Exhibit
10.22


Confidential Materials
omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote omissions.


CO-PROMOTION AGREEMENT


 by and between


MILLENNIUM
PHARMACEUTICALS, INC.


and


ORTHO BIOTECH INC.


Dated:  October 25, 2006













TABLE OF
CONTENTS


	
  PAGE

  
	
  ARTICLE I DEFINITIONS; CONSTRUCTION; TERM 

  	
  1

  
	
   

  
	
   

  	
  1.1

  	
  Definitions.

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  Construction.

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.3

  	
  Term.

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II PRE-COMMENCEMENT ACTIVITIES

  	
  2

  
	
   

  	
   

  
	
   

  	
  2.1

  	
  Generally.

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Co-Promotion Plan.

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Training Plan and Activities.

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Core Promotional Materials.

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III CO-PROMOTION 

  	
  7

  
	
   

  	
   

  
	
   

  	
  3.1

  	
  Rights and Obligation to Co-Promote; Combined Use
  with Doxil®

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Reach and Frequency; Minimums.

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Sales Representatives.

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Promotional Materials.

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5

  	
  Product Sales.

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.6

  	
  Product Recall and Withdrawal.

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.7

  	
  Product Return.

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.8

  	
  Product Medical Inquiries.

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.9

  	
  Additional Activities.

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV GOVERNANCE 

  	
  14

  
	
   

  	
   

  
	
   

  	
  4.1

  	
  Steering Committee.

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Co-Promotion and Marketing Committee.

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V COMPENSATION

  	
  15

  
	
   

  	
   

  
	
   

  	
  5.1

  	
  Call Costs Payments.

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Variable Costs.

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  Commissions.

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Tail Payment.

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  Payment Terms.

  	
  19

  



 













 


	
  

  	
  5.6

  	
  Late Payments.

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7

  	
  Promotion Expenses.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8

  	
  Tax Matters.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI ADVERSE EVENT REPORTING; FIELD REPORTS;
  PRODUCT COMPLAINTS, GOVERNMENTAL COMMUNICATIONS; STATE REPORTING.

  	
  

  20

  
	
   

  	
   

  
	
   

  	
  6.1

  	
  Adverse Events.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Field Reports.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Field and Efficacy.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Product Complaints.

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  MLNM Responsibility.

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  OBI Communications.

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  OBI Cooperation.

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII AUDIT RIGHTS

  	
  22

  
	
   

  	
   

  
	
   

  	
  7.1

  	
  Audit Right Period.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Compliance With Laws.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Compliance with Agreement.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Payment Audit.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII TERMINATION

  	
  23

  
	
   

  	
   

  
	
   

  	
  8.1

  	
  Termination.

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Termination for Change in Applicable Laws.

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Effect of Termination.

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Right of First Negotiation.

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX RESTRICTIVE COVENANTS

  	
  27

  
	
   

  	
   

  
	
   

  	
  9.1

  	
  Acknowledgement.

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Confidentiality.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3

  	
  Non-Solicitation.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Non-Competition.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X INTELLECTUAL PROPERTY

  	
  29

  
	
   

  	
   

  
	
   

  	
  10.1

  	
  The Product.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Ownership of Intellectual Property Rights.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  No Right or License.

  	
  30

  



 













 


	
  ARTICLE XI REPRESENTATIONS AND WARRANTIES;
  CERTAIN COVENANTS.

  	
  30

  
	
   

  
	
   

  	
  11.1

  	
  Representations of Authority.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Consents.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.3

  	
  No Conflict.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.4

  	
  Enforceability.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.5

  	
  Sales Representatives.

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.6

  	
  Certain Compliance Matters.

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.7

  	
  Debarment; Exclusion.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.8

  	
  MLNM Employees.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.9

  	
  Disclaimer.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII INDEMNIFICATION

  	
  33

  
	
   

  	
   

  
	
   

  	
  12.1

  	
  General Indemnification.

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Product Liability.

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Notice and Control of Litigation.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII DISPUTE RESOLUTION

  	
  34

  
	
   

  	
   

  
	
   

  	
  13.1

  	
  Escalating; Decision Making Authority.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Arbitration.

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3

  	
  Jury Trial.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4

  	
  Attorneys’ Fees.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV MISCELLANEOUS

  	
  38

  
	
   

  	
   

  
	
   

  	
  14.1

  	
  Compliance with Laws.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2

  	
  Choice of Law.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.3

  	
  Equitable Remedies.

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.4

  	
  Notices.

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.5

  	
  Severability.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.6

  	
  Force Majeure Event.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.7

  	
  Captions.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.8

  	
  Integration.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.9

  	
  Independent Contractors; No Agency.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.10

  	
  Submission to Jurisdiction.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.11

  	
  Assignment; Successors.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  



 













 


	
  

  	
  14.12

  	
  Publicity.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.13

  	
  No Consequential or Punitive
  Damages.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.14

  	
  Performance by Affiliates.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.15

  	
  Amendments; Waivers.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.16

  	
  Third Party Beneficiaries.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.17

  	
  Further Assurances;
  Cooperation.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.18

  	
  Survival.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.19

  	
  Cumulative Remedies.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.20

  	
  Execution in Counterparts;
  Facsimile Signatures.

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Appendix A Definitions

  	
  47

  
	
   

  	
   

  	
   

  
	
  Appendix B Co-Promotion Plan

  	
  56

  
	
   

  	
   

  	
   

  
	
  Appendix C Training Plan

  	
  57

  
	
   

  	
   

  	
   

  
	
  Appendix D Terms and Conditions Applicable to
  Product Orders

  	
  58

  



 


















CO-PROMOTION
AGREEMENT


This CO-PROMOTION AGREEMENT (this “Agreement”) dated October 25, 2006 (the “Effective Date”), is entered into by and between MILLENNIUM PHARMACEUTICALS, INC. a Delaware corporation (“MLNM”) and ORTHO BIOTECH INC., a
New Jersey corporation (“OBI”).  MLNM and OBI are generically referred to in
this Agreement individually as a “Party” and
collectively as the “Parties”.


WHEREAS,
MLNM and OBI’s Affiliate Ortho Biotech Products, L.P. (“Ortho Biotech”) are parties to that certain Collaboration,
Distribution and Licensing Agreement made effective as of June 30, 2003 (as
amended from time to time, the “Collaboration and License
Agreement”), pursuant to which MLNM and Ortho Biotech agreed to
globally develop MLNM’s proprietary drug, VELCADE® (bortezomib)
for Injection (the “Product”) to
be administered by injection for the treatment of multiple myeloma and in other
tumor type indications;


WHEREAS,
OBI has significant experience in the marketing and promotion
of drugs (including drugs administered by injection) for the treatment of
cancer and serious, cancer-related, chronic illnesses; and


WHEREAS,
MLNM wishes to engage OBI to Co-Promote (as hereinafter
defined) the Product in the Co-Promotion Territory (as hereinafter defined) and
OBI wishes to be so engaged subject to and upon the terms and conditions set
forth in this Agreement.


NOW,
THEREFORE, in consideration of the mutual representations,
warranties, covenants and undertakings contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, agree
as follows:


ARTICLE I


DEFINITIONS;
CONSTRUCTION; TERM


1.1                               Definitions.  Capitalized terms used in this Agreement have
the meanings assigned in Appendix A.


1.2                               Construction.  Except where the context requires
otherwise, whenever used, the singular includes the plural, the plural includes
the singular, the use of any gender is applicable to all genders and the word “or”
has the inclusive meaning represented by the phrase “and/or.”  Whenever this Agreement refers to a number of
days, unless otherwise specified, such number refers to calendar days.  The headings of this Agreement are for
convenience of reference only and do not define, describe, extend or limit the
scope or intent of this Agreement or the scope or intent of any provision
contained in this Agreement.  The term “including”
or “includes” as used in this Agreement means including or includes “without
limiting” or “without limitation.”  The
wording of this Agreement shall be deemed to be the wording mutually chosen by
the Parties and no rule of strict construction shall be applied against either
Party.













1.3                               Term.


1.3.1                        This
Agreement shall commence on the Effective Date and shall continue in full force
and effect until December 31, 2008, unless extended or earlier terminated as
hereinafter set forth.  The period
beginning on the Effective Date and ending on December 31, 2006 is referred to
as the “Pre-Commencement Period.”  The period
beginning on January 1, 2007 and ending on December 31, 2008, as may be
extended by any Extension Term(s) and as may be earlier terminated pursuant to
this Agreement, is referred to as the “Co-Promotion Term.”


1.3.2                        The
Co-Promotion Term may be extended for two (2) additional successive one (1)
year periods (each, an “Extension Term”)
by mutual written agreement of the Parties. 
Prior to the expiration of this Agreement, unless earlier terminated in
accordance with Article 8, and in the event the sum of the aggregate Net Sales
of the Product in 2007 and the Annualized Net Sales in 2008 exceed [**] Dollars
($[**]), the Parties shall negotiate in good faith as set forth in this
Subsection 1.3.2 the extension of this Agreement for one (1) additional year.  Each Extension Term shall be governed by the
terms and conditions set forth in this Agreement except (a) to the extent that
such terms and conditions are amended as mutually agreed to in writing by the
Parties, and (b) the payment provisions set forth in Article V hereof and as
referenced elsewhere in this Agreement, shall be subject to re-negotiation for
each Extension Term.  In the event that a
Party wishes to enter into an Extension Term, it shall notify the other Party
in writing at least three (3) months prior to the expiration of the
Co-Promotion Term.  Following receipt of
such notice by the other Party, the Parties shall negotiate the financial terms
applicable to the proposed Extension Term in good faith for a period of less
than sixty (60) days.  In the event that
the Parties fail to reach agreement on the payment provisions prior to the
expiration of the Co-Promotion Term, then the Agreement shall expire upon
expiration of the Co-Promotion Term then in effect without further extension at
such time.


ARTICLE
II


PRE-COMMENCEMENT
ACTIVITIES


2.1                               Generally.  During the Pre-Commencement Period, the
Parties shall complete the activities described in Sections 2.2 through 2.4
below.  In the event that, following all
commercially reasonable efforts of both Parties, all such activities have not
been completed on or prior to the commencement of the Co-Promotion Term, then,
so long as the Minimum Pre-Commencement Activities have been completed on or
prior to the commencement of the Co-Promotion Term, the Parties shall proceed
as otherwise contemplated by this Agreement and shall continue to use all
commercially reasonable efforts to complete the remainder of the activities
that were supposed to have been completed during the Pre-Commencement Period as
soon as practicable, but in no event later than March 31, 2007.  In the event that the
Minimum Pre-Commencement Activities have not been fully performed on or prior
to the commencement of the Co-Promotion Term, then the Parties shall proceed in
accordance with the following Sections 2.1.1 and 2.1.2.


2.1.1                          The Pre-Commencement Period shall be extended automatically
to January 29, 2007 provided that the Steering Committee shall convene on or
before December 31, 2006 to review the activities completed by the Parties to
date and shall assign clear 



 2
 









responsibilities and
deadlines to each Party, as applicable, to facilitate completion of the Minimum
Pre-Commencement Activities by January 29, 2007.  OBI may not commence Co-Promotion of the
Product until the Minimum Pre-Commencement Activities have been completed
unless otherwise agreed upon by the Steering Committee.


2.1.2                        In the
event the Minimum Pre-Commencement Activities are fully performed by January
29, 2007 but all activities described in Sections 2.2 through 2.4 below have
not been completed, the Steering Committee shall convene on or before such date
to review the activities completed by the Parties to date and shall assign
clear responsibilities and deadlines to each Party, as applicable, to
facilitate completion of such activities as soon as reasonably practicable but
no later than March 31, 2007.


2.2                               Co-Promotion
Plan.  The Parties shall develop and
complete a plan to Co-Promote the Product in the Co-Promotion Territory (the “Co-Promotion Plan”). The Parties shall amend and update the
Co-Promotion Plan semi-annually during each calendar year or more frequently as
determined by the Steering Committee. 
The Co-Promotion Plan, as the same may be amended and updated from time
to time, shall be approved by the Co-Promotion and Marketing Committee and
incorporated into this Agreement as Appendix B.  Each Party shall use all commercially
reasonable efforts to complete the Co-Promotion Plan within sixty (60) days of
the Effective Date, but in any event, subject to Section 2.1.1 and 2.1.2 of
this Agreement, prior to the commencement of the Co-Promotion Term.  The Co-Promotion Plan shall include, without
limitation, the Target List, Call Plan and Call Reporting and Review
Requirements as described further in this Section 2.2.


2.2.1                        Target
List. MLNM shall provide to OBI, for review by and consultation with OBI, a
list of First Position Targets and Second Position Targets (collectively, the “Target List”) no later than [**] days following the
Effective Date, which Target List shall be incorporated into the Co-Promotion
Plan.  The Target List shall include only
health care professionals [**] or any other indications for the Product that
are approved in the Co-Promotion Territory during the Co-Promotion Term.  OBI shall bring to the attention of the
Co-Promotion and Marketing Committee any prescribers of the Product known to
OBI who are not MLNM Targets.  MLNM may,
in consultation with the Co-Promotion and Marketing Committee, update the Target
List semi-annually during each calendar year or more frequently as determined
by the Co-Promotion and Marketing Committee; provided, however, that a change
in the identity of more than [**] percent ([**]%) of the First Position Targets
or [**] percent ([**]%) of the Second Position Targets on the Target List shall
require the mutual agreement of the Parties.


2.2.2                        Call
Plan.  OBI shall develop a plan for
Calling on the MLNM Targets (the “Call Plan”)
and update the Call Plan at least semi-annually during each calendar year or
more frequently as OBI may determine. 
The Call Plan and each update thereto shall be subject to review, input
and approval by the Co-Promotion and Marketing Committee and shall be
incorporated into the Co-Promotion Plan following approval by the Co-Promotion
and Marketing Committee. The Call Plan shall be consistent with the
requirements of Section 3.2.1.  OBI shall
provide all Sales Representatives with a copy of the applicable Call Plan.


