This excerpt taken from the PDLI 10-Q filed May 5, 2009.
7.1 Pricing. The purchase price for Products (including Transition Products) shall equal [****]* of GMNs Fully Burdened Costs therefor. The Preliminary Purchase Price for the Initial Purchase Order, Second Purchase Order, Third Purchase Order and the Engineering Runs is set forth in Annex E. The Preliminary Purchase Price for each batch of Transition Product shall be equal to [****]*. By way of example, but not by limitation, if the GMN Completion Percentage for a batch of Transition Product is [****]* percent [****]*, the Preliminary Purchase Price for that batch shall be US$[****]*. All other services rendered by GMN to PDL under this Agreement or costs to be reimbursed, refunded or otherwise finally borne by PDL in accordance with this Agreement shall be paid by PDL at a price equal to [****]* of GMNs Fully Burdened Costs therefore.
7.2 Invoicing; Payment. GMN shall be entitled to invoice PDL for Product as follows:
provided, however, that [****]* of the purchase price related to Raw Materials (unless such Raw Materials are provided by PDL [****]* ) may in any event be invoiced [****]* before the anticipated Out of Freeze Date set forth in the accepted purchase order.
Furthermore, if for any reason, other than GMNs gross negligence or willful misconduct or, GMNs failure to follow the procedures set forth in the Technical Information after [****]* Successful Batches, other than non-material deviations from the Technical Information, PDL instructs GMN to cancel the manufacture of a batch under an accepted purchase order, GMN may invoice the full Preliminary Purchase Price at the date of such decision, which shall be non-refundable.
GMN shall prepare a final statement of the actual purchase price and send to PDL a final invoice or credit note, as applicable, with regard to the balance between the Preliminary Purchase Price and the final purchase price, provided that in no event shall the final purchase price exceed [****]* of GMNs Fully Burdened Costs therefor. GMN shall use Commercially Reasonable Efforts to send such final invoice or credit note to PDL within [****]*, but in no event later than [****]*, of PDLs receipt of the final certificate of analysis for the applicable Product. Such final invoice or credit note shall be accompanied by detailed supporting documentation setting forth the basis for the final invoice and reasonably acceptable to PDL.
With respect to other services to be rendered to PDL or costs to be reimbursed, refunded or otherwise finally borne by PDL, GMN shall be entitled to invoice PDL on [****]*. PDL shall pay, or cause to be paid, such invoice within [****]* after receipt of the invoice.
All invoices shall be sent to the address specified in the applicable purchase order. PDL shall pay, or cause to be paid, all invoices within [****]* after receipt. Subject to Section 7.5 all payment by PDL shall be made without deduction, deferment, set-off, lien or counterclaim of any nature.
7.3 Currency; Late Payments. All amounts due hereunder are stated in, and shall be paid in, U.S. dollars. The rate of interest applicable to late payments is [****]*. Interest due for late payments shall be calculated [****]*.
7.4 Books and Records. GMN shall keep, and shall cause its Affiliates to keep, complete and accurate books of accounts of record in connection with its manufacture and supply of Product to permit verification of payments made and the obligations owed hereunder. Such records shall be maintained for a period of at least (i) [****]* from the date on which they were generated; or (ii) as otherwise required by applicable Law, which ever is later.
7.5 Audit Rights. PDL shall have the right to have an independent nationally-recognized accounting firm reasonably acceptable to GMN access the books and records of GMN and its Affiliates solely to the extent necessary to verify GMNs Fully Burdened Cost described in Section 7.1. Such audit shall be conducted upon at least [****]* advanced written notice to GMN and shall commence on a date reasonably acceptable to both Parties, not to be later than [****]* after PDLs notice. Such audit shall only be during GMNs normal business hours. Such audit shall not be more frequent than [****]*, may occur only with respect to the immediately preceding [****]*, may not audit less than [****]*, and may not be conducted more than [****]* with respect to any particular [****]*. The auditing party shall be
required to sign a confidentiality agreement for the benefit of, and in a form reasonably acceptable to, GMN and/or its Affiliates. GMN shall be provided the opportunity to discuss any discrepancies found during such audit with the auditors prior to such auditor issuing its final report. The final report shall be shared with both of the Parties, after PDL has reviewed and discussed the report with its accounting firm. If any audit discloses any underpayments by PDL to GMN, then unless contested by PDL within [****]* after receipt of the necessary documentation of the amount owed, any underpayment shall be paid by PDL to GMN within [****]* of it being so disclosed. If any audit discloses any overpayments by PDL to GMN, then unless contested by GMN within [****]* after receipt of the necessary documentation of the amount owed, PDL shall have the right to credit the amount of the overpayment together with any interest thereon calculated in accordance with Section 7.3, against subsequent payment due to GMN under this Agreement or have any such overpayment and interest refunded to it. If any audit discloses any overcharges by GMN in excess of [****]*, GMN shall pay the costs of the accounting firm.
