Amendment and Restatement of Section 6.5 of the Agreement
Section 6.5 is hereby amended and restated, such that the current provision is deleted and the following is substituted in its place as of the date hereof:
6.5
Exclusivity Milestone Payments . In addition to the milestone payments in Section 6.4 above, Par shall make the following milestone payments to IPC, in respect of the 5, 10, 15 and 20mg strengths only, on a strength-by-strength, one time per strength basis, in the event Par makes a Commercial Launch with a Generic of the Brand Product (whether under the IPC ANDA or Par ANDA) or Authorized Generic Product in any such strength:
6.5.1
In the event that such product is the only Generic of the Brand Product or Authorized Generic Product in that strength commercially sold in the Territory (i.e., there is no Generic of the Brand Product or Authorized Generic Product in that strength commercially sold in the Territory other than that sold by or on behalf of Par or a Par Affiliate pursuant to the Agreement) for a number of days (N1) up to one hundred and eighty (180) days during the period commencing on the Commercial Launch of that strength and terminating one hundred and eighty (180) days later, then Par will pay to IPC the fraction of [ *] Dollars ($ [ *] ) that N1 is to 180. Such payment shall be due upon the later of (i) one hundred and eighty (180) days following the Commercial Launch of that strength, or (ii) a non-appealable decision from an appellate court ruling or a district court ruling from which an appeal can no longer be sought of non-infringement or invalidity in favor of Par in a patent litigation regarding that strength of the Product between IPC and/or Par and the owner and/or marketer of the Brand Product.
6.5.2
In the event that there is no more than a single third party competitor to such product in the Territory (i.e., there is no more than a single Generic of the Brand Product or Authorized Generic Product in that strength commercially sold in the Territory by a third party other than that sold by or on behalf of Par or a Par Affiliate pursuant to the Agreement) for a number of days (N2) up to one hundred and eighty (180) days during the period commencing on the Commercial Launch of that strength and terminating one hundred and eighty (180) days later, then Par will pay to IPC the fraction of [ *] Dollars ($ [ *] ) that N2 is to 180. Such payment shall be due upon the later of (i) one hundred and eighty (180) days following the Commercial Launch of that strength, or (ii) a non-appealable decision from an appellate court ruling or a district court ruling from which an appeal can no longer be sought of non-infringement or invalidity in favor of Par in a patent litigation regarding that strength of the Product between IPC and/or Par and the owner and/or marketer of the Brand Product. For the avoidance of doubt, the payments contemplated herein at subsections 6.5.1 and 6.5.2 are cumulative on a strength-by-strength basis, provided that the sum of N1+N2 for any one strength shall not exceed 180 days commencing from the Commercial Launch of that strength.
