable surgical hemostat, including the AMP™ technology, and that are more efficacious or commercially advantageous when compared to the Products (each a “New Product”). At CryoLife’s written request, SMI agrees to negotiate exclusively with CryoLife to grant CryoLife exclusive Distribution rights to the New Product within [***] days after it receives the TerritoryRFN Notice. If ZB Dental desires to distribute the New Product, the Parties negotiate diligently and in shall begin good faith and are unable to reach agreement within six (6) months after CryoLife notifies SMI, this right of first negotiation shall be suspended as to the notified New Product for a period of six (6) months (the “Open Negotiation Period”) during which time SMI may negotiate with others to Distribute the notified New Product within the Territory upon terms and conditions more favorable to SMI than those last offered by CryoLife. As part of such negotiation the Parties must exchange written proposals about negotiations on the terms proposed for such transactionof the distribution arrangement. IfDuring the negotiations, during (a) AcelRx shall provide ZB Dental with any relevant information that ZB Dental reasonably requests, so long as AcelRx has or can acquire the Open Negotiation Periodrequested information without unreasonable effort or expense and without violating any confidentiality obligations of AcelRx to any Third Party, SMI receives a bona fide offer of terms and (b) AcelRx shall not initiate or participate in any inquiry, negotiations or discussions with a any Third Party that are acceptable with respect to SMI for an agreement that includes Distribution distribution of the New Product (to Professionals in the Territory. ZB Dental shall promptly notify AcelRx at any point in the negotiations if it is no longer interested in pursuing a “Bona Fide Offer”), SMI shall notify and warrant to CryoLife in writing (an “Offer Notice”) of the receipt of a Bona Fide Offer prior to the termination of the Open Negotiation Period, which notice shall include the specific terms of such Bona Fide Offer. The Offer Notice shall constitute an offer to CryoLife distribution arrangement for the Distribution of New Product. If ZB Dental notifies AcelRx that it is not interested in pursuing a distribution arrangement for the New Product on the Products, or if, after having commenced negotiations, ZB Dental and AcelRx have not agreed upon terms set forth in the Offer Notice. CryoLife shall have sixty (60) within [***] days from the date of after ZB Dental's receipt of the Offer Notice to accept the terms of the Offer Notice and notify SMI in writing of CryoLife’s acceptance of such offer. If the Bona Fide Offer includes payment to SMI of any equity securities or any other non-cash assets, CryoLife may substitute for such cash or other non-cash assets, shares of CryoLife’s capital stock or other assets of CryoLife with an equal fair market value. If CryoLife fails to deliver notice of its acceptance of the offer set forth in the Offer RFN Notice, SMI then ZB Dental's rights under this Section 2.8 shall be terminated, and AcelRx shall be free to consummate seek a distribution agreement with a Third Party. Notwithstanding the Bona Fide Offer with forgoing, the Third Party who proposed the Bona Fide Offer within sixty (60) days after the expiration of CryoLife’s sixty (60) day first refusal right contained in rights and obligations under this section. If SMI fails to consummate the Bona Fide Offer within such sixty (60) day period, SMI Section 2.8 shall be prohibited from consummating such transaction and shall be required to negotiate with CryoLife as to the Distribution rights related to such New Product. The limitations contained in this section are in addition to the limitations contained in Section 2.1(iv) and the last two sentences of Section 2.1not apply during any Non-Exclusive Period.