This excerpt taken from the PDLI 8-K filed Dec 23, 2008.
3.1 Fees. Except as explicitly stated in Schedule B for certain Facet Services, in consideration of Services performed pursuant to this Agreement, the Parties shall pay the applicable fees (individually a Fee and collectively the Fees) as follows:
(a) by PDL to Facet, at $125.00/hour/person for the time spent by employees within Facet performing the Facet Services; and
(b) by Facet to PDL, at $125.00/hour/person for the time spent by employees within PDL performing the PDL Services.
3.2 Payment Procedures. If Fees are payable pursuant to Section 3.1:
(a) Service Provider shall invoice Service Recipient on a monthly basis for all Fees accrued with respect to the prior month. Fees shall be payable by Service Recipient within thirty (30) days after Service Recipients receipt of an invoice (the Due Date). All amounts (i) payable pursuant to the terms of this Agreement shall be paid to Service Provider as directed by Service Provider, and (ii) due and payable hereunder shall be invoiced and paid in U.S. dollars, except as may be expressly provided in any relevant Schedule. A Service Recipients obligation to make any required payments under this Agreement shall not be subject to any unilateral right of offset, set-off, deduction or counterclaim, however arising.
(b) Default Interest Rate. Subject to the provisions of Section 3.2(c), amounts not paid on or before the Due Date shall be payable with accrued interest thereon, from the date originally due, at the annual rate announced by the Bank of America (or any successor) as its prime rate in effect on the date that such payment was first due plus two percent (2%).
(c) Disputes. In the event that Service Recipient disputes the accuracy of any invoice or portion thereof, Service Recipient shall provide Service Provider on or prior to the Due Date written notice of the disputed amounts, together with a statement of the particulars of the dispute. Should Service Recipient fail to provide notice of any disputed amounts on or before the Due Date, the amounts set forth on the invoice shall be owed with interest at the Default Interest Rate from the Due Date until payment is received. Should Service Recipient provide the required information on or before the Due Date, Service Provider shall have thirty (30) days following receipt of the required information to reject Service Recipients modified invoice (or portion thereof) by providing Service Recipient notice of such rejection within such 30-day period. Should Service Provider fail to provide such notice within the time period allowed, Service Recipients modified invoice (or portion thereof) shall be deemed to be the correct invoice. Should Service Provider provide the required notice within such 30-day period,
resolution of the disputed invoice shall be in accordance with the provisions of Article 11 hereof. If Service Recipient has underpaid the amount actually due, Service Recipient shall remit to the Service Provider, within five (5) business days after receipt of the determination from Service Provider, any amount due plus interest at the Default Interest Rate from the Due Date until paid. Notwithstanding any disputed invoice or portion thereof, Service Recipient shall nevertheless pay when due any undisputed amount of such invoice to Service Provider.
3.3 Taxes. If any Governmental Entity shall impose a tax on the Services rendered to a Service Recipient or its Subsidiaries by Service Provider hereunder, Service Recipient agrees to pay, or remit to Service Provider so that Service Provider may pay, the amount of such tax imposed now or in the future on the Services rendered to Service Recipient or its Subsidiaries by Service Provider under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Service Recipient shall have no liability for, and shall not be obligated to pay for, any property taxes of any kind or type applicable to the property of Service Provider or any of its Subsidiaries or any income taxes of any kind or type applicable to the income of Service Provider or any of its Subsidiaries, except as may be expressly provided in any relevant Schedule.
3.4 Expenses. In addition to the payment of all Fees, at the end of each month during the Services Term, Service Recipient shall reimburse Service Provider for all reasonable out-of-pocket costs and expenses incurred by Service Provider or its Subsidiaries in connection with providing the Services (including pass-through costs for third party contractors and travel-related expenses). Any travel-related expenses incurred in performing the Services shall be incurred and charged to Service Recipient in accordance with Service Providers then applicable business travel policies.