2.2.3                        Call
Reporting and Review Requirements. 
The Co-Promotion and Marketing Committee shall develop reporting and
review requirements whereby OBI shall 



 3
 









provide MLNM with reports
regarding execution of the Call Plan by OBI so that MLNM may monitor execution
of the Call Plan by OBI (the “Call Reporting and Review
Requirements”).


(a)                                  The
Call Reporting and Review Requirements shall be incorporated into the
Co-Promotion Plan and shall provide, inter  alia that:


(i)                                     During
the Co-Promotion Term, within [**] days of the end of each calendar month, OBI
shall provide a final detailed report to MLNM summarizing the Call activity for
such calendar month (each such report, a “Monthly Call Report”).  Each Monthly Call Report shall include with
respect to each Call made by the Sales Representatives (1) the date of the
Call; (2) the MLNM Target (including identifying information mutually agreed
upon by the Parties in the Co-Promotion Plan); (3) the location of the Call;
(4) message information to the extent available in the OBI call reporting
system; (5)  account information to the
extent available in the OBI call reporting system (including identifying
information mutually agreed upon by the Parties in the Co-Promotion Plan); (6)
identification of Sales Representative who performed the Call; (7) position of
the Product detail (i.e., First Position Call or Second Position Call), and (8)
any other information agreed to by the Parties. 
OBI shall provide such Monthly Call Report to MLNM in an electronic
format mutually agreed to by the Parties;


(ii)                                  During
the Co-Promotion Term, within [**] days after the end of each calendar quarter,
OBI shall provide a final detailed report to MLNM summarizing the Call activity
for such quarter and indicating for each MLNM Target, the number of First
Position Calls and Second Position Calls by month achieved by OBI during such
quarter with respect to such First Position Target and such Second Position
Target, as applicable (each such report a “Quarterly Call Report”).  OBI shall provide such Quarterly Call Report
to MLNM in an electronic format mutually agreed upon by the Parties.


(iii)                               OBI
shall provide MLNM with copies of all significant communications relating to
the Product and this Agreement made by OBI to its Co-Promotion Representatives
(including, without limitation, emails and Product specific information) within
such time frames and by such means as are specified in the Co-Promotion Plan;
and


(iv)                              At
MLNM’s written reasonable request, made not less than [**] Business Days prior
to the applicable event, MLNM shall have the right to monitor the performance
of Sales Representatives in a mix of geographical territories through (1) [**]
relating to this Agreement and (2) [**] (including, without limitation, [**].  MLNM
shall also have the right, upon written request made to OBI from time to time,
to review the results of [**] agreed upon by the Parties to evaluate the
knowledge of the Sales Representatives with respect to the Product, the
Promotional Materials and the Call Plan and the performance of Calls by the
Sales Representatives.


(b)                                 MLNM,
as part of the Co-Promotion Plan, shall within [**] Business Days following the
public release of its quarterly results, provide to OBI Product sales data (for
e.g., in vials, by account, by month)
to the extent available, in a form selected by MLNM that will permit the
manipulation and analysis of the data. 
OBI shall be permitted to use such data for the sole purpose of planning
Co-Promotional activities set forth under this Agreement.  MLNM will in its sole discretion, provide
additional reports or data as may become 



 4
 









available to MLNM to
assist OBI in planning Co-Promotional activities under this Agreement.  For each MLNM Target, MLNM will provide to
OBI to the extent available the number of calls by MLNM sales representatives
received over the calendar quarter [**] days after the end of each
quarter.     MLNM makes no representation
or warranty as to the accuracy or completeness of such call activity data.


2.3                               Training
Plan and Activities.  The Parties
shall develop a training plan (the “Training Plan”)
with respect to their performance pursuant to this Agreement and the
Co-Promotion Plan pursuant to which (a) MLNM shall provide initial and
supplementary training pursuant to this Agreement to OBI personnel who are
designated by OBI as trainers of the other Co-Promotion Representatives (the “OBI Trainers”) with respect to their performance pursuant
to this Agreement and the Co-Promotion Plan, and (b) OBI Trainers shall provide
initial and supplementary training to the other Co-Promotion
Representatives.  Each Party shall use
all commercially reasonable efforts to complete the Training Plan within [**]
days of the Effective Date and shall incorporate the same into this Agreement
as Appendix C.  The Training Plan
shall include, without limitation, the following obligations of the Parties:


2.3.1                        OBI shall
provide a sufficient number of OBI Trainers to train all of the Sales
Representatives.  The OBI Trainers shall
be selected by OBI and have prior experience in selling oncology therapeutics
similar to those otherwise used by OBI for its own products.


2.3.2                        MLNM shall
provide one (1) copy of training materials to OBI for use solely in connection
with (a) the training of the OBI Trainers and (b) the training of the other
Co-Promotion Representatives by the OBI Trainers pursuant to the Training
Plan.  OBI shall have the right to
reproduce such training materials and provide copies of the same to the OBI
Trainers and the Co-Promotion Representatives for use in connection with their
training pursuant to the Training Plan.


2.3.3                        On or
prior to December 31, 2006 MLNM shall complete its training of the OBI Trainers
with respect to (a) sales and scientific materials regarding the disease state
information on multiple myeloma and (b) use of the Product in the approved
indication for multiple myeloma in the Co-Promotion Territory.


2.3.4                        The
Parties shall jointly develop assessment materials to allow MLNM to test the
performance of OBI Trainers and each OBI Trainer shall be required to receive
an individual minimum score of [**] percent ([**]%) under such tests before he
or she initiates training of Co-Promotion Representatives.


2.3.5                        OBI shall
ensure that the OBI Trainers train the Co-Promotion Representatives in
accordance with the Training Plan.  Prior
to January 29, 2007, OBI shall also ensure, through training assessments
jointly developed by the Parties for such purpose, but administered by OBI,
that each Co-Promotion Representative receives training regarding (a) the
Product, (b) the disease state(s) for which the Product is indicated in the
Co-Promotion Territory and (c) the Calls to be conducted by the Co-Promotion
Representatives that meets current standards of OBI applicable to other
pharmaceutical products promoted by OBI, as well as applicable industry
standards for comparable pharmaceutical products.  OBI shall provide MLNM with reasonable
advance notice and opportunity to attend and participate in activities 



 5
 









related to the training
of the Co-Promotion Representatives pursuant to and in accordance with the
Training Plan.


2.3.6                        MLNM shall
provide supplementary training to OBI Trainers as deemed necessary and
appropriate by MLNM during the Co-Promotion Term including without limitation
training regarding any newly approved indication for the Product or emerging
Product safety information.  OBI shall
cause the OBI Trainers to provide initial training in accordance with the
Training Plan to any additional or replacement Co-Promotion Representatives and
supplementary training to other Co-Promotion Representatives as deemed
necessary and appropriate by OBI during the Co-Promotion Term.


2.3.7                         Each
Party shall be responsible for ensuring that all of its personnel involved in
the activities set forth under this Agreement, complies with all Applicable
Laws.  Each Party shall ensure that all
of its personnel involved in the Co-Promotion receives such compliance training
regarding Applicable Laws  in a manner
consistent with all applicable pharmaceutical industry standards.


2.4                               Core
Promotional Materials.


2.4.1                        Prior to
the commencement of the Co-Promotion Term, MLNM shall develop a set of
Promotional Materials for the purposes of this Agreement for use during the
Co-Promotion Term (the “Core Promotional
Materials”).  The Core
Promotional Materials shall be subject to timely review and approval in accordance with MLNM standard operating
procedures by duly authorized representatives of each Party’s designated
promotional review team at a joint meeting of such representatives.  The Parties shall ensure that any Core
Promotional Materials to be used by Co-Promotion Representatives comply with
each Party’s applicable regulatory compliance policies.  For purposes of clarification, subject to
Section 11.5.4, nothing in this Agreement shall restrict MLNM’s right to
independently undertake any promotional or marketing activities with respect to
the Product, or to develop and use Promotional Materials for the purposes of
promoting and marketing the Product, in each case in the Co-Promotion Territory
and its territories and possessions.


2.4.2                          The Core Promotional Materials shall contain
the logos with appropriate prominence of both MLNM and OBI with designation of
OBI as co-promoting the Product in the Co-Promotion Territory.  The location and statement of the OBI logo
shall be as mutually agreed upon by the Parties.  MLNM may revise, update or develop
additional  Core Promotional Materials
from time to time during the Co-Promotion Term subject to the review and
approval process described above.  The
Core Promotional Materials shall also be subject to revision by MLNM during the
Co-Promotion Term as deemed necessary and appropriate by MLNM based on (a)
changes in the Product Label and Insert or (b) suggestions, requirements or
mandates of the FDA or other Governmental Authorities and/or Applicable Law.


2.4.3                        MLNM shall
provide OBI with copies of the Core Promotional Materials in the quantities
requested by OBI from time to time during the Co-Promotion Term to perform its
obligations pursuant to this Agreement and subject to the In Kind Payment set
forth in Section 5.2.2.  MLNM shall ship
such copies to OBI to one distribution center designated by OBI.



 6
 









ARTICLE
III


CO-PROMOTION


3.1                               Rights
and Obligation to Co-Promote; Combined Use with Doxil®


3.1.1                        Subject to
the terms and conditions of this Agreement, MLNM grants to OBI the co-exclusive
right with MLNM, and OBI hereby accepts the obligation, to Co-Promote the
Product within the Co-Promotion Territory during the Co-Promotion Term. OBI
shall have the non-exclusive right and obligation subject to the applicable
terms and conditions set forth in Section 9.8 of the Collaboration and License
Agreement to use the VELCADE® mark to the extent necessary for OBI to
fulfill its Co-Promotion obligations under this Agreement.  Any rights of MLNM not expressly granted to
OBI hereunder with respect to the co-promotion of the Product in the
Co-Promotion Territory or otherwise related to the Product shall be retained by
MLNM in accordance with the terms of this Agreement and the Collaboration and
License Agreement.


3.1.2                        Subject to
the terms and conditions of this Agreement, upon receipt by OBI or its
Affiliates, as applicable, of notice of acceptance by the FDA of OBI’s or its
Affiliate’s sNDA filing for the marketing and sale of Doxil® for
use in combination with the Product for treatment of multiple myeloma (the “Combination sNDA Filing”), OBI and its Affiliates hereby
grant to MLNM: (a) a non-exclusive right and license to promote in the
Co-Promotion Territory and its territories and possessions the use of the
Product in combination with Doxil® in
accordance with the United States package insert for Doxil®, (b) a non-exclusive right and license to
use the Doxil® trademark solely in connection with the
marketing and sales of the Product in the Co-Promotion Territory and its
territories and possessions for use in combination with Doxil®, (c) a non-exclusive right to use all
Doxil® Data (as
defined below) in connection with the marketing and sales in the Co-Promotion
Territory and its territories and possessions of the Product for use in
combination with Doxil® , and
(d) a non-exclusive right to include such combination as a new use on the
Product Label and Insert and full prescribing information for the Product in
the Co-Promotion Territory and its territories and possessions by
cross-referencing the Doxil® label (or any data contained or referenced in
any submissions or applications made by OBI or its Affiliates for the marketing
approval of such combination by the FDA) in any submissions or applications
which MLNM may make to the FDA with respect to such new use (the “Doxil® License”).  During the term of this Agreement, the Doxil® License shall be royalty-free and fully
paid-up.  In the event this Agreement is
terminated pursuant to Sections 8.1.1, 8.1.2(a), (b) (solely in the event the
basis of such termination is a material breach by OBI), (c), (d), (e), (g) or
(h), or Section 8.2, the Doxil® License shall survive such termination and
shall be  royalty-free, fully paid-up,
perpetual and irrevocable.    If this
Agreement is terminated pursuant to Section 8.1.2(b) in the event the basis of
such termination is a material breach by MLNM or pursuant to Section 8.1.2(f),
the Doxil® License
shall not survive unless if, on the applicable effective date of termination of
this Agreement under such sections, the FDA has accepted MLNM’s sNDA filing for
the marketing and sale of the Product for use in combination with Doxil for
treatment of multiple myeloma, in which case, the Doxil® License shall survive and be
royalty-free, fully paid-up, irrevocable and perpetual; provided, however, if
the FDA does not approve the sNDA such license shall terminate. MLNM shall have
no right to transfer, assign or 



 7
 









sublicense its rights
under the Doxil® License during the term of this Agreement and
following its termination except:  (x)
MLNM may assign its rights under the Doxil® License to a Third
Party in connection with an assignment of this Agreement by MLNM to such Third
Party pursuant to Section 14.11, and (y) 
MLNM may sublicense its rights under the Doxil® License to a Third Party in connection with a
license to Commercialize (as defined in the Collaboration and License
Agreement) the Product in the Co-Promotion Territory that is granted by MLNM to
such Third Party (to the extent permitted under the Collaboration and License
Agreement).  For
purposes of this Section 3.1.2, “Doxil® Data” shall mean any data relating to
Doxil® submitted by OBI or its Affiliate to FDA in
the Combination sNDA Filing and any data submitted by OBI or its Affiliate to
FDA to update, support or supplement the product label for Doxil®. 
OBI and its Affiliates agree to promptly disclose and provide to MLNM
any Doxil® Data
provided to the FDA and, upon MLNM’s request from time to time, all Doxil Data
and any other data contained or referenced in the Combination sNDA Filing and
any updates thereto, to the extent such information and data is available at
the time of each such request. 
Notwithstanding anything to the contrary herein, OBI makes no
representation or warranty to MLNM relating to (A) MLNM’s ability to obtain FDA
approval of the use of the Product in combination with Doxil®, or (B) OBI’s and its Affiliate’s ability
to obtain FDA approval of the Combination sNDA Filing.  MLNM shall ensure (1) that all statements and
claims related to Doxil®, including
as to efficacy and safety, are consistent with and in strict compliance with
the Doxil® label and
insert and all Applicable Laws, including the Act, and (2)  that all comments about Doxil® and
OBI are truthful, accurate and in strict compliance with Applicable Laws.   In addition, at any time during and
after the Co-Promotion Term when such combination is not included on the
Product Label and Insert, MLNM shall ensure that all statements and claims
related to Doxil® are consistent with messaging approved in
advance by the Co-Promotion and Marketing Committee pursuant to Section 4.2.1
(or otherwise approved by OBI in writing). 
MLNM shall ensure and require that any permitted assignees and permitted
sublicensees of the Doxil® License comply with the foregoing
requirements.  Any rights of OBI not
expressly granted to MLNM hereunder with respect to Doxil® shall be retained by OBI.  OBI shall cause its Affiliates promptly after
execution of this Agreement to enter into a fully paid up, royalty-free trademark
license with MLNM consistent with the terms of this Section 3.1.2 and any other
agreements necessary to effect the grants made under this Section 3.1.2, each
in a form mutually acceptable to both Parties.


