definiens: means all transaction closing payments, milestone payments, license fees and any other pre - Commercialization payments ( excluding royalties, sales revenue, sales commissions and any monies and proceeds derived from the sale of sublicensed Product ) payable to, collected or received by Hana or its Affiliates pursuant to each sublicense agreement entered in respect of the Licensed Patents and INEX Technology granted hereunder . Except as otherwise expressly provided below, shall not include : a ) loans to Hana or its Affiliate by a Sublicensee relating to the Licensed Patents and INEX Technology, except to the extent that the interest charged for such loan is less than Fair Market Value ( in which case only such difference 1.1.95 1.1.96 1.1.97 1.1.98 12 between the interest rate charged to Hana and the interest rate at Fair Market Value shall constitute Sublicensing Revenue ) or to the extent that the principal of a loan is forgiven ( in which case only such forgiven amount shall constitute Sublicensing Revenue ) ; or b ) equity investments in Hana by a Sublicensee or equity of the Sublicensee relating to the Licensed Patents and INEX Technology, except to the extent that such investments are made at greater than Fair Market Value ( in which case only the excess premium shall constitute Sublicensing Revenue ) . For the purposes of this subsection, if the shares of either Hana or its Sublicensee are not listed on any stock exchange, the Fair Market Value shall be based on the price at which shares of either Hana or its Sublicensee, as the case may be, have been issued to investors ( who are not industry - related strategic investors or collaborative research partners ) in the then most recent bona fide arm 's length private placement financing completed within the preceding twelve ( 12 ) months having gross proceeds of at least Ten Million Dollars ( $ 1 0,000,000 ) . If no such private placement financing has been completed, the Parties shall appoint a mutually acceptable Person as an independent evaluator, and if the Parties can not agree on an evaluator, the Fair Market Value shall be determined as provided in Article 13 ; c ) An exchange of rights, assets, liabilities or other interest of any kind, except to the extent that the economic benefit conferred upon Hana or its Affiliates by reason of such exchange exceeds the Fair Market Value of the consideration which would have been paid by Hana or its Affiliates for such rights, assets, liabilities or interests, as determined by : ( i ) the mutual agreement of the Parties following the application of U.S. GAAP, or failing mutual agreement ; ( ii ) the binding decision of a mutually appointed independent Third Party banker or valuator familiar with the pharmaceutical industry