5 COMPANY RESPONSIBILITIES.

in the event that an Invoicing Entity receives non-cash consideration for any Products or in the case of transactions not at arm’s length with a non-Affiliate of an Invoicing Entity, Net Sales will be calculated based on the fair market value of such consideration or transaction, assuming an arm’s length transaction made in the ordinary course of business;

Pricing. Evelo shall be entitled to credit 100% of the fees paid by Evelo pursuant to Section 3.3 when paid upfront or as a prepayment for the applicable Run against any corresponding payments due for such Run. For clarity, the Run fees include the manufacture of Product by Biose but not any raw materials.

AYTU shall have final decision-making authority for determining the selling price for the Product in the Territory. If either # during the period beginning on or after the Effective Date and ending on December 31, 2019 the WAC price of Tuzistra XR increases by a cumulative amount greater than ​ above the WAC price immediately prior to the Effective Date, which was ​ for a ​ bottle (whether through one or more price changes) or # during the period beginning January 1, 2020 and ending May 31, 2020 AYTU increases the WAC price of Tuzistra XR by a cumulative amount greater than ​ above the WAC price as of December 31, 2019 (whether through one or more price changes), and such increase results in an increase in rebates relating to or returns of Product sold prior to the Effective Date, as demonstrated by TRIS or the Former Owner providing evidence of such to AYTU (and having regard to historic rebate and return levels), then AYTU shall be liable to reimburse TRIS (or at TRIS’ election the Former Owner) promptly (and in any event within 10 Business Days of TRIS or the Former Owner providing evidence to AYTU) for these increased costs (measured by the excess of the increase such costs over what such increase would have been had the WAC price increase been limited to ​ during the period specified in [clause (a) or (b) of this Section 4.5], as applicable) incurred by TRIS or the Former Owner as a consequence of such increased rebates and returns. For example, if the WAC price at the Effective Date or at May 31, 2019, as applicable, is ​ per bottle and the WAC price increases ​ to ​ (as opposed to ​) during the period specified in [clause (a) or (b) of this Section 4.5], as applicable, then if ten bottles are returned at ​, AYTU would owe ​.

Pricing. The initial price for Hemp Extracts shall, at all times during the Term, be at Tier 1 pricing levels of Supplier with the initial pricing as set forth in Exhibit 1 which must be competitive with market prices for similar Hemp Extracts. Notwithstanding any other provision of this Agreement, in the event for any reason the Supplier is unable to meet the production requirements of Buyer, the Supplier agrees to source the required supply of Hemp Extracts from third parties to be delivered to Buyer at fair market prices. Alternatively, the Buyer will have the right to purchase oil from alternate suppliers. In such event that Supplier needs to source Hemp Extracts from third parties to meet the requirements of Buyer, such event shall not modify the exclusive nature of this Agreement.

Pricing. The interest rate, fees and original issue discount for any Incremental Term Loans will be as determined by the ​ and the Persons providing such Incremental Term Loans; provided that in the event that the All-In Yield applicable to any Incremental Term Loans (other than any Excluded Incremental Term Loan (as defined below)) that are incurred during the first six months following the Closing Date and are secured on a pari passu basis with the Initial Term Loans exceeds the All-In Yield (taking into account the leverage-based pricing grid therein and any comparable leverage-based pricing grid applicable to such Incremental Term Loans) for the Initial Term Loans by more than 75 basis points, then the interest rate margins for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Term Loans is equal to the All-In Yield for such Incremental Term Loans minus 75 basis points. “Excluded Incremental Term Loan” means any # Incremental Term Loans incurred in reliance on the Ratio Amount, # Incremental Term Loans with a scheduled maturity date more than one years after the initial scheduled maturity date for the Initial Term Loans, # Incremental Term Loans incurred in connection with a Permitted Investment, # Incremental Term Loans in an original aggregate principal amount not to exceed the greater of # 50% of Closing Date EBITDA and # 50% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination, # Incremental Term Loans that are not a syndicated “term loan b” facility or # Incremental Term Loans that are not denominated in Dollars.

Pricing. Notwithstanding anything to the contrary in the Existing Terms and Conditions, from and following the Effective Date, # with respect to the Internal & ITO Customers, Section 2.1 (Fees) and [Section 2.6] (Invoices and Payment) of the MSA shall apply; and # with respect to those Existing Customers described in Section 2(b) of this Agreement that are renewing or increasing/adding Services, the pricing terms set forth in [Section 1.1.1] of the Reseller Agreement shall apply.

For the purposes of this definition, market value shall be determined based upon the amount in cash a willing buyer would pay a willing seller in an arm’s length transaction.

If Allena or any of its Affiliates or Sublicensees effects a sale, disposition or other transfer of a Licensed Product to a customer in a particular country at a price that is not an arm’s-length sales price, the Net Sales of such Licensed Product to such customer shall be deemed to be the weighted average sale price of such Licensed Product for arm’s-length sales of such Licensed Product in such country during the Calendar Quarter immediately preceding such sale, disposition or other transfer by the selling party.

Section # Conditions Applicable to all Sale and Purchase Transactions. Any transaction effected under this Article X or in connection with the acquisition, disposition or substitution of any asset shall be conducted on an arm’s-length basis.