3.2                               Reach
and Frequency; Minimums.


3.2.1                        During the
Co-Promotion Term, OBI shall execute a Call Plan which shall direct its Sales
Representatives to complete [**] per month within the Measurement Period for
each First Position Target and [**] per month within the Measurement Period for
each Second Position Target (collectively, the “Call
Standard”). During each Measurement Period, OBI shall use
commercially reasonable efforts to cause its Sales Representatives to conduct
Calls in accordance with the Call Plan; provided, however, that neither any
failure of OBI to use such commercially reasonable efforts nor any failure to
meet the Call Standard shall constitute a breach of this Agreement or otherwise
entitle MLNM to terminate this Agreement; and provided, further, that in no
event shall this proviso limit the rights of MLNM to terminate under Section
3.2.4.



 8
 









3.2.2                        In the
event OBI fails, during any Measurement Period, to achieve the Call Standard,
OBI shall, in any event, cause its Sales Representatives to conduct Calls with
(a) a Reach of not less than [**] percent ([**]%) of First Position Targets and
not less than [**] percent ([**]%) of Second Position Targets, and (b) a
Minimum Frequency of not less than [**] Calls within the Measurement Period for
Reached First Position Targets and not less than [**] Calls within the
Measurement Period for Reached Second Position Targets.  The aforementioned Reach and Minimum
Frequency requirements are referred to, collectively, as the “Minimum Commitment”. For purposes of subsections 3.2.2
through 3.2.4 of this Agreement: (x) “Minimum Frequency”
means, with respect to a Measurement Period, the ratio determined by dividing
(i) the aggregate number of Calls made to Reached First Position Targets or
Reached Second Position Targets (as the case may be) in such Measurement Period
by (ii) the number of Reached First Position Targets or Reached Second
Position Targets (as the case may be) in such Measurement Period; (y) a “Reached First Position Target” means, with respect to a
Measurement Period, a First Position Target who received at least [**] during
such Measurement Period; and (z) a “Reached Second Position
Target” means, with respect to a Measurement Period, a Second
Position Target who received at least [**] during such Measurement Period.  With respect to a particular MLNM Target, no
more than [**] Calls to such MLNM Target in a calendar month and no more than
[**] Calls to such MLNM Target in a Measurement Period shall be included in the
numerator of the calculation of Minimum Frequency, provided, that,
with respect to First Position Targets, such Calls shall be First Position
Calls.  For purposes of calculating Reach
and Minimum Frequency to a Second Position Target, a Call may be a First
Position Call or a Second Position Call.


3.2.3                        In the
event that OBI does not meet the Minimum Commitment during a Measurement Period
(a “Non-Performing Period”), then any
Commission Payments due to OBI under Section 5.3 for the calendar year during
which the Non-Performing Period occurred shall be reduced by [**] percent
([**]%).  In the event one or more than
one Non-Performing Periods occurs in a calendar year, then any Commission
Payments due to OBI under Section 5.3 for such calendar year shall be reduced
by [**] percent ([**]%) multiplied by the number of Non-Performing
Periods in such calendar year.


3.2.4                        In the
event [**] Non-Performing Periods occur during the Co-Promotion Term (whether
occurring consecutively or not), such event shall be deemed to be an “OBI Non-Performance Breach” and (a) MLNM shall not be
obligated to pay OBI any Call Cost Payments with respect to the [**]
Non-Performing Period or any Variable Cost Payments with respect to the [**]
Non-Performing Period, (b) Commission Payments for the calendar year in which
the [**] Non-Performing Period occurs shall be reduced as set forth in Section
3.2.3 and (c) MLNM shall have the right to terminate this Agreement pursuant to
Section 8.1.2(a) at any time within one-hundred and eighty (180) days after the
occurrence of such Non-Performance Breach. 
In the event MLNM does not elect to terminate this Agreement pursuant to
Section 8.1.2(a) and additional Non-Performing Period(s) occur after the [**]
Non-Performing Period, the provisions of this Section 3.2.4 shall apply to such
Non-Performing Period(s) without taking into account the one-hundred and eighty
(180) day period set forth in clause (c) above.


3.2.5                        Notwithstanding
anything to the contrary in this Agreement, termination of this Agreement by
MLNM pursuant to Section 8.1.2(a) (together with the modification to MLNM’s payment
obligations as described in Sections 3.2.3 and 3.2.4 above and the 



 9
 









Termination Fee pursuant
to Section 8.3.2(a)) shall be the sole and exclusive remedy of MLNM for any
Losses of MLNM caused by or arising as a result of OBI’s failure to satisfy the
Minimum Commitments.  MLNM shall not have
the right to terminate this Agreement pursuant to Section 8.1.2(b) (relating to
material breach) on the basis of OBI’s failure to satisfy the Minimum
Commitments in one or more Measurement Periods which failure is a basis for
termination by MLNM pursuant to Section 8.1.2(a).


3.3                               Sales
Representatives.


3.3.1                        OBI shall
not use any contract sales organizations or other Third Parties to satisfy any
or all of its obligations under this Agreement. 
Subject to Section 11.8, MLNM at its discretion may use a contract sales
organization to supplement its employee sales force.


3.3.2                        At all
times during the Co-Promotion Term, OBI shall use all commercially reasonable
efforts to deploy a sales force (the “OBI Sales Force”)
of at least approximately the same number (the “Current
Sales Force Size”) of sales representatives as are in the OBI
oncology field sales force on the Effective Date.  The OBI Sales Force shall be responsible for
Co-Promoting the Product in accordance with this Agreement and the Co-Promotion
Plan.  Such responsibilities shall be in
addition to but not to the exclusion of the promotion of Doxil® and
Procrit® on behalf of
OBI.  During the Co-Promotion Term, OBI
shall promptly notify MLNM at least [**] days in advance, to the extent
practical but in no event later than the first of the following occurrences, of
(a) the implementation of any reduction in the OBI Sales Force to less than
[**] percent ([**]%) of the Current Sales Force Size or (b) the removal of one
or more of the aforementioned products (Doxil® and
Procrit®) from the
group of products that the OBI Sales Force is engaged to promote or the
addition of one or more products to their promotional activities.  In addition, as soon as practicable but no
later than [**] days after such notification to MLNM, OBI shall provide the
Steering Committee  with a written
plan that demonstrates that OBI shall continue to direct the OBI Sales
Representatives  to meet the Call
Standard  following such reduction in the
Sales Force and/or change in the product mix. 
In the event that OBI fails to meet the Call Standard, and does not
satisfy the Minimum Commitment in the first full Measurement Period occurring
after notification of such sales force reduction or product mix change, an OBI
Non-Performance Breach shall be deemed to have occurred and such Measurement
Period shall be treated as the [**] Non-Performing Period under Section 3.2.4
if, at any time prior to such first full Measurement Period, there is one or
more Non-Performing Period.


3.3.3                        OBI shall
provide appropriate incentives that are competitive in the marketplace to its
Co-Promotion Representatives to optimize OBI’s Co-Promotion of the Product in
accordance with Applicable Laws.  Such
incentives shall include, without limitation, attributing not less than [**]
percent ([**]%) of the total target incentive compensation that may be earned
by each Sales Representative to his or her efforts towards Co-Promotion of the
Product in the Co-Promotion Territory. 
OBI shall be solely responsible for providing compensation and benefits
due to the Co-Promotion Representatives.



 10
 









3.4                               Promotional
Materials.


3.4.1                        All
electronic and physical advertising, promotional, educational, training and
communication materials for marketing and advertisement of the Product in the
Co-Promotion Territory including, without limitation, detail aids, file cards,
premium items, reprints, booth panels and any other promotional support items
(collectively, the “Promotional Materials”)
shall be developed, produced and revised solely by or at the direction of MLNM,
provided, however that the Core
Promotional Materials shall be developed and revised as set forth in Section
2.4.  Promotional Materials include Core
Promotional Materials.


3.4.2                        In the
event that there are certain MLNM Promotional Materials other than the Core
Promotional Materials that OBI considers useful in its Co-Promotion of the
Product, such as MLNM’s Patient Starter Kit, OBI shall notify the Co-Promotion
and Marketing Committee.  If approved by
such committee, MLNM shall provide such other Promotional Materials to OBI and
charge OBI an amount equal to MLNM’s direct cost.  OBI shall pay to MLNM such amounts within
[**] days after OBI’s receipt of an invoice for such amounts.


3.4.3                        OBI shall
provide sales direction, training and communications to all Co-Promotion
Representatives on a basis and in a manner that is consistent with the Product
Label and Insert and Promotional Materials that OBI received pursuant to this
Agreement.  OBI shall, and shall cause
its Sales Representatives to (a) only use such Promotional Materials provided
by MLNM in connection with the Co-Promotion of the Product, (b) ensure that all
statements and claims related to the Product, including as to efficacy and
safety, are consistent with and in strict compliance with the Product Label and
Insert and such Promotional Materials, and all Applicable Laws, including the
Act, (c) ensure that all comments about the Product, Product competition, other
products and MLNM are truthful, accurate and in strict compliance with
Applicable Laws, and (d) not change such Promotional Materials in any
respect.  Without limitation to the
foregoing, OBI shall not, and shall not cause or permit its Sales
Representatives to make any untrue or misleading statements or comments about
the Product, and/or take any action that jeopardizes, or could reasonably be
expected to jeopardize the goodwill or reputation of MLNM or its products.


3.5                               Product
Sales.


3.5.1                        MLNM shall
have the sole right and responsibility for establishing and modifying the terms
and conditions of the sale of the Product within the Co-Promotion Territory,
including (a) the price at which the Product shall be sold,
(b) whether the Product shall be subject to trade or quantity discounts,
(c) whether any discount shall be provided for payments on accounts
receivable, (d) whether the Product shall be subject to rebates, returns
and allowances or retroactive price reductions, (e) the channels of
distribution of the Product, (f) whether credit is to be granted or
refused in connection with any sale of Product, and (g) discussions with
Government Authorities regarding Product pricing or reimbursement.


3.5.2                        MLNM shall
provide Sales Representatives with general information related to the placement
of orders for the Product by health care professionals with prescribing
authority in the Co-Promotion Territory. 
OBI shall not, and shall not permit its Sales Representatives to,
solicit or accept orders for the Product but rather, shall promptly direct any
orders that it receives and cause its Sales Representatives to promptly direct
any orders they may receive to MLNM or to its sole distributor,
MillenniumDirectTM, or any other such distributor as 



 11
 









designated by MLNM.  MLNM shall cause its sole distributor to
accept all orders for the Product within the Co-Promotion Territory at pricing
determined by MLNM in its sole discretion and subject to MLNM’s standard terms
and conditions.  Such standard terms and
conditions as in effect on the Effective Date are attached as Appendix D
to this Agreement and MLNM shall provide any modification thereto to OBI as
soon as practicable but no later than within [**] days after the effectiveness
of such modifications, along with a corresponding update to Appendix D.  MLNM shall be solely responsible for
responding to requests from MLNM Targets for individual patients who need the
Product but are unable to afford it.  OBI
shall promptly direct any such requests that it receives and cause its Sales
Representatives to promptly direct any such requests that they may receive to
MLNM.


3.6                               Product
Recall and Withdrawal.  Recalls and
withdrawals of the Product shall be handled in accordance with the
Collaboration and License Agreement.  In
the event that MLNM decides to conduct a recall in the Co-Promotion Territory
in accordance with the Collaboration and License Agreement, MLNM shall advise
OBI with respect to any actions to be taken by OBI in connection with the
recall.


3.7                               Product
Return.  MLNM shall have the sole
responsibility and right to accept, either directly or indirectly, any request
to return Product in the Co-Promotion Territory.  OBI shall not solicit the return of any
Product and shall promptly notify MLNM of any returned Product received by OBI
by contacting the MLNM Medical Drug Information Call Center at 1-866-VELCADE or
as may otherwise be reasonably directed by MLNM from time to time.  Any Product returned by OBI shall be
accompanied by a fully completed return form provided by MLNM and shall be
shipped by OBI to a facility designated by MLNM.  All reasonable shipping costs of OBI in
connection with any Products returned by OBI to MLNM in the Co-Promotion Territory
shall be reimbursed by MLNM.


