Net Sales

Net Sales. Shall mean the The gross amount billed by COMPANY and its AFFILIATES and SUBLICENSEES and CORPORATE PARTNERS for LICENSED PRODUCTS and LICENSED PROCESSES, PROCESSES and IDENTIFIED PRODUCTS, less the following: (i) customary trade, quantity, or cash discounts and rebates to the extent actually allowed and taken; (ii) amounts repaid or credited by reason of rejection rejection, recall or return; (iii) to the extent separately stated on purchase orders, invoices, or other documents of sale, any... taxes or other governmental charges levied on the production, sale, transportation, delivery, or use of a LICENSED PRODUCT or LICENSED PROCESS or IDENTIFIED PRODUCT which is paid by or on behalf of COMPANY; (iv) discounts or rebates or other payments required by law to be made under Medicaid, Medicare or other governmental special medical assistance programs, to the extent actually allowed and (iv) taken; and (v) outbound transportation costs prepaid or allowed and costs of insurance in transit. No deductions shall be made for commissions paid to individuals whether they be with independent sales agencies or regularly employed by COMPANY or its AFFILIATES or SUBLICENSEES or CORPORATE PARTNERS and on its payroll, or for cost of collections. NET SALES shall occur on the date of billing for a LICENSED PRODUCT or LICENSED PROCESS. PROCESS or IDENTIFIED PRODUCT. If a LICENSED PRODUCT or a LICENSED PROCESS or IDENTIFIED PRODUCT is distributed at a discounted price that is substantially lower than the customary price charged by COMPANY, COMPANY or its AFFILIATES or SUBLICENSEES or CORPORATE PARTNERS, or distributed for non-cash consideration (whether or not at a discount), NET SALES shall be calculated based on the non-discounted amount of the LICENSED PRODUCT or LICENSED PROCESS or IDENTIFIED PRODUCT charged to an independent third party during the same REPORTING PERIOD or, in the absence of such sales, on the fair market value of the LICENSED PRODUCT or LICENSED PROCESS or IDENTIFIED PRODUCT, except that NET SALES on such discounted consideration for LICENSED PRODUCT, LICENSED PROCESS or IDENTIFIED PRODUCT shall be calculated on the discounted value for a **** period from the date of first commercial sale. Notwithstanding the foregoing, and so long as no consideration is received for such transfers or dispositions, NET SALES for transfers or dispositions of LICENSED PRODUCT or LICENSED PROCESS or IDENTIFIED PRODUCT: (i) in connection with patient assistance programs; (ii) for charitable or promotional purposes; (iii) for preclinical, clinical regulatory or governmental purposes or under so-called named patient or other limited access programs; or (iv) for use in any tests or studies reasonably necessary to comply with any law, regulation or request by a regulatory authority, shall not, in each case of (i) through (iv), be deemed included in the calculation of NET SALES. Non-monetary consideration shall not be accepted by COMPANY COMPANY, any AFFILIATE, any SUBLICENSEE, or any AFFILIATE, CORPORATE PARTNER for any LICENSED PRODUCTS or LICENSED PROCESSES or IDENTIFIED PRODUCTS without the prior written consent of M.I.T. THE PARTIES. In the event that non-monetary consideration is received for LICENSED PRODUCTS or LICENSED PROCESSES or IDENTIFIED PRODUCT, NET SALES shall be calculated based on the fair market value of such non-monetary consideration (including all elements of such consideration), as determined by the parties in good faith. View More

