definiens: shall mean payments or fair market value of non - cash consideration received by LICENSEE from a SUBLICENSEE under and in consideration for its SUBLICENSE, including if applicable, license issue fees and other licensing fees, milestone payments or other payments . For any refundable payments made to LICENSEE by a SUBLICENSEE that are subsequently refunded to such SUBLICENSEE, LICENSEE can deduct such amounts from future royalty payments, Annual Minimum Payments and/or milestone payments owed to LICENSOR . In the case where LICENSEE receives a milestone payment from a SUBLICENSEE for the same event that triggers one of the milestone payments owed by LICENSEE to LICENSOR as provided for in Appendix B sf-3500624 5 subsection 5 ( e.g., upon the first filing of an IND with FDA or foreign equivalent in a MAJOR MARKET country ), SUBLICENSING REVENUE shall only include the portion of the mtlestone payment received by LICENSEE from the SUBLICENSEE that is over and above the amount already owed to LICENSOR as provided for in Appendix B, subsection 5 . To determine the basis on which SUBLICENSING REVENUE is to be calculated, the following amounts shall be excluded, even if they are paid by a SUBLICENSEE to LICENSEE, including as part of any up front or milestone payment, whether in cash or as non - cash consideration : royalties ; payments to fund ongoing and future research and/or development activities including without limitation in connection with the design and conduct of human clinical trials ; payments for the manufacture and supply of LICENSED PRODUCT or excipients or components thereof for pre - clinical, clinical or commercial use ; equity investments in LICENSEE ( including without limitation the sale of capital stock of LICENSEE or other securities convertible mto capital stock of LICENSEE ), provided, however, that if in consideration for its sublicensing rights, a SUBLICENSEE makes an equity investment in LICENSEE and pays a premium on equity, then SUBLICENSING REVENUE shall include that portion which is a premium of fifteen percent ( 15 % ) or more on equity ; or any amounts pursuant to a sale of all or substantially all of the business or assets of LICENSEE related to the LICENSED TECHNOLOGY or LICENSED PATENT RIGHTS ( whether by acquisition, merger, sale of stock, sale of assets or otherwise ) . For clarity, SUBLICENSING REVENUE shall not include payments or fair market value of non - cash consideration received by a SUBLICENSEE from a third party ( mcluding a sub - SUBLICENSEE ) under and in consideration for a sub - SUBLICENSE