3.8                               Product Medical Inquiries.


3.8.1                        MLNM shall
have the exclusive right to respond to all questions or requests for
information about the Product made by any medical professionals or any other
person to OBI or its Sales Representatives that (a) are not appropriate, per
Applicable Laws, for a response to be made by a Sales Representative, (b) if
appropriate per Applicable Law for a response to be made by a Sales
Representative, warrant a response beyond the knowledge or understanding of
such Sales Representatives, or (c) are beyond the scope of the Core Promotional
Materials (all such questions or requests being referred to as “Product Medical Inquiries”).  OBI shall direct its Sales Representatives to
direct all Product Medical Inquiries within [**] of their receipt thereof to
the MLNM Medical Drug Information Call Center at 1-866-VELCADE or as may
otherwise be reasonably directed by MLNM from time to time.  In no event shall OBI respond to, or permit
its Sales Representatives to respond to any Product Medical Inquiry.


3.9                               Additional
Activities.  OBI shall not be
prohibited from undertaking promotional activities with respect to the Product
that are in excess of those for which OBI is responsible under this Agreement
and the then current Co-Promotion Plan, provided that such excess promotional
activities (a) are not inconsistent with this Agreement or the then current
Co-Promotion Plan, (b) are approved by the Co-Promotion and Marketing
Committee, (c) are in 



 12
 









compliance with
Applicable Laws and industry guidance, including, without limitation, the
Accreditation Council for Continuing Medical Education Standards for Support of
Continuing Medical Education, the American Medical Association Guidelines on
Gifts to Physicians from Industry, the Pharmaceutical Research and
Manufacturers of America Code on Interactions with Healthcare
Professionals,  (d) do not involve the
development or use of additional promotional materials, (e) are undertaken and
performed at the sole cost and expense of OBI, and (f) MLNM receives a report
within [**] days of the end of each calendar month during which such activities
are undertaken, describing such activities, including but not limited to, call
information, frequency and other items identified by the Co-Promotion and
Marketing Committee.


[Remainder of page intentionally left blank.]


 



 13















ARTICLE
IV

GOVERNANCE


4.1      Steering Committee.


4.1.1        Formation; Purpose.  Simultaneously
with the execution of this Agreement, the Parties shall establish a Steering
Committee (the “Steering Committee”)
which shall: (a) oversee the activities to be undertaken by the Parties during
the Pre-Commencement Period as described in Article II of this Agreement, (b)
oversee the Co-Promotion activities to be under taken by the Parties during the
Co-Promotion Term; (c) endeavor to resolve disputes of the Co-Promotion and
Marketing Committee referred to the Steering Committee pursuant to Section
13.1.1.


4.1.2        Membership.
        The Steering Committee shall
consist of no more than six (6) members and no less than two (2), half of whom
shall be management level employees of MLNM who are appointed by MLNM and half
of whom shall be management level employees of OBI who are appointed by
OBI.  Each Party shall promptly fill any
vacancy created by the resignation or removal of any members appointed by such
Party.  Either Party may remove and
replace any of its members with or without cause at anytime by prior written
notice to the other Party.


4.1.3        Meetings;
Voting. 
The Steering Committee shall meet at such times as determined
by the Parties but not less than once per calendar quarter at locations
designated on an alternate basis by the Parties.  Each Party shall bear its own costs
associated with the attendance of its appointees at the meetings.  MLNM shall designate one of its appointees as
the Chair of the Steering Committee.  The
committee shall operate by consensus with each Party having one (1) vote on the
Steering Committee.


4.2      Co-Promotion and
Marketing Committee.


4.2.1        Formation; Purpose. 
Prior to the commencement of the Co-Promotion Term, the Steering
Committee shall establish a Co-Promotion and Marketing Committee (the “Co-Promotion and Marketing Committee”)
which shall be responsible for (a) the development, implementation and
oversight of the activities of the Parties under the Co-Promotion Plan, (b)
sharing relevant market information (e.g., market research) with each other to
the extent permissible under Applicable Laws, (c) assessing and recommending
mutually advantageous propositions for the Parties that MLNM may adopt in its
sole discretion, and (d) ensuring consistent messaging regarding the
combination of the Product with Doxil® consistent with the terms of Section 3.1.2,
and discussing the messaging regarding the combination of the Product with
doxorubicin in relapsed multiple myeloma. 
OBI and MLNM shall share all proposed messaging and market research
regarding the combined use of the Product with Doxil® with the committee to enable it to
discharge its responsibility pursuant to subpart (d) above.


4.2.2        Membership.
        The Co-Promotion and Marketing
Committee shall consist of an equal number of members appointed by each Party,
which number shall be mutually agreed to by the Parties.  Each member shall be a senior sales and
marketing employee of the Party appointing such member.  Each Party shall promptly fill any vacancy
created by the resignation 



 14
 









or removal of any members appointed by such Party.  Either Party may remove and replace any of
its members with or without cause at anytime by prior written notice to the
other Party.


4.2.3        Meetings;
Voting. 
The Co-Promotion and Marketing Committee shall meet at such
times as determined by the Parties but not less than once per calendar quarter
at locations designated alternately by each Party.  Each Party shall bear its own costs associated
with the attendance of its appointees at the meetings.  Each Party shall designate one of its
appointees to act as a liaison with the global commercialization team, i.e. the
GCT as defined and established pursuant to the Collaboration and Licensing Agreement.  The committee shall operate by consensus with
each Party having one (1) vote on the Co-Promotion and Marketing
Committee.  Any disagreement of the
committee shall be referred to the Steering Committee for attempted resolution.


4.2.4        Working
Groups. The Co-Promotion and Marketing Committee may establish working
groups to oversee particular projects or activities of such committee and each
working group shall be constituted and shall operate as determined by such
committee.


ARTICLE V

COMPENSATION


In consideration of OBI’s Co-Promotion of the Product
in accordance with the terms of this Agreement and subject to the terms and
conditions of this Agreement, MLNM shall provide compensation to OBI as set
forth below in this Article V.


5.1      Call
Costs Payments.


5.1.1        “Call Costs” means an amount equal to [**]
Dollars ($[**]) with respect to each First Position Call and [**] Dollars
($[**]) with respect to each Second Position Call.  Beginning on January 1, 2008, each Call Cost
shall be increased or decreased by the percentage increase or decrease in the
applicable CPI as of the then most recent annual period ending December 31 over
the level of such CPI on December 31, 2006.


5.1.2        In
addition to the other amounts payable pursuant to this Article V, MLNM shall
pay OBI [**] percent ([**]%) of each Call Cost (the “Call Cost Payment”) with respect to each Call made by Sales
Representatives to Co-Promote the Product to MLNM Targets in accordance with
the Call Plan up to a maximum amount equal to (a) [**] Dollars ($[**]) per
calendar quarter in each of 2007 and 2008 for all First Position Targets and
(b) [**] Dollars ($[**]) per calendar quarter in 2007 and 2008 for all Second
Position Targets.  Beginning on January
1, 2008, the maximum amounts set forth under subsections (a) and (b) above with
respect to Call Cost Payments for 2008 shall be increased or decreased by the
percentage increase or decrease in the applicable CPI as of the then most
recent annual period ending December 31 over the level of such CPI on December
31, 2006.


5.2      Variable
Costs. In addition to the other amounts payable
pursuant to this Article V, MLNM shall also make the following payments to OBI
(collectively referred to as “Variable Cost
Payments”):



 15
 









5.2.1        Incentive
Compensation.  Quarterly payments of
[**] Dollars ($[**]) with respect to each of 2007 and 2008 for incentive
compensation (the “Incentive Payments”)
for those OBI sales personnel who are directly involved in the Co-Promotion
provided that OBI submits a report of total Variable Cost Payments due in
accordance with Section 5.5.2 of this Agreement.  OBI shall use the Incentive Payments in
accordance with Section 3.3.3 of this Agreement.


5.2.2        Core
Promotional Materials.  An “in-kind”
payment of up to [**] Dollars ($[**]) (the “In
Kind Payment”) in each of 2007 and 2008 in Core Promotional
Materials to be used by the Sales Representatives.  This payment shall be calculated using the “direct
costs” of MLNM to produce such Core Promotional Materials.  The cost of any Core Promotional Materials in
excess of the In Kind Payment in either 2007 or 2008 must be agreed to by the
Co-Promotion and Marketing Committee.  If
approved, the amount in excess of the In Kind Payment shall be shared equally
by the Parties unless otherwise agreed by the Co-Promotion and Marketing
Committee.  The In Kind Payment may not
be applied towards the cost of Promotional Materials requested by OBI other
than Core Promotional Materials pursuant to Section 2.4.3.  OBI shall pay its share of the production
costs for the copies of the Core Promotional Materials provided by MLNM in
excess of the In Kind Payment within [**] days of invoice from MLNM.


5.2.3        Co-Promotion
Manager.  [**] Dollars ($[**]) in
each of 2007 and 2008 to reimburse OBI its actual, out-of-pocket costs of a
fully dedicated employee of OBI who is at a director level or above, to oversee
and manage OBI’s day-to-day operations under this Agreement (the “Co-Promotion Manager”). The foregoing
amounts shall be pro-rated if the Co-Promotion Manager is directly involved in
these activities only for partial Measurement Periods.


5.2.4        Field
Sales Training.  MLNM shall reimburse
OBI for actual, out-of-pocket incremental costs incurred by OBI as a result of
training activities of  Co-Promotion
Representatives that are for the purposes of training related exclusively to
the Co-Promotion of the Product in connection with the Training Plan (i.e. no
reimbursement shall be due in connection with training activities that are only
partially related to the Co-Promotion of the Product or outside of the Training
Plan) in the following amounts:


(a)           Up
to an amount not to exceed [**] Dollars ($[**]) in 2006; provided, however, to
the extent that MLNM performs any of OBI’s obligations with respect to
training activities per the Training Plan in 2006, including, without limitation,
the production of training binders in order to timely complete the
required activities under the Co-Promotion Plan, then the costs incurred by
MLNM in performing OBI’s obligations, shall be deducted from the $[**];


(b)           Up
to an amount not to exceed [**] Dollars ($[**]) in 2007; and


(c)           Up to an amount not to exceed [**] Dollars ($[**]) in
2008.



 16
 









5.3      Commissions.  In addition to the other amounts payable
pursuant to this Article V, MLNM shall also pay OBI commissions as set forth in
this Section 5.3 (the “Commission Payments”):


5.3.1        With
respect to 2007 calendar year Net Sales during the Co-Promotion Term, MLNM
shall pay OBI:


[**] percent
([**]%) of that portion of such annual aggregate Net Sales that are greater
than [**] Dollars ($[**] shall be referred to as “2007 Baseline”), but are less
than or equal to [**] Dollars ($[**]), and


[**] percent
([**]%) of that portion of annual aggregate Net Sales that exceed [**] Dollars
($[**]):


 


	
  2007 Baseline
  of Annual 

  Aggregate Net Sales of 

  Product

  	
  Amount of Annual Aggregate 

  Net Sales of the Product that 

  Exceed the 2007 Baseline

  	
  Commission Fee (as a % 

  of such Net Sales Above 

  2007 Baseline)

  
	
  $[**]

  	
  $[**] - $[**]

  	
  [**]%

  
	
   

  	
  Greater than
  $[**]

  	
  [**]%

  



 


5.3.2        With
respect to 2008 calendar year Net Sales during the Co-Promotion Term, MLNM
shall pay OBI:


[**] percent
([**]%) of that portion of such annual aggregate Net Sales that are greater
than [**] Dollars ($[**] shall be referred to as “2008 Baseline”) but are less
than or equal to [**] Dollars ($[**]), and,


[**] percent
([**]%) of that portion of annual aggregate Net Sales that exceed [**] Dollars
($[**]). 


	
  2008 Baseline
  of Annual 

  AggregateNet Sales of 

  Product

  	
  Amount of Annual Aggregate 

  Net Sales of the Product that 

  Exceed the 2008 Baseline

  	
  Commission Fee (as a %

  of such Net Sales Above 

  2008 Baseline)

  
	
  $[**]

  	
  $[**] - $[**]

  	
  [**]%

  
	
   

  	
  Greater than
  $[**]

  	
  [**]%

  



 


5.3.3        Thus,
pursuant to Sections 5.3.1 and 5.3.2, Commission Payments on aggregate Net
Sales of the Product during the Co-Promotion Term in a calendar year shall be
paid at the rate applicable to the portion of Net Sales within each of the
applicable defined Net Sales levels during such calendar year.  By way of example:


If, aggregate Net Sales of the Product in 2007 equal $[**], then the
commission fees payable to OBI would be calculated by adding U + V = W:



 17
 









(a)           Where
U equals a Commission Payment of [**]% of that portion of the Net Sales that is
greater than the 2007 Baseline  but less
than or equal to $[**], which equals [**];


(b)           Where
V equals a Commission Payment of [**]% of that portion of Net Sales which
exceeds $[**], which equals [**]; and


(c)           W
equals $[**].


5.3.4        The
2007 Baseline and the 2008 Baseline shall apply with respect to all Commission
Payments based on Net Sales for 2007 and 2008, respectively, including, without
limitation, to the extent such Commission Payments are payable  pursuant to Section 8.3.2.  MLNM shall determine when Net Sales occur for
purposes of this Article V in a manner consistent with MLNM’s customary and
usual accrual procedures, consistently applied.


5.4      Tail Payment.


5.4.1        In
addition to the other amounts payable pursuant to this Article V, in the event
that the sum of the aggregate Net Sales of the Product during the Co-Promotion
Term in 2007 and 2008 exceeds [**] Dollars ($[**]), then additional commissions
shall be payable by MLNM to OBI based on Net Sales in 2009 and 2010 (each, a “Tail Payment”), as follows:


(a)           In
the event that Net Sales in 2009 exceed Four Hundred Million Dollars ($[**]),
MLNM shall pay OBI a Tail Payment based on Net Sales in 2009 calculated as
follows:


Tail Payment = [**], up
to an amount not to exceed $[**]; and


(b)           In
the event that Net Sales in 2010 exceed [**] Dollars ($[**]), MLNM shall pay
OBI a Tail Payment based on Net Sales in 2010 calculated as follows:


Tail Payment = [**], up
to an amount not to exceed $[**].