Net Sales. Shall mean the gross amount billed by COMPANY LICENSEE and its AFFILIATES ASSOCIATE S and SUBLICENSEES for LICENSED PRODUCTS and LICENSED PROCESSES, less the following: (i) customary Customary trade, quantity, or cash discounts to the extent actually allowed and taken; (ii) amounts Amounts repaid or credited by reason of rejection or return; (iii) to To the extent separately stated on purchase orders, invoices, or other documents of sale, any taxes or other governmental charges levied on the... production, sale, transportation, delivery, or use of a LICENSED PRODUCT or LICENSED PROCESS which is paid by or on behalf of COMPANY; LICENSEE; and (iv) outbound Outbound transportation costs prepaid or allowed and costs of insurance in transit. No deductions shall be made for commissions paid to individuals whether they be with independent sales agencies or regularly employed by COMPANY LICENSEE and on its payroll, or for cost of collections. NET SALES shall occur on the date of billing for a LICENSED PRODUCT or LICENSED PROCESS. If a LICENSED PRODUCT or a LICENSED PROCESS is distributed at a discounted price that is substantially lower than the customary price charged by COMPANY, LICENSEE, or distributed for non-cash noncash consideration (whether or not at a discount), NET SALES shall be calculated based on the non-discounted nondiscounted amount of the LICENSED PRODUCT or LICENSED PROCESS charged to an independent third party during the same REPORTING PERIOD or, in the absence of such sales, on the fair market value of the LICENSED PRODUCT or LICENSED PROCESS Non-monetary PROCESS. Nonmonetary consideration shall not be accepted by COMPANY LICENSEE, any ASSOCIATE , or any AFFILIATE, SUBLICENSEE for any LICENSED PRODUCTS or LICENSED PROCESSES without the prior written consent of M.I.T. LICENSOR. Page 5 of 32 Exclusive Patent and Know-How Final License Agreement Confidential View More

Net Sales. Shall mean the gross amount billed by COMPANY and its AFFILIATES and SUBLICENSEES for LICENSED PRODUCTS and LICENSED PROCESSES, less the following: (i) customary trade, quantity, or cash discounts appropriate for that market segment to the extent actually allowed and taken; (ii) amounts repaid or credited by reason of rejection rejection, damaged goods, claims or shortages or return; (iii) to the extent separately stated on purchase orders, invoices, or other documents of sale, any taxes taxes,... tariffs, duties or other governmental charges levied on the production, sale, transportation, delivery, or use of a LICENSED PRODUCT or LICENSED PROCESS which is paid by or on behalf of COMPANY; and (iv) outbound transportation and freight costs prepaid or allowed and costs of insurance in transit. (v) bad debts provided that such debts do not exceed 2% of NET SALES where bad debts are defined as amounts billed but unpaid after 180 days. No deductions shall be made for commissions paid to individuals whether they be are with independent sales agencies or regularly employed by COMPANY and on its payroll, or for cost of collections. NET SALES shall occur on the date of billing for a LICENSED PRODUCT or LICENSED PROCESS. If a LICENSED PRODUCT or a LICENSED PROCESS is distributed at a discounted price that is substantially lower than the customary price charged by COMPANY, or distributed for non-cash consideration (whether or not at a discount), NET SALES shall be calculated based on the non-discounted amount of the LICENSED PRODUCT Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's application requesting confidential treatment under Rule 406 of the Securities Act. 3 or LICENSED PROCESS charged to an independent third party during the same REPORTING PERIOD or, in the absence of such sales, on the fair market value of the LICENSED PRODUCT or LICENSED PROCESS Non-monetary consideration shall not be accepted by COMPANY PROCESS. If COMPANY, any AFFILIATE, or any AFFILIATE, SUBLICENSEE accepts non-monetary consideration for any LICENSED PRODUCTS or LICENSED PROCESSES without PROCESSES, COMPANY shall: (i) calculate the prior fair market equivalent value for such non-monetary consideration, and (ii) add such value to the NET SALES figure used to calculate the royalty due in Section 4.1(c) in the REPORTING PERIOD, and (iii) include a written consent justification for such fair market equivalent value as part of the reporting required by Section 5.2(v). M.I.T. shall retain the right to dispute such justification as provided by Section 5.4 of this Agreement. View More

Net Sales. Means, with respect to the Product, the gross invoiced sales amount of the Products Product sold by MEDA ORADISC or its Affiliates to non-affiliate Third Parties, after deduction of the following items, to the extent that such deductions are reasonable and actually allowed, taken or incurred, and (provided that such items do not exceed reasonable and customary amounts in the country in which the sale occurred): (a) trade and quantity discounts, net of any give-backs received by MEDA ORADISC in... return; (b) refunds, rebates, governmental rebates, retroactive price adjustments, service allowances and broker's or agent's commissions; (c) credits or allowances given for rejection or return of previously sold Products Product or for wastage replacement actually taken or allowed; and (d) any tax, duties or government charge levied on the sale of Product and borne by MEDA ORADISC and/or its Affiliates (excluding national, state or local taxes based on income). Such amounts shall be determined from the books and records of MEDA ORADISC and its Affiliates maintained in accordance with generally accepted accounting principles, consistently applied. Sales of the Products Product by and between a Party and its Affiliates for further distribution to a Third Party are not sales to Third Parties and shall be excluded from Net Sales calculations for all purposes. View More

