“Progress Report” means a written report summarizing Licensee’s material technical and other efforts made towards First Commercial Sale for all Licensed Products under development. Such reports will include, without limitation, reasonably detailed summaries of: (i) development and commercialization of Licensed Products; (ii) collaborations with third parties and sublicensing efforts; (iii) progress toward completing milestones described in the Principal Terms & Milestones List; (iv) key management changes and total number of employees; (v) Licensee’s finances; (vi) scientific and business goals for the next year; (vii) summary of any payments due under ARTICLE IV; and (viii) any other company information which may materially adversely impact Licensee’s ability to develop Licensed Product.
3. Representations and Due Diligence
3.01 Licensee Representations. Licensee represents and warrants to University at all times that:
(F) Progress Reports. Licensee will submit a Progress Report to University on or before each March 15th during the Term of this Agreement provided however that if the Effective Date of this Agreement occurs during the period from November 1 to March 15, inclusive, Licensee’s first Progress Report will not be due until the next March 15 following said period;
(A) Licensee will meet or accomplish each of the Milestones by its Milestone Date and will notify the University in writing when each Milestone is met.
(B) Notwithstanding Section 3.03(A), if Licensee learns that it will not meet a Milestone by its Milestone Date because of delay caused by the FDA or another relevant regulatory authority, Licensee shall notify the University and describe the nature of the delay and the expected time to meet the Milestone. If the University takes no action under Section 3.04 and 9.02(A) before the Milestone is achieved, then the subsequent Milestone Dates will be extended by the amount of time between the original Milestone Date and the date it was actually achieved.
4. Royalties and Payments
4.01 Royalties. In consideration for the license and rights granted under this Agreement, Licensee will: 1) execute and deliver to University all documents (as appropriate); and 2) promptly pay all of the following royalties (collectively, the “Royalties”) and/or fees to the University:
(H) Board Observation Rights. Licensee will, concurrent with its execution and delivery of this Agreement to University, execute and deliver to University a Board Observation Rights Letter Agreement pertaining to board observer rights for the University.
5. Reports, Records and Audit
5.01 Books & Records. Licensee will keep, in accordance with generally accepted accounting principles, up-to-date, complete, true and accurate books of account in sufficient detail to permit calculation of all amounts due hereunder, including without limitation, copies of all invoices, which will be properly itemized. Such books of account will be maintained at Licensee’s principal place of business (or at its election, the principal place of business of the division of Licensee to which this Agreement relates) and Licensee will inform the University in writing of the location of such books and records within two (2) business days of a request for such location.
5.02 Quarterly Reports.
(a) Within forty-five (45) days after the end of each Calendar Quarter during the Term (without regard to whether any payments are due to the University in respect of such quarter), Licensee will deliver to the University, a complete and accurate report which will contain the following:
(i) identification of all Sublicenses related to the Patent Rights and/or Copyright [DELETE IF NO COPYRIGHT] entered into during such quarter, together with a summary of the principal economic terms of each;
(ii) a summary of those activities of Licensee and its Permitted Sublicensees directed toward promoting the sale and use of the Licensed Products and Licensed Processes; and
(iii) identification of all Milestone Dates occurring during such quarter and an indication of whether the corresponding Milestone was met (and if not, a summary of the progress as of the end of such quarter and projected completion dates); and
(b) Only after the First Commercial Sale by Licensee and/or its Permitted Sublicensee(s) that gives rise to royalties or fees under 4.01(D) or 4.01(E), within forty-five (45) days after the end of each Calendar Quarter during the Term, Licensee will deliver to the University, a complete and accurate report which will contain the following:
(i) the number of each type of: 1) Licensed Product made, used, leased sold or offered for sale or imported; and/or 2) Licensed Process (as appropriate) practiced by Licensee and/or a Permitted Sublicensee during such quarter;
(ii) the total amount of Net Sales during such quarter; and
(iii) calculations of each amount due under this Agreement in respect of such quarter, including without limitation, deductions applicable to Net Sales.