5.4.2        By
way of example, in the event that aggregate Net Sales of the Product are
$[**].  In such events, the [**]
calculated for use in determining the Tail Payments in 2009 and 2010 would be:
[**].


5.4.3        No
Tail Payment shall be earned or become payable based on Net Sales in 2009 or
2010 if the sum of the aggregate Net Sales in 2007 and 2008 is less than [**]
Dollars ($[**].



 18
 









5.5      Payment
Terms.


5.5.1        With respect to any payments due under Section 5.2.4(a),
within [**] days after the end of 2006, OBI shall submit to MLNM a report
providing in reasonable detail an accounting of the applicable training costs
incurred by OBI in 2006.  Within [**]
days following MLNM’s receipt of such report, MLNM shall pay to OBI any
undisputed amounts contained in such report.


5.5.2        Subject
to Section 3.2, with respect to Call Cost Payments and Variable Cost Payments
for each of 2007 and 2008, within [**] days after the end of each quarter, OBI
shall submit to MLNM a report providing in reasonable detail an accounting of
the total Call Cost Payments and the total Variable Cost Payments due for each
quarter of 2007 and 2008 Within [**] days following MLNM’s receipt of such
report, MLNM shall pay to OBI any undisputed amounts contained in such report.


5.5.3        Within
[**] days after the end of each quarter, MLNM shall submit to OBI a report
providing in reasonable detail an accounting of the type and quantity of Core
Promotional Materials provided to OBI as In-Kind Payments under Section 5.2.2,
as well as the direct costs of MLNM to produce such Core Promotional Materials
and to be charged against the amounts permitted under Section 5.2.2.


5.5.4        MLNM
shall calculate the Commission Payments payable to OBI for each of 2007 and
2008, if any, and pay the same to OBI within [**] days of the end of the
applicable year.  Together with each such
payment, MLNM shall submit to OBI a report providing in reasonable detail an
accounting of all Net Sales made during such year and the calculation of the
applicable Commission Payments.


5.5.5        MLNM
shall calculate the Tail Payments payable to OBI for each of 2009 and 2010, if
any, and pay the same to OBI within [**] days of the end of the applicable
year.  Together with each such payment,
MLNM shall submit to OBI a report providing in reasonable detail an accounting
of all Net Sales made during such year and the calculation of the applicable
Tail Payments.


5.5.6        All
payments to be made by one Party to the other Party  pursuant to this Agreement shall be made
electronically pursuant to wire transfer instructions provided by the receiving
Party to the paying Party, as may be updated from time to time.


5.5.7        Each
Party will provide the other Party, to the extent such information is  available, annual estimates of the payments
described above in this Section 5.5 to assist the other Party in its accounting
practices regarding any payments under this Agreement.


5.6      Late
Payments.  Each Party shall pay interest to the
other Party on the aggregate amount of any undisputed payments that are not
paid on or before the date such payments are due under this Agreement at a rate
per annum equal to the lesser of one percent (1%) per month or the highest rate
permitted by applicable law, calculated on the number of days such payments are
paid after the date such payments are due and compounded monthly.



 19
 









5.7      Promotion Expenses.  Except as otherwise expressly set
forth in this Agreement, each Party shall bear and be solely responsible for
all costs and expenses incurred by it in connection with the promotion of the
Product and the performance of its obligations under this Agreement.


5.8      Tax
Matters.


MLNM shall
make all payments to OBI under this Agreement without deduction or withholding
for any Taxes except to the extent that any such deduction or withholding is
required by Applicable Law.  Each Party
shall otherwise be responsible for its own income taxes and any other Taxes
payable by such Party arising under or in connection with this Agreement and shall
pay all such Taxes and file any applicable tax returns on a timely basis.   Any tax required to be withheld on amounts
payable under this Agreement shall promptly be paid by MLNM on behalf of OBI to
the appropriate governmental authority, and MLNM shall furnish OBI with proof
of payment of such tax.  Any such tax required to be withheld shall be an
expense of and borne by OBI.


ARTICLE VI

ADVERSE EVENT REPORTING; FIELD REPORTS; PRODUCT COMPLAINTS,

GOVERNMENTAL COMMUNICATIONS; STATE REPORTING.


6.1      Adverse
Events.  OBI
shall, and shall cause each of its Sales Representatives to provide notice to
MLNM within [**] of the time it, he or she becomes aware of an Adverse Event
associated with use of the Product (whether or not the reported effect is (a)
described in the full prescribing information or the published literature with
respect to such Product or (b) determined to be attributable to such
Product), or any information in or coming into its, his or her possession or
control concerning such Adverse Event by contacting the MLNM Medical Drug
Information Call Center at 1-866-VELCADE or by completing the adverse event
report form provided by MLNM and submitting such form to MLNM or its designated
safety contractor.


6.2      Field
Reports.  OBI
shall, and shall cause each of its Sales Representatives to, notify MLNM within
[**] of the time it, he or she becomes aware of any information that might
necessitate the filing by MLNM of a field alert report, as required under 21
C.F.R. §314.81(b)(1) (a “Field Alert”),
as such regulation may be amended from time to time, by contacting the MLNM
Call Center at 1-866-VELCADE.


6.3      Field
and Efficacy.


6.3.1        OBI
shall immediately notify MLNM of any information OBI receives regarding any
threatened or pending action by any Governmental Authority that may affect the
safety or efficacy claims of the Product or the continued marketing and
Co-Promotion of the Product.  Upon
receipt of any such information, MLNM may consult with OBI in an effort to arrive
at a mutually acceptable procedure for taking appropriate action; provided, however, that 



 20
 









nothing in this Agreement shall restrict MLNM’s ability to make a
timely report of such matter to any Governmental Authority or take other action
that it deems to be appropriate or required by Applicable Law.


6.3.2        MLNM
shall notify OBI immediately of any formal communication received by MLNM from
the FDA regarding any threatened or pending action which may affect the safety
or efficacy claims of the Product or the continued marketing and Co-Promotion
of the Product in the Co-Promotion Territory.


6.4      Product
Complaints.  OBI
shall, and shall cause each of its Sales Representatives to, notify MLNM as
soon as possible, but no later than [**] of the time it, he or she becomes
aware of any Product quality complaint associated with the use of the Product,
including but not limited to those Product quality complaints associated with
Adverse Events, by contacting the  MLNM
Medical Drug Information Call Center at 1-866-VELCADE.


6.5      MLNM
Responsibility.


6.5.1        MLNM
shall be solely responsible for (a) taking all actions and conducting all
communication with all Third Parties in respect of the Product in the United
States and its territories and possessions (other than the activities to be
performed by OBI in accordance with the terms of this Agreement or the
Co-Promotion Plan), including responding to all Product quality complaints in
respect thereof, including complaints related to tampering or contamination,
and (b) investigating, communicating and processing all Product quality
complaints, information it receives under Section 6.3 as it relates to safety
and efficacy claims, Adverse Events, and Field Alerts in respect of the Product
in accordance with MLNM’s standard procedures, the Pharmacovigilance Agreement
entered into by MLNM and Ortho Biotech, dated March 8, 2004, as amended from
time to time, and the Quality Agreement entered into by MLNM and Cilag AG, an
Affiliate of OBI, dated January 5, 2005, as amended from time to time, as
applicable.


6.5.2        MLNM
shall be solely responsible for the preparation, submission and prosecution of
any application, report, submission and response to any Governmental
Authorities in connection with the Product, including reporting Adverse Events
and Field Alerts; provided that when feasible, MLNM
shall consult with OBI with respect to any such matter and give due
consideration to any comments provided by OBI.


6.6      OBI
Communications. 
Unless required by Applicable Law, OBI shall not communicate directly
with any Governmental Authorities regarding the Product or otherwise take any
action concerning any application, registration, authorization or approval
under which the Product is sold.  OBI
shall notify MLNM promptly of any communications with any Government
Authorities concerning the Product and shall, to the extent permitted by
Applicable Law, attach copies of all such communications to the notice sent.


6.7      OBI
Cooperation.  OBI
shall, at MLNM’s expense, cooperate with all of MLNM’s reasonable requests and
use its reasonable efforts to assist MLNM in connection with (a) preparing any
and all such reports with Governmental Authorities, (b) preparing and 



 21
 









disseminating all such communications with third parties, and (c)
investigating and responding to any Product quality complaint or adverse event
related to the Product.


ARTICLE VII

AUDIT RIGHTS


7.1      Audit
Right Period. 
MLNM and OBI each agree that it shall, maintain true and complete books
and records with respect to the performance of their obligations hereunder,
including without limitation, reports, training assessments, field
communications and directions, communications regarding Adverse Events and
communications to or from Governmental Authorities, of items underlying all
payment calculations, Net Sales and invoices related to this Agreement or the
Co-Promotion Plan (the “Books and Records”).


7.2      Compliance
With Laws. Subject
to OBI’s right to preserve its attorney-client privilege,,  MLNM and/or its authorized agent may, at
anytime during the Co-Promotion Term, with prior written notice to OBI and
during normal business hours, perform an audit of the Books and Records of OBI
for the purpose of verifying compliance with Applicable Laws relating to
Federal Health Care Programs, other health care compliance laws and related
industry guidelines by OBI in connection with the performance by OBI of its
obligations hereunder.  MLNM shall bear
the costs of such audit(s).If MLNM reasonably believes after such an audit that
OBI is not in compliance with such laws or such industry guidelines, then OBI
shall take the necessary steps to correct such non-compliance.


7.3      Compliance
with Agreement.  MLNM
and/or its authorized agent may, up to [**] in any given calendar year during
the Co-Promotion Term with prior written notice to OBI and during a period
mutually agreeable to both Parties, perform an audit of the Books and Records
of OBI for the purpose of verifying compliance by OBI with this Agreement and
the Co-Promotion Plan.  MLNM shall bear
the costs of such audit(s).


7.4      Payment
Audit.  Each Party
will have the right annually at its own expense to have an independent,
certified public accountant, selected by such Party and reasonably acceptable
to the other Party, review any Books and Records of the other Party in the
location(s) where such records are maintained by the other Party upon
reasonable notice and during regular business hours and under obligations of
confidence, for the sole purpose of verifying the basis and accuracy of
payments made under this Agreement within the prior thirty-six (36) month
period.  If the review of such Books and
Records reveals there was a deficiency or overpayment with respect to any
amounts due, then the Party owing payment shall promptly pay to the other Party
the full amount of the deficiency or repay the full amount of the overpayment
together with interest calculated in the manner provided in
Section 5.6.  If any such
discrepancies are greater than five percent (5%) of the amounts actually due,
the non-reviewing Party shall pay all of the costs of such review.


 



 22















ARTICLE VIII

TERMINATION


8.1          Termination.  Except
for the provisions expressly stated to survive pursuant to Section 14.18 or in
the particular provision, this Agreement shall terminate as follows:


8.1.1        Automatically, effective upon the expiration of the Co-Promotion
Term;


8.1.2        Effective thirty (30) days following receipt of the
terminating Party’s written termination notice by the non-terminating Party, as
applicable:


(a)           By written notice in accordance with Section 3.2.4 from
MLNM for an OBI Non-Performance Breach;


(b)           By written notice from the non-breaching Party following a
material breach of this Agreement by the other Party (other than an OBI
Non-Performance Breach), where such breach is not cured by the other Party
within thirty (30) days of written notice of the breach by the non-breaching
Party, or if the breach is, by its very nature, not curable, then upon written
notice by the non-breaching Party;


(c)           By written notice from MLNM in the event of a Change of
Control of MLNM (such notice to be given no later than thirty (30) days
following such Change of Control);


(d)           By written notice from OBI in the event of a Change of
Control of MLNM where a Competitor is a party to such Change of Control (such
notice to be given no later than forty-five (45) days after such Change of
Control);


(e)           By written notice from MLNM, in the event that the
Collaboration and License Agreement is terminated due to a material breach by
OBI, where such breach was not cured within any applicable cure period;


(f)            By written notice from OBI, in the event that the
Collaboration and License Agreement is terminated due to a material breach by
MLNM, where such breach was not cured within any applicable cure period;


(g)           By three (3) months prior written notice from MLNM at any
time following MLNM’s receipt of written notice from OBI that OBI is electing
to terminate the Collaboration and License Agreement for convenience in
accordance with the terms thereof; and


(h)           By written notice by a Party to the other Party in the
event that one of the following events occurs (either, an “Unexpected Market Event”):


(A)                              If for three (3)
consecutive calendar quarters, Net Sales for such quarters are less than
threshold sales, where threshold sales equal [**] Dollars ($[**]) for each
calendar quarter of 2007 and [**] Dollars ($[**]) for each calendar quarter of
2008; or


 



 23
 









 


(B)                                The non-terminating
Party enters into a corporate integrity agreement with a Governmental Authority
that would require the terminating Party to become a party to such agreement or
otherwise would subject the terminating Party to such agreement’s terms.


8.1.3        Automatically, effective upon MLNM’s written notice to OBI in
the event that MLNM commences withdrawal of the Product from the market in the
Co-Promotion Territory for all indications and uses for health or safety
reasons or upon termination of the Collaboration and License Agreement by OBI
for safety issues pursuant to the terms of Section 12.3(b) thereof.