Net Sales. Means, with respect to the Product, the gross invoiced sales amount of the Products Product sold by MEDA MELMED HOLDING or its Affiliates to non-affiliate Third Parties, after deduction of the following items, to the extent that such deductions are reasonable and actually allowed, taken or incurred, and (provided that such items do not exceed reasonable and customary amounts in the country in which the sale occurred): (a) trade and quantity discounts, net of any give-backs received by MEDA MELMED HOLDING in return; (b) refunds, rebates, governmental rebates, retroactive price adjustments, service allowances and broker's or agent's commissions; (c) credits or allowances given for rejection or return of previously sold Products Product or for wastage replacement actually taken or allowed; and (d) any tax, duties or government charge levied on the sale of Product and borne by MEDA MELMED HOLDING and/or its Affiliates (excluding national, state or local taxes based on income). Such amounts shall be determined from the books and records of MEDA MELMED HOLDING and its Affiliates maintained in accordance with generally accepted accounting principles, consistently applied. Sales of the Products Product by and between a Party and its Affiliates for further distribution to a Third Party are not sales to Third Parties and shall be excluded from Net Sales calculations for all purposes. View More

Net Sales. Means, with respect to the Product, the gross invoiced sales amount of the Products Product sold by MEDA WYETH or its Affiliates to non-affiliate Third Parties, after deduction of the following items, to the extent that such deductions are reasonable and actually allowed, taken or incurred, and (provided that such items do not exceed reasonable and customary amounts in the country in which the sale occurred): (a) trade and quantity discounts, net of any give-backs received by MEDA WYETH in... return; (b) refunds, rebates, governmental rebates, retroactive price adjustments, service allowances and broker's or agent's commissions; (c) credits or allowances given for rejection or return of previously sold Products Product or for wastage replacement actually taken or allowed; and (d) any tax, duties or government charge levied on the sale of Product and borne by MEDA WYETH and/or its Affiliates (excluding national, state or local taxes based on income). Such amounts shall be determined from the books and records of MEDA WYETH and its Affiliates maintained in accordance with generally accepted accounting principles, consistently applied. Sales of the Products Product by and between a Party and its Affiliates for further distribution to a Third Party are not sales to Third Parties and shall be excluded from Net Sales calculations for all purposes. View More

Net Sales. Shall mean, with With respect to the any Product, the gross amount invoiced for the Product by Santen, its Affiliates and Sublicensees, if any, in arm's length sales to Third Parties, Parties for such Product, commencing with the First Commercial Sale, Sale of such Product, less deductions for: (i) trade, quantity and/or cash discounts, allowances and rebates actually allowed or given; (ii) freight, postage, shipping insurance and other transportation expenses (if separately identified in such... invoice); (iii) credits or refunds actually allowed for rejections, defects or recalls of such Product, outdated or returned Product, or because of rebates or retroactive price reductions; and (iv) sales, value-added, excise taxes, tariffs and duties, and other taxes directly related to the sale, to the extent that such items are included in the gross invoice price (but not including taxes assessed against the income derived from such sale). Such amounts shall be determined from the books and records maintained by Santen, of BMS, its Affiliates or its Sublicensees, as applicable. -3- maintained in accordance with the reasonable accounting principles used by such entity, consistently applied. View More

Net Sales. Shall mean, with respect to the Product, the gross amount invoiced for the Product by Santen, Kissei, its Affiliates and Sublicensees, if any, in arm's length sales to Third Parties, commencing with the First Commercial Sale, Sale of the Product, less deductions for: (i) trade, quantity and/or cash discounts, allowances and rebates actually allowed or given; (ii) freight, postage, shipping insurance and other transportation expenses (if separately identified in such invoice); (iii) credits or... refunds actually allowed for rejections, defects or recalls of such Product, outdated or returned Product, or because of rebates or retroactive price reductions; and (iv) sales, value-added, excise taxes, tariffs and duties, and other taxes directly related to the sale, to the extent that such items are included in the gross invoice price (but not including taxes assessed against the income derived from such sale). Such amounts shall be determined from the books and records maintained by Santen, Kissei, its Affiliates or Sublicensees, as applicable. -3- View More