The reports described in this Section 5.02 are each referred to herein as a “Quarterly Report”. To the extent feasible, all said Quarterly Reports will accompany, or be sent to University concurrently with, the payment of royalties under Sections 4.01(D) and 4.01(E). If Licensee elects to wire transfer payments to University, the Quarterly Report will be transmitted to University in accordance with Section 11.07 on that same day that the wire transfer is made. If properly marked, a Quarterly Report will be considered Licensee Confidential Information under this Agreement.
5.03 Annual Reports. Within ninety (90) days after the end of Licensee’s Fiscal Year, Licensee will provide to the University a copy of its financial statements for such year, certified as to their completeness and accuracy by Licensee’s chief financial officer. Licensee will also provide to the University written evidence of the annual renewal of insurance within thirty (30) days of such renewal. Notwithstanding the foregoing, the obligations contained in this Section 5.03 which pertain to financial statements will terminate upon the consummation of the Licensee’s Initial Public Offering.
5.04 Other Reports. Promptly upon written request of the University or as otherwise required by the terms of this Agreement, Licensee will provide to the University any annual report to stockholders of Licensee or, if there is no annual report to stockholders, annual updates to the Business Plan and Commercialization Plan, including any changes to the management team. Licensee will also promptly provide to University all relevant notices consistent with the Board Observer Rights Letter Agreement.
5.05 Audit. The University may, upon five (5) business days advance written notice specifying any time of day during Licensee’s business hours (or if Licensee has no set business hours then during the hours of 8AM to 4PM), either itself or using a third party agent, audit Licensee’s books and records at Licensee’s place of business for the purpose of verifying Licensee’s reports and compliance by Licensee in all other respects with this Agreement. In no event shall such audits be conducted hereunder more frequently than once every twelve (12) months and in no case shall University be permitted to repeat an audit of books for a period previously audited unless Licensee has undergone a restatement of its records for that period. Notwithstanding the foregoing, Licensee will grant University, or its auditor, access to all of Licensee’s records for all prior periods to the extent necessary to perform a proper audit. If any audit identifies an underpayment by Licensee, Licensee will promptly pay the underpayment to University including interest as provided for in Section 4.03. If any audit identifies an overpayment by Licensee, Licensee may deduct such overpayment from the next scheduled payments due University until such overpayment has been recovered by Licensee. If any audit leads to the discovery of an underpayment in respect of any Calendar Quarter of more than five percent (5%) between amounts due in respect of such quarter and amounts reported to be due by Licensee in its quarterly report for such quarter or otherwise reveals a previously undisclosed material breach of this Agreement, Licensee will, within thirty (30) days after written notice from the University, reimburse the University for all of its costs related to the audit. Otherwise, any audit will be at the University’s expense. Licensee will, in any event and without regard to the size of the discrepancy, immediately pay to the University the amount of any previous underpayment, including interest from the time such amount was due until paid in full in accordance with Section 4.03. Any audit conducted pursuant to this Section 5.05 will be conducted, at University’s option, by the University itself or by an auditor selected by University and reasonably acceptable to the Licensee. For the avoidance of any doubt, University’s right to audit books under this Section 5.05 applies to all Affiliates that sell Licensed Products or practice Licensed Processes and to all Permitted Sublicensees to the same extent that it applies to Licensee. Failure by Licensee, an Affiliate or a Permitted Sublicensee to permit University to conduct an audit as set forth in this Section 5.05 will immediately give University the right to suspend the non-compliant party’s rights under the Patent Rights and/or Copyright [DELETE IF NO COPYRIGHT] until such time as said party becomes compliant with this Section 5.05. University’s right to audit Licensee’s books in accordance with this Section 5.05 will extend for three (3) years after the expiration or termination of this Agreement for any reason. With respect to any University’s rights under a continuing Sublicense under Section 2.03(A) and 2.03(E), University’s right to audit the Sublicensee’s books will extend for three (3) years after the expiration or termination of said Sublicense for any reason.