8.2          Termination for Change in Applicable
Laws.  In the event
that a Party becomes “At Risk”, then such Party shall be entitled to elect, by
written notice to the other Party, to terminate this Agreement effective
immediately upon receipt of such notice by the other Party.  A Party shall be “At Risk”
if:


8.2.1        Such Party receives a
final non-appealable determination by a Governmental Authority having
jurisdiction with respect thereto, or there is a change in Applicable Law
relating to Federal Health Care Programs, in related health care laws or
regulations, or in the Act or FDA regulations, which determination or change in
such Applicable Law as applied does, or is likely to, based upon the written
opinion of legal counsel to the such Party:


(a)           Prohibit the execution,
implementation or continuance of this Agreement by such Party or the
Co-Promotion of the Product in the manner contemplated by this Agreement; or


(b)           By virtue of this
Agreement or the Co-Promotion of the Product in the manner contemplated by this
Agreement, result in:


(i)            the revocation of any material state and/or federal
general operating license, permit or certificate of such Party; or


(ii)           the subjection of such Party to a significant level of
governmental scrutiny or reporting requirements; and


8.2.2        The Parties, using commercially reasonable efforts and acting
in good faith to preserve the relationship and the expectations and intent of
the Parties hereto, are unable to reach a mutual agreement to amend this
Agreement sufficiently to meet the requirements of the determination or change
in Applicable Law on or prior to the earlier of (x) the thirtieth (30th) day
following the change in Applicable Law, or (y) the effective date, if any, of
such change in Applicable Law.


 



 24
 









 


8.3          Effect of Termination.


8.3.1        Materials.  Upon the effective date of termination of this
Agreement, other than Sections 8.1.2(a), (e) and (f) which shall take effect
immediately upon notice, OBI shall immediately (a) cease, and cause its
Co-Promotion Representatives to cease all Co-Promotion of the Product, (b)
discontinue the use of any Promotional Materials provided pursuant to this
Agreement; and (c) discontinue the use of any MLNM sales data provided
hereunder.  OBI shall, as requested by
MLNM, either promptly return to MLNM all Promotional Materials, all training
materials and all other materials related to the Product provided by MLNM
pursuant to this Agreement or the Co-Promotion Plan or certify to MLNM to the
destruction of same.  With respect to any
information, data or reports provided by MLNM to OBI under this Agreement,
including, without limitation, MLNM sales data, upon the effective date of
termination of this Agreement, OBI shall remove such information from its
internal systems and certify to MLNM to such removal.


8.3.2        Payments.  Upon
expiration or termination of this Agreement, the obligations of MLNM to pay OBI
any earned and unpaid amounts pursuant to Sections 5.1, 5.2, and 5.3, to make
Tail Payments, if payable, pursuant to Section 5.4, and to pay any other earned
and unpaid amounts pursuant to any other provision of this Agreement shall
survive except as follows:


(a)           In the event that this Agreement is terminated by MLNM
pursuant to Section 8.1.2(a) (OBI Non-Performance Breach), then, (i) MLNM’s
obligations to pay Call Cost Payments, Variable Cost Payments and Commission Payments
shall be modified as set forth in Section 3.2.4, and (ii) OBI shall be
obligated to pay MLNM a payment of Ten Million Dollars ($10,000,000) (the “Termination Fee”).  For clarity, no Call Cost Payments, Variable
Cost Payments, nor Commission Payments shall be earned after the effective date
of termination.  In such event no Tail
Payment shall be due or paid.


(b)           In the event this Agreement is terminated by MLNM pursuant
to Section 8.1.2(b) (i.e. a material uncured breach by OBI), then MLNM shall be
obligated to (i) make Call Cost Payments and Variable Cost Payments (subject to
the maximum amounts set forth in Section 5.1 and 5.2) that have been earned or
are Non-Cancellable through the effective date of termination and (ii) the
Pro-Rata Commission. For clarity, no Call Cost Payments, Variable Cost
Payments, nor Commission Payments shall be earned  after the effective date of termination.  In such event no Tail Payment shall be due or
paid.


(c)           In the event this Agreement is terminated by OBI pursuant to
Section 8.1.2(b) (i.e. a material uncured breach by MLNM), then MLNM shall be
obligated to make (i) Call Cost Payments and Variable Cost Payments (subject to
the maximum amounts set forth in Section 5.1 and 5.2) that have been earned or
are Non-Cancellable through the effective date of termination and (ii) the
Pro-Rata Commission. For clarity, no Call Cost Payments, Variable Cost
Payments, nor Commission Payments shall be earned after the effective date of
termination.  In such event no Tail
Payment shall be due or paid.


(d)           In the event that this Agreement is terminated by MLNM
pursuant to Section 8.1.2(c)  (i.e.
a Change of Control of MLNM), then MLNM shall be obligated to pay 


 



 25
 









 


(i) Call Cost Payments and Variable Cost
Payments (subject to the maximum amounts set forth in Section 5.1 and 5.2) that
have been earned or are Non-Cancellable through the effective date of
termination and (ii) the Pro-Rata Commission and (iii) as applicable, one of
the following:  (x) a payment of [**]
Dollars ($[**]) if such Change of Control occurs on or before September 30,
2007; or (y) a payment of [**] Dollars ($[**]) if such Change of Control occurs
after September 30, 2007 and on or before June 30, 2008; or (z) a payment of
[**] Dollars ($[**]) if such Change of Control occurs after June 30, 2008 and
on or before December 31, 2008.  For
clarity, no Call Cost Payments, Variable Cost Payments, Commission Payments or
Tail Payments shall be earned after the effective date of termination.  Notwithstanding anything to the contrary in
this Agreement any termination by MLNM pursuant to Section 8.1.2 (c) shall not
constitute a breach of this Agreement nor entitle OBI to additional remedies
other than those specified in this Section 8.3.2(d).


(e)           In the event that this Agreement is terminated by OBI
pursuant to Section 8.1.2(d)  (i.e.
a Change of Control of MLNM) or Section 8.1.3 of this Agreement, then MLNM
shall be obligated to pay the (i) Call Cost Payments and Variable Cost Payments
(subject to the maximum amounts set forth in Section 5.1 and 5.2) that have
been earned or are Non-Cancellable through the effective date of termination
and (ii) the Pro-Rata Commission.  For
clarity, no Call Cost Payments, Variable Cost Payments nor Commission Payments
shall be earned after the effective date of termination.  In such event no Tail Payment shall be due or
paid.


(f)            In the event that this Agreement is terminated by MLNM
pursuant to Section 8.1.2(e)  (i.e.
a termination of the Collaboration and License Agreement for any reason other
than a material uncured breach by MLNM), then MLNM shall be obligated to pay
(i) Call Cost Payments and Variable Cost Payments (subject to the maximum
amounts set forth in Section 5.1 and 5.2) that have been earned or are
Non-Cancellable through the effective date of termination and (ii) the Pro-Rata
Commission.  For clarity, no Call Cost
Payments, Variable Cost Payments nor Commission Payments shall be earned after
the effective date of termination.  In
such event no Tail Payment shall be due or paid.


(g)           In the event that this Agreement is terminated by OBI
pursuant to Section 8.1.2(f)  (i.e.
a termination of the Collaboration and License Agreement pursuant to a material
uncured breach by MLNM) then MLNM shall be obligated to pay (i) Call Cost
Payments and Variable Cost Payments (subject to the maximum amounts set forth
in Section 5.1 and 5.2) that have been earned or are Non-Cancellable through
the effective date of termination and (ii) the Pro-Rata Commission.  For clarity, no Call Cost Payments, Variable
Cost Payments,  nor Commission Payments
shall be earned after the effective date of termination.  In such event no Tail Payment shall be due or
paid.


(h)           In the event that this Agreement is terminated by MLNM
pursuant to Section 8.1.2(g)  (i.e.
termination for convenience of the Collaboration and License Agreement by OBI),
then MLNM shall only be obligated to pay Call Cost Payments and Variable Cost
Payments (subject to the maximum amounts set forth in Section 5.1 and 5.2) that
have been earned or are Non-Cancellable through the effective date of
termination.  For clarity, no Call Cost
Payments nor Variable Cost Payments shall be earned after the effective date of
termination.  In such event no Commission
Payments or Tail Payments shall be due or paid.


 



 26
 









 


(i)            In the event that this Agreement is terminated by OBI or
MLNM pursuant to Section 8.1.2(h) of this Agreement (i.e. an Unexpected Market
Event) or Section 8.2 of this Agreement (i.e. Change in Applicable Laws), then
MLNM shall only be obligated to pay Call Cost Payments and Variable Cost
Payments (subject to the maximum amounts set forth in Section 5.1 and 5.2) that
have been earned or are Non-Cancellable through the effective date of
termination.  For clarity, no Call Cost Payments
nor Variable Cost Payments shall be earned after the effective date of
termination.  In such event no Commission
Payments or Tail Payments shall be due or paid..


8.3.3        Liquidated Damages. 
The Parties agree that any amounts that either Party may be required to
forfeit or pay as a Termination Fee pursuant to Section 8.3.2 are intended to
be liquidated damages and not to provide for penalties, that such amounts are a
reasonable estimation of the anticipated losses that are likely to be suffered
by the applicable Party in the event of a termination of this Agreement based
on the circumstances under which they are to be forfeited, and that the actual
losses are difficult to ascertain or incapable of estimation at this time.


8.3.4        Non-Exclusive Remedies; Right to Offset.  Except as expressly provided in Section
3.2.5, the consequences set forth in this Section 8.3 are not intended to be
the exclusive remedies of the Parties in connection with the breach of or
termination of this Agreement.  To the
extent not otherwise precluded under Section 14.13 of this Agreement, in the
event that a Party terminating this Agreement pursuant to Section 8.1.2(b) or
8.1.2(e) has suffered any losses, costs, expenses, damages or penalties as a
result of the actions of the other Party that gave rise to the right of
termination, then the terminating Party may offset the amounts of such losses,
costs, expenses or penalties against any amounts owed by the terminating Party
pursuant to Section 8.3.2. 


8.4          Right of First Negotiation.  In the event of termination of this Agreement
by MLNM pursuant to Section 8.1.2(a) (OBI Non-Performance Breach), Section
8.1.2(b) (i.e. a material uncured breach by OBI) or by OBI pursuant to Section
8.1.2(d)  (i.e. a Change of Control of MLNM),
MLNM shall be free to enter into an exclusive or non-exclusive co-promotion
agreement with respect to the Product in the Co-Promotion Territory (both as
defined in this Agreement) for a period or [**] months thereafter without any
further obligation to OBI under Section 6.2 of the Collaboration and License
Agreement with respect thereto.


ARTICLE IX

RESTRICTIVE COVENANTS


9.1          Acknowledgement.  The Parties recognize that
as a result of their relationship pursuant to this Agreement, each Party shall
acquire Confidential Information regarding the business of the other Party
which is extremely valuable to that Party and which would be extremely
detrimental if used outside the scope of this Agreement.  Such Confidential Information may include
information about a Party’s employees and other business relations, in which a
Party invests substantial time and resources to develop and maintain.  In recognition of the foregoing, and as
material inducement to enter into this Agreement, each Party agrees to be bound
by the covenants set forth below in this Article IX.


 



 27
 









 


9.2          Confidentiality.


9.2.1        During the Pre-Commencement Period and
the Co-Promotion Term of this Agreement and for a period of [**] years
thereafter, each Party agrees to keep in confidence and not to disclose to any
Third Party, or use for any purpose, except pursuant to, and in order to carry
out, the terms and objectives of this Agreement, any Confidential Information
of the other Party.  As used herein, “Confidential Information” shall mean all
trade secrets or confidential or proprietary information of the disclosing
Party designated as such in writing by the disclosing Party, whether by letter
or by the use of an appropriate stamp or legend, prior to or at the time any
such trade secret or confidential or proprietary information is disclosed by
the disclosing Party to the receiving Party. 
Notwithstanding the foregoing, (x) sales data provided pursuant to
Section 2.2.3(b) and Training Materials provided pursuant to Section 2.3.2
shall constitute Confidential Information under all circumstances and only (y)
information which is orally or visually disclosed to the receiving Party by the
disclosing Party, or is disclosed in writing without an appropriate letter,
stamp or legend, shall constitute Confidential Information if the disclosing
Party, within thirty (30) days after such disclosure, delivers to the receiving
Party a written document or documents describing or summarizing such
information and referencing the place and date of such oral, visual or written
disclosure and the names of the employees or officers of the receiving Party to
whom such disclosure was made.  The terms
of this Agreement shall be considered Confidential Information hereunder.  The restrictions on the disclosure and use of
Confidential Information set forth in the first sentence of this
Section 9.2.1 shall not apply to any Confidential Information that:


(a)           was known by the receiving Party prior to disclosure by
the disclosing Party hereunder (as evidenced by the receiving Party’s written
records or other competent evidence);


(b)           is or becomes part of the public domain through no fault
of the receiving Party;


(c)           is disclosed to the receiving Party by a Third Party
having a legal right to make such disclosure without violating any
confidentiality or non-use obligation that such Third Party has to the
disclosing Party; or


(d)           is independently developed by personnel of the receiving
Party who did not have access to the Confidential Information (as evidenced by
the receiving Party’s written records or other competent evidence).


9.2.2        In addition, if either Party is required to disclose
Confidential Information of the other Party by Applicable Law, including
without limitation by the rules or regulations of the United States Securities
and Exchange Commission or similar regulatory agency in a country other than
the United States or of any stock exchange or NASDAQ, such Party shall provide
prior notice of such intended disclosure to such other Party if possible under
the circumstances and shall disclose only such Confidential Information of such
other Party as is required to be disclosed. 
In addition, either Party may disclose to bona fide potential investors,
lenders and acquirors/acquirees, and to such Party’s consultants and advisors,
the existence and terms of this Agreement to the extent necessary in connection
with a proposed equity or debt financing of 


 



 28
 









 


such Party, or a proposed acquisition or
business combination, so long as such recipients are bound in writing to
maintain the confidentiality of such information in accordance with the terms
of this Agreement.