Net Sales. The term "Net Sales" shall mean the end user gross amount invoiced received by Licensee, Licensee upon payment of invoice, or Sublicensees, its Affiliates and sublicensees, or any of them, on all sales of Licensed Products, less (a) (i) discounts actually given; (b) allowed; (ii) credits for claims, allowances, retroactive price reductions or returned goods; (c) (iii) prepaid freight; and (d) (iv) sales taxes or other governmental charges actually paid in connection with sales of Licensed... Products (but excluding what are commonly known as income taxes and value-added taxes). Net Sales shall include all consideration charged by Licensee taxes); and (v) refunds or Sublicensees in exchange for any Licensed Products, including without limitation any monetary payments or any other property whatsoever. rebates actually paid. For purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice therefore shall be generated and payment received by Licensee, or the Licensed Product shipped for delivery. its Affiliates and sublicensees or any of them. Sales of Licensed Products by Licensee, or an Affiliate or sublicensee of Licensee to any Affiliate or Sublicensee or by any Sublicensee to an Affiliate or other Sublicensee sublicensee which is a reseller thereof shall be excluded from calculating Net Sales, excluded, and only the subsequent sale of such Licensed Products by such Affiliates or Sublicensees sublicensees of Licensee to unrelated parties shall be deemed Net Sales hereunder. View More

Net Sales. The term "Net Sales" shall mean the gross amount invoiced by Licensee, or Sorrento, all Sublicensees, or any of them, on all sales of Licensed Products, less (a) customary discounts actually given; allowed; (b) credits for claims, allowances, retroactive price reductions or returned goods; (c) prepaid freight; and (d) sales taxes or other governmental charges actually paid in connection with sales of Licensed Products (but [but excluding what are commonly known as income taxes (whether paid by... Sorrento/ Sublicensee or withheld by the third party at source) and value-added taxes). taxes]. Net Sales shall include all consideration charged by Licensee or Sorrento and Sublicensees in exchange for any Licensed Products, including without limitation any monetary payments or any other property consideration whatsoever. For purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice therefore shall be generated or the Licensed Product shipped for delivery. Sales of Licensed Products by Licensee Sorrento to any Affiliate or Sublicensee or by any Sublicensee to an Affiliate or other Sublicensee which is a reseller thereof shall be excluded from calculating Net Sales, and only the subsequent sale of such Licensed Products by such Affiliates or Sublicensees to unrelated parties shall be deemed Net Sales hereunder. View More

Net Sales. The gross amount billed or invoiced on sales of Licensed Products by Company, Company and its Affiliates and Sublicensees, Sublicensees of Licensed Products, less the following: (a) customary trade, quantity, or cash discounts and commissions to non-affiliated brokers or agents to the extent actually allowed and taken; (b) amounts repaid or credited by reason of rejection or return; (c) to the extent separately stated on purchase orders, invoices, outbound transportation costs prepaid or other... documents allowed and costs of sale, insurance in transit; (d) any taxes or other governmental charges levied on the production, sale, transportation, delivery, or use of a Licensed Product which is paid by or on behalf of Company; and (d) outbound transportation costs prepaid Company, all to the extent separately stated on purchase orders, invoices, or allowed and costs other documents of insurance in transit. sale. In any transfers of Licensed Products between any of Company and Affiliates and Sublicensees, an Affiliate or Sublicensee, Net Sales are shall be calculated based on the final sale of the Licensed Product to an independent third party. If In the event that Company or an Affiliate or Sublicensee receives non-monetary consideration for any Licensed Products, Net Sales are shall be calculated based on the fair market value of that such consideration. If Company or its Affiliates or Sublicensees use or dispose of a Licensed Product in the provision of a commercial service, the Licensed Product is sold and the Net Sales are calculated based on the sales price of the Licensed Product to an independent third party during the same Royalty Period or, in the absence of sales, on the fair market value of the Licensed Product as determined by the parties in good faith. View More

Net Sales. The gross amount billed or invoiced on sales of Licensed Products by Company, Company and its Affiliates and Sublicensees, Sublicensees of Licensed Products, less the following: (a) customary trade, quantity, or cash discounts and commissions to non-affiliated brokers or agents to the extent actually allowed and taken; (b) amounts repaid or credited by reason of rejection or return; (c) to the extent separately stated on purchase orders, invoices, outbound transportation costs prepaid or other... documents allowed and costs of sale, insurance in transit; (d) any taxes or other governmental charges levied on the production, sale, transportation, delivery, or use of a Licensed Product which is paid by or on behalf of Company; and (d) outbound transportation costs prepaid Company, all to the extent separately stated on purchase orders, invoices, or allowed and costs other documents of insurance in transit. sale. In any transfers of Licensed Products between any of Company and Affiliates and Sublicensees, an Affiliate or Sublicensee, Net Sales are shall be calculated based on the final sale of the Licensed Product to an independent third party. If In the event that Company or an Affiliate or Sublicensee receives non-monetary consideration for any Licensed Products, Net Sales are shall be calculated based on the fair market value of that such consideration. If Company or its Affiliates or Sublicensees use or dispose of a Licensed Product in the provision of a commercial service, the Licensed Product is sold and the Net Sales are calculated based on the sales price of the Licensed Product to an independent third party during the same Royalty Period or, in the absence of sales, on the fair market value of the Licensed Product as determined by the parties in good faith. View More

Net Sales. The Shall mean the gross amount billed or invoiced on sales of Licensed Products by Company, its Affiliates and Sublicensees, Sublicensees of Licensed Product, less the following: (a) (i) customary trade, quantity, or cash discounts and commissions to non-affiliated brokers or agents to the extent actually allowed and taken; (b) (ii) amounts repaid or credited by reason of rejection or return; (c) (iii) to the extent separately stated on purchase orders, invoices, or other documents of sale,... any taxes or other governmental charges levied on the production, sale, transportation, delivery, or use of a Licensed Product which is paid by or on behalf of Company; (iv) duties; and (d) (v) outbound transportation costs prepaid or allowed and costs of insurance in transit. In any transfers of Licensed Products Product between any of Company and Affiliates and Sublicensees, an Affiliate or Sublicensee, Net Sales are shall be calculated based on the final sale of the Licensed Product to an independent third party. If In the event that Company or an Affiliate or Sublicensee receives non-monetary consideration for any Licensed Products, Product, Net Sales are shall be calculated based on the fair market value of such consideration. In the event that consideration. If Company or its Affiliates or Sublicensees use or dispose of a Licensed Product in the provision of a commercial service, the Licensed Product is shall be considered sold and the Net Sales are shall be calculated based on the sales price of the Licensed Product to an independent third party during the same Royalty Period or, in the absence of such sales, on the fair market value of the Licensed Product as determined by the parties in good faith. [*] designates portions of this document that have been omitted pursuant to a request for confidential treatment filed separately with the Commission. 2 1.6. View More

Net Sales. Shall mean the gross revenue accrued by Fuso or its Affiliates or Sublicensees for all Collaboration Products sold by Fuso and its Affiliates and Sublicensees Sublicenses in arm's length sales to bona fide independent third parties, and for any and all services related to the Collaboration Products performed by or on behalf of Fuso or its Affiliates and Sublicensees, *. less to the extent included in the invoice price: (1) ordinary and customary trade discounts actually allowed; (2) credits,... rebates and returns (including, but not limited to, wholesaler and retailer returns); (3) freight, postage and duties paid for and separately identified on the invoice or other documentation maintained in the ordinary course of business, and (4) excise taxes, other consumption taxes, customs duties and compulsory payments to governmental authorities actually paid and separately identified on the invoice or other documentation maintained in the ordinary course of business. Net Sales shall also include *. the fair market value of all other consideration received by Fuso or its Affiliates or permitted Sublicensees in respect of any grant of rights to make, use, sell or otherwise distribute Collaboration Products, whether such consideration is in cash payment in kind, exchange or another form. In the case of * discounts on "bundles" of products or services which include Collaboration Products, Fuso may with notice to GenVec * discount the bona fide list price of a Collaboration Product by the average percentage * discount of all products of Fuso and/or its Affiliates or Sublicensees in a particular "bundle," "bundle", calculated as follows: * -4- [eszett] Average percentage A [eszett] discount on a = (1- --- ) x 100 [eszett] particular "bundle" B where A equals the *, total discounted price of a particular "bundle" of products, and B equals the * sum of the undiscounted bona fide list prices of each unit of every product in such "bundle." "bundle". Fuso shall provide GenVec documentation, reasonably acceptable to GenVec, establishing such average * discount with respect to each "bundle." "bundle". If Fuso cannot so establish the average * discount of a "bundle," "bundle", Net Sales shall be based on the * undiscounted list price of the Collaboration Product in the "bundle." "bundle". If a Collaboration Product in a "bundle" is not sold separately and no bona fide list price exists for such Collaboration Product, the parties *. shall negotiate in good faith an imputed list price for such Collaboration Product and Net Sales with respect thereto shall be based on such imputed list price. View More