9.2.3        Each Party agrees that it shall provide or permit access to
Confidential Information received from the other Party and such Party’s
Affiliates and representatives only to the receiving Party’s and the receiving
Party’s Affiliates’ employees, consultants, advisors, sublicensees and
sub-distributors who in such Party’s reasonable judgment have a need to know
such Confidential Information to assist the receiving Party with the activities
contemplated by this Agreement and who are subject to obligations of
confidentiality and non-use with respect to such Confidential Information
similar to the obligations of confidentiality and non-use of the receiving
Party pursuant to Section 9.2.1; provided that MLNM and OBI shall each remain
responsible for any failure by its and its Affiliates’ respective employees,
consultants, advisors and sublicensees and sub-distributors, to treat such
Confidential Information as required under Section 9.2.1 (as if such employees,
consultants, advisors and sublicensees and sub-distributors were Parties
directly bound to the requirements of Section 9.2.1).


9.3          Non-Solicitation.  Each Party shall not, and
shall cause its Affiliates who are involved in the performance of this
Agreement not to, directly or indirectly solicit for employment any employee of
the other Party who has been directly involved in the performance of any  obligations of a Party pursuant to this Agreement for a
period of [**] after the earlier of (a) the termination or expiration of this Agreement,
or (b) the termination of such individual’s employment with the other Party; provided, this non-solicitation restriction shall not apply
to the solicitation of or employment of any person pursuant to any general
solicitation of employment not specifically directed to any Party’s employees.


9.4          Non-Competition.  During the Co-Promotion Term, (a) OBI shall
not promote in the Co-Promotion Territory any pharmaceutical product that is a
Competing Product (as defined in the Collaboration and License Agreement) or
any other therapeutic for the treatment of multiple myeloma or mantle cell
lymphoma, and (b) MLNM shall not promote in the Co-Promotion Territory (i)
Aranesp, Epogen or Mircera, or (ii) doxorubicin except that MLNM shall have the
right notwithstanding the foregoing (a) to promote the Product for use in
combination with any such product and (b) to promote any such product solely as
a result in the Change of Control of MLNM.


ARTICLE X

INTELLECTUAL PROPERTY


10.1        The Product.  OBI shall Co-Promote the Product under “VELCADE®”
or such other Product Trademark as MLNM may direct in writing.  In connection with OBI’s right to have its
name included on the Core Promotional Materials pursuant to Section 2.4.2, OBI
hereby grants to MLNM, during the Co-Promotion Term and any Extension Term(s),
a non-exclusive, royalty free license to use OBI’s name solely for such
purposes.


 



 29
 









 


10.2        Ownership of Intellectual Property Rights.


10.2.1      The Product.  The
Parties acknowledge and agree that ownership of the rights, title and interest
in and to the Product and Product Trademarks, including any form or embodiment
thereof, and the goodwill now and hereafter associated therewith shall continue
to be governed in accordance with the Collaboration and License Agreement.  MLNM owns the copyright to all the training
materials and Promotional Materials and Product Labels and Inserts.


10.2.2      New Intellectual Property.  Each Party shall exclusively own all
Intellectual Property developed solely by such Party, its employees, agents and
consultants in connection with this Agreement. 
The Parties shall jointly own all Intellectual Property developed
jointly by employees, agents and consultants of OBI and employees, agents and
consultants of MLNM arising out of or relating to this Agreement, on the basis
of each Party having an undivided interest in the whole, provided,
that, the Target List and the Co-Promotion Plan (but not the Call Plan) and any
other materials arising out of the performance by MLNM of its obligations under
this Agreement shall be deemed to be the property of MLNM and shall not be
deemed jointly developed Intellectual Property.


10.3        No Right or License.  To the extent that OBI does not already have
such license to or right, title or interest pursuant to the Collaboration and
License Agreement, except as set forth herein, nothing in this Agreement shall
give OBI a license to or any right, title or interest in or to the Product, the
Product Trademarks, Product Copyrights, or other Intellectual Property of MLNM,
its Affiliates or licensors related to the Product or to any other property of
MLNM, its Affiliates or licensors.


ARTICLE XI

REPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.


11.1        Representations of Authority.  MLNM and OBI each represents and warrants to
the other Party that, as of the Effective Date, it has full right, power and
authority to enter into this Agreement and to perform its respective
obligations under this Agreement and that it has the right to grant to the
other the rights granted pursuant to this Agreement as set forth herein.


11.2        Consents.  MLNM and OBI each
represents and warrants to the other Party that 
all necessary consents, approvals and authorizations of all Government
Authorities and other persons required to be obtained by it as of the Effective
Date in connection with the execution, delivery and performance of this
Agreement have been obtained by the Effective Date.


11.3        No Conflict.  MLNM and OBI each represents and warrants to
the other Party that the execution and delivery of this Agreement by such
Party, the performance of such Party’s obligations hereunder and the licenses
to be granted by such Party pursuant to this Agreement (a) do not conflict
with or violate any requirement of Applicable Laws existing as of the Effective
Date as applicable to such Party, and (b) do not conflict with, violate, breach
or constitute a default under any contractual obligations of such Party
existing as of the Effective Date.


11.4        Enforceability.  MLNM and OBI each
represents and warrants to the other Party that, as of the Effective Date, this
Agreement is a legal and valid obligation binding upon it and 


 



 30
 









 


is enforceable against it
in accordance with its terms subject to the laws of bankruptcy, insolvency and
creditors’ rights, and subject to principles of equity.


11.5        Sales Representatives.


11.5.1      OBI covenants to MLNM that its Sales Representatives in the
Co-Promotion Territory shall make no statements, claims or undertakings to any
health care professional with whom they discuss or promote the Product that are
not consistent with, nor provide or use any labeling, literature, or other
materials other than, those Promotional Materials provided and approved for use
pursuant to this Agreement.  If, at any
time, MLNM notifies OBI in writing that it no longer approves the use of
specified Promotional Materials, OBI shall immediately take action to remove
the Promotional Materials from use by Sales Representatives and either destroy
such materials or return them to MLNM at MLNM’s expense.


11.5.2      OBI covenants to MLNM to ensure that (a) all statements and
claims made by its Sales Representatives related to the Product, including as
to efficacy and safety, are consistent with and in strict compliance with the
Product Label and Insert and all Applicable Laws, including the Act, and (b)
all comments about MLNM and the Product are truthful, accurate and in strict
compliance with all Applicable Laws.


11.5.3      OBI covenants to MLNM that it shall cause its Sales
Representatives to comply with all Applicable Laws related to the performance
of its obligations hereunder.  OBI shall
maintain records of the activities of its Sales Representatives and shall allow
representatives of MLNM to inspect such records upon request during normal business
hours and upon reasonable prior notice.


11.5.4      MLNM covenants to OBI that it shall cause its sales
representatives to comply with all Applicable Laws related to the performance
of its obligations hereunder and to comply with the policies in MLNM’s
compliance training materials for the Co-Promotion Territory.  MLNM shall maintain records of the activities
of its sales representatives consistent with prior practices.


11.6        Certain Compliance Matters.  Except as disclosed by the Party to the other
Party prior to the Effective Date pursuant to the Collaboration and License
Agreement, each Party represents and warrants to the other Party with respect
to itself that as of the Effective Date:


11.6.1      Except as disclosed to the other Party prior to the Effective
Date or made publicly available prior to the Effective Date, there is no
material Action pending against, or to the knowledge of the Party, threatened
against or affecting the Party by, before or with any of the FDA, Department of
Health and Human Services, the Drug Enforcement Administration, state Medicaid
agencies, or any other federal or state Governmental Authority with
jurisdiction over the marketing of pharmaceutical products in the Co-Promotion
Territory;


11.6.2      Except as disclosed publicly prior to the Effective Date, the
Party (a) has not been excluded from participation in any Federal Health Care
Program, (b) is not a party to a corporate integrity agreement with the Office
of Inspector General of the Department of Health 


 



 31
 









 


and Human Services, (c) has not been
convicted of any criminal offense relating to the delivery of any item or
service reimbursable under a Federal Health Care Program or relating to the
manufacture, distribution, wholesaling, labeling, packaging or marketing of
prescription drugs in the Co-Promotion Territory, and (d) is not, to the
knowledge of the Party, a party to or subject to any Action concerning any of
the matters described in clauses (a) through (c); and


11.6.3      Within the last [**] years, the Party has not received any
warning letters, untitled letters or similar correspondence from FDA relating
to the Product.


11.7        Debarment; Exclusion.  Neither Party nor any of
its Affiliates involved in the Co-Promotion of the Product has been debarred or
is subject to debarment and neither Party nor any of its Affiliates involved in
the Co-Promotion shall use in any capacity, in connection with the Co-Promotion
of the Product, any Person who has been debarred pursuant to Section 306 of the
Act, or who is the subject of a conviction described in such section.  Each Party agrees to inform the other Party
in writing immediately if it or any Person who is performing services hereunder
on its behalf is debarred or is the subject of a conviction described in
Section 306, or if any action, suit, claim, investigation or legal or
administrative proceeding is pending or, to the best of such Party’s knowledge,
is threatened, relating to the debarment or conviction of such Party or any
Person used in any capacity by such Party or any of its Affiliates in
connection with the Co-Promotion of the Product.


11.7.2      Each Party represents that it has not been nor, to its
knowledge, is it threatened to be excluded from participation in the federal
Medicare or Medicaid programs, Maternal and Child Health Services Block Grant,
Block Grants for States for Social Services, or State Children’s Health
Insurance (collectively, “Federal Health Care
Programs”).  Either Party
agrees to notify the other Party within [**] of receipt of notice of intent to
exclude or actual notice of exclusion from any Federal Health Care Program.


11.8        MLNM Employees.  At all times during the
Co-Promotion Term, MLNM shall maintain a Product sales force, consisting of
MLNM-employed field sales representatives, of a size that is at least [**]
percent ([**]%) of the number of such field sales representatives that MLNM
maintains as of the Effective Date.  In
the event that MLNM reduces or intends to reduce the size of such field sales
force below the minimum number set forth in this Section 11.8, MLNM shall
provide OBI with at least [**] days’ advance written notice to the extent
practicable, but no later than the date of implementation of such reduction.


11.9        Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY, AND
HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT.


 



 32















 


ARTICLE XII

INDEMNIFICATION


12.1        General Indemnification.


12.1.1      MLNM shall indemnify and hold harmless OBI, its Affiliates and
their respective directors, officers, employees and agents (collectively, the “OBI Indemnified Parties”), from, against
and in respect of any and all Actions, liabilities, losses, costs (including
costs of investigation, defense and enforcement of this Agreement), damages,
fines, penalties, Government Orders, taxes, expenses or amounts paid in
settlement (in each case, including reasonable attorneys’ and experts fees and
expenses), involving a claim or Action of a Third Party or Governmental
Authority (collectively, “Losses”),
incurred or suffered by the OBI Indemnified Parties or any of them as a result
of, arising out of or directly or indirectly relating to: (a) any breach of, or
inaccuracy in, any representation or warranty made by MLNM in this Agreement,
or any breach or violation of any covenant or agreement of MLNM (including
under this Article XII) in or pursuant to this Agreement; or (b) the gross
negligence, intentional misconduct or violation of Applicable Law by or of
MLNM, its Affiliates and their respective directors, officers, employees and
agents or any of them in connection with MLNM’s performance under this Agreement,
except, in each case, to the extent caused by the gross negligence, willful
misconduct or violation of Applicable Law of or by OBI or any of the other OBI
Indemnified Parties in connection with OBI’s performance under this Agreement.


12.1.2      OBI shall indemnify and hold harmless MLNM, its Affiliates and
their respective directors, officers, employees and agents (collectively, the “MLNM Indemnified Parties”), from, against
and in respect of any and all Losses incurred or suffered by the MLNM
Indemnified Parties or any of them as a result of, arising out of or directly
or indirectly relating to: (a) any breach of, or inaccuracy in, any
representation or warranty made by OBI in this Agreement, or any breach or
violation of any covenant or agreement of OBI (including under this Article
XII) in or pursuant to this Agreement; or (b) the gross negligence, intentional
misconduct or violation of Applicable Law by or of OBI, its Affiliates and
their respective directors, officers, employees and agents or any of them in
connection with OBI’s performance under this Agreement, except, in each case,
to the extent caused by the gross negligence, willful misconduct or violation
of Applicable Law of or by MLNM or any of the other MLNM Indemnified Parties in
connection with MLNM’s performance under this Agreement.


12.2        Product Liability.  Any indemnification for claims of products
liability arising under this Agreement shall be governed by Section 11.11(c) of
the Collaboration and License Agreement; provided, however, that MLNM shall
have no obligation to indemnify the OBI Indemnified Parties for Losses under
Section 11.11(c)(iii)(a)(y) of the Collaboration and License Agreement to the
extent such Losses were caused by the gross negligence, willful misconduct or
violation of Applicable Law by or of the OBI Indemnified Parties or any of them
in connection with OBI’s performance under this Agreement.


 



 33
 









 


12.3        Notice and
Control of Litigation.


12.3.1      A Person entitled to indemnification under this
Article XII (an “Indemnified Party”) shall give
prompt written notification to the Person from whom indemnification is sought
(the “Indemnifying Party”) of the
commencement of any Action, suit or proceeding relating to a Third Party claim
for which indemnification may be sought or, if earlier, upon the assertion of
any such claim by a Third Party (it being understood and agreed, however, that
the failure by an Indemnified Party to give notice of a Third Party claim as
provided in this Section 12.3.1 shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except and only to the extent
that such Indemnifying Party is actually prejudiced as a result of such failure
to give notice).


12.3.2      Within [**] days after delivery of such notification, the
Indemnifying Party may, upon written notice thereof to the Indemnified Party,
assume control of the defense of such Action, suit, proceeding or claim with
counsel reasonably satisfactory to the Indemnified Party.  If the Indemnifying Party does not assume
control of such defense, the Indemnified Party shall control such defense.