Net Sales. Shall mean, the amount invoiced by Specialty Laboratories, their Affiliates or sub-licensees to Third Parties for the TaqMan Assay utilizing Collaboration Epoch Probes or for any Collaboration Specialty Laboratories Product (i) less cash discounts and/or quantity discounts allowed, (ii) less sales and use taxes, duties or other government tariffs and other similar taxes incurred and government mandated rebates, (iii) less accruals for estimated contract rebates, bid rebates, Medicaid rebates... and any other similar rebates as Specialty Laboratories may be required to pay from time to time, and (iv) in the event that Specialty Laboratories must make royalty payments to third parties under licenses for polymerase chain reaction ("PCR") technology in respect of any patents that are necessary (in the reasonable judgment of the party paying such royalties) to develop, make, have made, use, sell, have sold or import a Collaboration Specialty Laboratories Product (a "Third Party Royalty"), then less such Third Party Royalty, provided that in no event shall such reduction be more than [***]* of the amount invoiced by Specialty Laboratories for such Collaboration Specialty Laboratories Product. [***]*. All of the foregoing shall be determined in accordance with standard accounting methods. View More

Net Sales. Shall mean, with respect to any Product, the gross amount invoiced for such Product by SGI, NeoTherapeutics, its Affiliates, and sublicensees to Third Parties, less deductions for: (i) trade, quantity 2 and/or cash discounts, allowances and rebates (including, without limitation, promotional or similar allowances) actually allowed or given; (ii) freight, postage, shipping, insurance and transportation expenses and similar charges (in each instance, if separately identified in such invoice);... (iii) credits or refunds actually allowed for rejections, defects or recalls of such Product, outdated or returned Product, or because of rebates or retroactive price reductions; and (iv) sales, value-added, excise taxes, tariffs and duties, and other taxes directly related to the sale, to the extent that such items are included in the gross invoice price (but not including taxes assessed against the income derived from such sale). Such amounts shall be determined from the books and records of SGI, NeoTherapeutics, its Affiliates or its sublicensees, maintained in accordance with the reasonable accounting principles used by such entity, consistently applied. In the event that a Product is sold as part of a Combination Product (as defined below), the Net Sales from the Combination Product, for the purposes of determining royalty payments, shall be determined by multiplying the Net Sales of the Combination Product (calculated using the standard Net Sales definition) during the applicable royalty reporting period by the fraction A/A+B, where A is the average sale price of the Product when sold separately in finished form and B is the 2 average sale price of the other product(s) included in the Combination Product when sold separately in finished form, in each case during the applicable royalty reporting period or, if sales of both the Product and the other product(s) did not occur in such period, then in the most recent royalty reporting period in which sales of both occurred. In the event that such average sale price cannot be determined for both the Product and all other product(s) included in the Combination Product, Net Sales for the purposes of determining royalty payments shall be calculated by multiplying the Net Sales of the Combination Product (calculated using the standard Net Sales definition) by the fraction C/C+D, where C is the fair market value of the Product and D is the fair market value of all other pharmaceutical product(s) included in the Combination Product. In such event, SGI NeoTherapeutics shall in good faith make a determination of the respective fair market values of the Product and all other pharmaceutical products included in the Combination Product, and shall notify BMS of such determination and provide BMS with data to support such determination. BMS shall have the right to review such determination and supporting data, and to notify SGI if it data. If BMS disagrees with such determination. determination, BMS shall notify NeoTherapeutics of such disagreement within 30 days following receipt by BMS of the fair market values determination made by NeoTherapeutics. If the Parties cannot reach agreement as to fair market values within 30 days from the date upon of BMS advises NeoTherapeutics of the disagreement as to fair market values, an independent expert shall be selected by NeoTherapeutics with the consent of BMS (which consent will not be unreasonably withheld) to make the determination of fair market values. The independent expert shall render a determination within 10 days of appointment. As used above, the term "Combination Product" shall mean any pharmaceutical product which comprises the Product and any other active compounds and/or ingredients. View More

Net Sales. Shall mean the gross amounts received by CombinatoRx and its Affiliates (but not or their respective Licensees) Licensees for sales of Products approved in the Field to Third Parties that are not Affiliates or Licensees of the selling party (unless such Affiliate or Licensee is the end user of such Product, in which case the amount billed therefor shall be deemed to be the amount that would be billed to a Third Party end user in an arm's-length transaction), less the following items, as... allocable to such Product (if not previously deducted from the amount invoiced): (i) trade discounts, credits or allowances; (ii) credits or allowances additionally granted upon returns, rejections or recalls; (iii) freight, shipping and insurance charges; (iv) taxes, duties or other governmental tariffs (other than income taxes); and (v) government mandated rebates. Net Sales shall not include royalties or any other payments received by CombinatoRx or its Affiliates or their respective Licensees from any of their respective Licensees. View More

Net Sales. Means the gross amount billed or invoiced received on sales by Company DVC and its Affiliates and Sublicensees of Licensed Products and Licensed Services, Products, less the following: (a) (i) customary trade, quantity, or cash discounts and commissions to non-affiliated brokers or agents to the extent actually allowed and taken; (b) and (ii) amounts repaid or credited by reason of rejection or return; (c) (iii) to the extent separately stated on purchase orders, invoices, or other documents of... sale, any taxes or other governmental charges levied on the production, sale, transportation, delivery, or use of a Licensed Product or Licensed Service which is paid by or on behalf of Company; DVC; and (d) (iv) outbound transportation costs prepaid or allowed and costs of insurance in transit; and (e) allowance for bad debt that is customary and reasonable for the industry and in accordance with generally accepted accounting principles. Notwithstanding anything to the contrary in this Section 1.8, Net Sales does not include sales of Licensed Products at or below the fully burdened cost of manufacturing solely for research or clinical testing or for indigent or similar public support or compassionate use programs. transit. In any transfers of Licensed Products between Company DVC and its an Affiliate or Sublicensee, Net Sales are shall be calculated based on the final sale of the Licensed Product to an independent third party. If Company In the event that DVC or its an Affiliate or a Sublicensee receives non-monetary consideration for any Licensed Products or Licensed Services, Products, Net Sales are shall be calculated based on the fair market value of such consideration. In the event that consideration. If Company DVC or its Affiliate Affiliates or its Sublicensees use or dispose of a Licensed Product in the provision of a commercial service other than a Licensed Service, service, the Licensed Product is shall be considered sold and the Net Sales are shall be calculated based on the sales price of the Licensed Product to an independent third party during the same Royalty Period or, in the absence of such sales, on the fair market value of the Licensed Product as determined by the parties in good faith. -2- In the case of Combination Products, Net Sales means the gross amount billed or invoiced on sales of the Combination Product less the deductions set forth above, multiplied by a proration factor that is determined as follows: (i) If all components of the Combination Product were sold separately during the same or immediately preceding Royalty Period, the proration factor shall be determined by the formula [A / (A+B)], where A is the aggregate gross sales price of all Licensed Product components during such period when sold separately from the other essential functional components, and B is the aggregate gross sales price of the other essential functional components during such period when sold separately from the Licensed Product Components; or (ii) If all components of the Combination Product were not sold separately during the same or immediately preceding Royalty Period, the proration factor shall be determined by the formula [C / (C+D)], where C is the aggregate fully absorbed cost of the Licensed Product components during the prior Royalty Period and D is the aggregate fully absorbed cost of the other essential functional components during the prior Royalty Period, with such costs being determined in accordance with generally accepted accounting principles. 3 1.9. View More