12.3.3      The Party not controlling such defense may participate therein
at its own expense; provided that if the Indemnifying Party assumes control of
such defense and the Indemnified Party reasonably concludes, based on advice
from counsel, that the Indemnifying Party and the Indemnified Party have
conflicting interests with respect to such Action, suit, proceeding or claim,
the Indemnifying Party shall be responsible for the reasonable fees and
expenses of counsel to the Indemnified Party solely in connection therewith;
provided further, however, that in no event shall the Indemnifying Party be
responsible for the fees and expenses of more than one counsel in any one
jurisdiction for all Indemnified Parties.


12.3.4      The Party controlling such defense shall keep the other Party
advised of the status of such Action, suit, proceeding or claim and the defense
thereof and shall consider recommendations made by the other Party with respect
thereto.


12.3.5      The Indemnified Party shall not agree to any settlement of such
Action, suit, proceeding or claim without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld.  The Indemnifying Party shall not agree to any
settlement of such Action, suit, proceeding or claim or consent to any judgment
in respect thereof that does not include a complete and unconditional release
of the Indemnified Party from all liability with respect thereto or that
imposes any liability or obligation on the Indemnified Party without the prior
written consent of the Indemnified Party.


ARTICLE XIII

DISPUTE RESOLUTION


13.1        Escalating; Decision Making Authority.


13.1.1      In
the event the Co-Promotion and Marketing Committee is unable to reach consensus
regarding any issue before it regarding the Minimum Pre-Commencement Activities
(other than the Core Promotional Materials), pursuant to the Co-Promotion Plan
or any performance of the Co-Promotion Plan, including, without limitation, any
issue arising under 



 34
 









Sections 2.2.3, 3.4.2,
3.9, or 5.2.2, but not including any issue arising under Section 3.1.2, Article
V (other than Section 5.2.2), Section 2.4 or the Call Plan, the matter may be
referred to the Steering Committee for resolution at the request of either
Party.  If the Steering Committee is
unable to reach a consensus on the matter within [**] Business Days of
submission to the committee, then MLNM shall have the final decision-making
authority with respect to such matter.


13.1.2      In the event the Steering Committee is unable to reach
consensus regarding any matter referred to it with respect to the regarding the
Minimum Pre-Commencement Activities (other than the Core Promotional
Materials), the Co-Promotion Plan or any performance of the Co-Promotion Plan,
including, without limitation, Sections 2.2.3, 3.4.2, 3.9, or 5.2.2 but not
including any issue arising under Section 3.1.2, Article V (other than Section
5.2.2), Section 2.4 or the Call Plan, MLNM shall have the final decision-making
authority with respect to such matter.


13.1.3      Notwithstanding anything to the contrary contained herein, OBI
shall have final decision-making authority with respect to (a) any matter
relating to promotional messaging regarding the use of the Product in
combination with Doxil®; provided, however, that OBI may not restrict MLNM’s
ability to promote the Product in combination with doxorubicin or any other
product (other than Doxil®), and
(b) the Call Plan.


13.1.4      Neither Party shall be required, as a result of Section 13.1.1
or 13.1.2, to engage in any activity that such Party believes, in its
reasonable judgment, is unlawful.


13.1.5      Neither Party shall have final decision-making authority
pursuant to this Section 13.1.5 with respect to matters over which one or the
other of the Parties is expressly (a) allocated decision-making authority
elsewhere in this Agreement or (b) required to provide its consent elsewhere in
this Agreement.   Neither Party’s final
decision-making authority under this Section 13.1 includes the ability to
determine whether or not a Party has complied or breached with any provision of
this Agreement.


13.2        Arbitration.


13.2.1      Any dispute, claim or controversy arising from or related to
this Agreement or to the interpretation, application, breach, termination or
validity of this Agreement, including any claim of inducement of this Agreement
by fraud or otherwise, shall be submitted for resolution to arbitration
pursuant to the rules then pertaining of the CPR Institute for Dispute
Resolution for Non-Administered Arbitration (available at
www.cpradr.org/arb-rules.htm), or successor (“CPR”),
except where those rules conflict with these provisions, in which case these
provisions control.  Expedited
Arbitration Disputes (as defined below) shall be handled under the provisions
of this Section 13.2 procedure except where a different procedure for such
Expedited Arbitration Disputes as to arbitrator selection and dispensing with
appeals to an appellate arbitrator is specified in Section 13.2.  The arbitration shall be held in New York
City, New York.


13.2.2      Other than with respect to Expedited Arbitration Disputes, the
panel shall consist of three (3) arbitrators chosen from the CPR Panels of
Distinguished Neutrals (or, by 



 35
 









 


agreement, from another provider of arbitrators)
each of whom is a lawyer with at least fifteen (15) years experience with a law
firm or corporate law department of over twenty-five (25) lawyers or who was a
judge of a court of general jurisdiction, and each of whom is experienced in
matters regarding contracts of a similar nature.  However, if (a) the aggregate of all amounts
in dispute is less than [**] Dollars ($[**]), (b) the disputed matter is the
existence or continuation of a Force Majeure Event under Section 14.6, or (c)
the disputed matter relates to the results of an audit conducted under Article
VII (any such dispute, an “Expedited
Arbitration Dispute”), then a single arbitrator shall be chosen,
having the same qualifications and experience specified above; provided that if
resolution of the disputes under subsections (b) above could reasonably be
expected to have an economic impact on either Party in excess of [**] Dollars
($[**]) then the dispute is not an Expedited Arbitration Dispute.  Each arbitrator shall be neutral,
independent, disinterested, impartial, shall abide by The CPR-Georgetown
Commission Proposed Model Rule for the Lawyer as Third Party Neutral available
at www.cpradr.org/cpr-george.html and shall be able to make a commitment to
dedicate sufficient time to the arbitration to enable the arbitration to be
conducted within the time limits set forth in Section 13.2.3.


13.2.3       The Parties agree to (a) discuss within thirty (30) days of
initiation of the arbitration whether they can select the arbitrator(s) by
mutual agreement, after which thirty (30) day period either Party shall be free
to refer the selection of the arbitrator(s) to the CPR as provided in Section
13.2.4 if such Party is not satisfied that the Parties shall be able to select
the arbitrator(s) by mutual agreement in a timely manner, (b) to meet with the
arbitrator(s) within forty-five (45) days of selection and (c) to agree at that
meeting or before upon procedures for discovery and as to the conduct of the
hearing which shall result in the hearing being concluded within no more than
nine (9) months after selection of the arbitrator(s) and in the award being
rendered within thirty (30) days of any post-hearing briefing, which briefing
shall be completed by both sides within thirty (30) days after the conclusion of
the hearings, or within sixty (60) days of the conclusion of the hearings if
there is no post-hearing briefing.


13.2.4      In the event the Parties cannot agree upon selection of the
arbitrators and the disputed matter is an Expedited Arbitration Dispute, the
CPR shall select the arbitrator based on the rankings each party gives the
slate proposed by the CPR and any challenges for cause, which the rankings and
challenges shall be provided by the Parties to the CPR five (5) Business Days
following receipt of the CPR’s slate. 
The CPR shall endeavor to make the selection three (3) Business Days
following receipt of the Parties’ rankings and challenges.  In the event the Parties cannot agree upon
selection of the arbitrators and the disputed matter is not an Expedited
Arbitration Dispute, the Parties shall select arbitrators as follows:  the CPR shall provide the Parties with a list
of no fewer than twenty-five (25) proposed arbitrators, each having the
credentials referenced above.  Within
twenty-five (25) days of receiving such list, the Parties shall rank at least
sixty-five percent (65%) of the proposed arbitrators on the initial CPR list,
after exercising cause challenges.  The
Parties may then interview the five (5) candidates with the highest combined
rankings for no more than one (1) hour each and, following the interviews, may
exercise one (1) peremptory challenge each. 
The panel shall consist of the remaining three (3) candidates with the
highest combined rankings.  In the event
these procedures fail to result in the selection of three (3) arbitrators, the
CPR shall select the three (3) arbitrators from among the members of the CPR
Panel of Distinguished Neutrals, allowing each side challenges for cause and
three (3) peremptory challenges.


 



 36
 









 


13.2.5       In the event the Parties cannot agree upon procedures for
conduct of the hearing meeting the schedule set forth in Section 13.2.3, then
the arbitrator(s) shall set dates for the hearing, any post-hearing briefing,
and the issuance of the award in accordance with the Section 13.2.3
schedule.  In addition, in the event the
Parties cannot agree upon procedures for discovery as set forth in subsection
13.2.3 above, the arbitrator(s) shall provide that discovery be limited so that
the Section 13.2.3 schedule may be met without difficulty and so that neither
side obtains more than a total of forty (40) hours of deposition testimony from
all witnesses, including both fact and expert witnesses, or serves more than
twenty (20) individual requests for documents, including subparts, or twenty
(20) individual requests for admission or interrogatories, including
subparts.  In no event shall the
arbitrator(s), absent agreement of the Parties, allow more than five (5) days
per side for the hearing or more than a total of ten (10) days for the
hearing.  Multiple hearing days shall be
scheduled consecutively to the greatest extent possible.


13.2.6      The arbitrator(s) must render their award by application of the
substantive law of the Commonwealth of Massachusetts and are not free to apply “amiable
compositeur” or “natural justice and equity.” The arbitrator(s) shall render a
written opinion setting forth findings of fact and conclusions of law with the
reasons therefor stated.  A transcript of
the evidence adduced at the hearing shall be made and shall, upon request, be
made available to either Party.  The
arbitrator(s) shall have power to exclude evidence on grounds of hearsay
(subject to all hearsay exceptions set forth in the United States Federal Rules
of Evidence), prejudice beyond its probative value, redundancy, or irrelevance
and no award shall be overturned by reason of such ruling on evidence.  To the extent possible, the arbitration
hearings and award shall be maintained in confidence.  Except as set forth below, the decision of
the arbitrator(s) shall be final and not subject to further review, except
pursuant to the Federal Arbitration Act.


13.2.7      In the event the panel’s award with respect to a disputed
matter other than an Expedited Arbitration Dispute exceeds  [**] Dollars ($[**]) in monetary damages,
then the losing Party may obtain review of the arbitrators’ award or decision
by a single appellate arbitrator (the “Appeal
Arbitrator”) selected from the CPR Panels of Distinguished Neutrals
by agreement or, failing agreement within seven (7) Business Days, pursuant to
the selection procedures specified in Section 13.2.4 above for Expedited
Arbitration Disputes, except that the parties may jointly interview the three
(3) candidates with the highest combined ranking and exercise one peremptory
challenge each, with the time limits extended fifteen (15) days to accomplish
this.  If CPR cannot provide such
services, the Parties shall together select another provider of arbitration
services that can.  No Appeal Arbitrator
shall be selected unless he or she can commit to rendering a decision within
forty-five (45) days following oral argument as specified in this Section
13.2.7.  Any such review must be
initiated within thirty (30) days following the rendering of the award
referenced in Section 13.2.6 above.


13.2.8      In any arbitration appeal pursuant to Section 13.2.7, the
Appeal Arbitrator shall make the same review of the arbitration panel’s ruling
and its bases that the U.S. Court of Appeals of the Circuit where the
arbitration hearings are held would make of findings of fact and conclusions of
law rendered by a district court after a bench trial and then modify, vacate or
affirm the arbitration panel’s award or decision accordingly, or remand to the
panel for further proceedings.  The
Appeal Arbitrator shall consider only the arbitration panel’s findings of fact
and conclusions of law, pertinent portions of the hearing transcript and
evidentiary record as 


 



 37
 









 


submitted by the Parties, opening and reply
briefs of the Party pursuing the review, and the answering brief of the
opposing Party, plus a total of no more than four (4) hours of oral argument
evenly divided between the Parties.  The
Party seeking review must submit its opening brief and any reply brief within
seventy-five (75) and one hundred-thirty (130) days, respectively, following
the date of the award under review, whereas the opposing Party must submit its
responsive brief within one hundred ten (110) days of that date.  Oral argument shall take place within five
(5) months after the date of the award under review, and the Appeal Arbitrator
shall render a decision within forty-five (45) days following oral
argument.  That decision shall be final
and not subject to further review, except pursuant to the Federal Arbitration
Act.


13.2.9      The Parties consent to the non-exclusive jurisdiction of the
Federal District Court for the district in Boston, Massachusetts for the
enforcement of these provisions and the entry of judgment on any award rendered
hereunder (including after review of the Appeal Arbitrator where such an appeal
is pursued).


13.2.10      Each Party has the right
before or, if the arbitrator(s) cannot hear the matter within an acceptable
period, during the arbitration to seek and obtain from the appropriate court
provisional remedies such as attachment, preliminary injunction and replevin,
to avoid irreparable harm, maintain the status quo, or preserve the subject
matter of the arbitration.


13.3        Jury Trial.  EACH PARTY HERETO WAIVES
ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.


13.4        Attorneys’ Fees.  SUBJECT TO ARTICLE 12,  EACH PARTY
HERETO WAIVES ANY CLAIM FOR ATTORNEYS’ FEES AND COSTS AND PREJUDGMENT INTEREST
FROM THE OTHER.


ARTICLE XIV

MISCELLANEOUS


14.1        Compliance with Laws.  Each of the Parties covenants to the other
that it shall comply with all Applicable Laws in connection with the
performance of its obligations under this Agreement.  Unless prohibited by Applicable Laws, each
Party shall promptly share with the other Party any correspondence received by
the first Party from a Governmental Authority that is relevant to this
Agreement.  Unless prohibited by
Applicable Laws, each Party shall promptly provide information in such Party’s
possession or control to the other Party to the extent such information relates
to this Agreement, and shall otherwise cooperate with the other Party, as may
be reasonably requested by the other Party in order for the other Party to
comply with Applicable Laws, including, without limitation, any state law
reporting requirements regarding sales and marketing, clinical trials, and
similar or related activities with respect to pharmaceutical products.


14.2        Choice of Law.  This Agreement shall be governed by and interpreted under, and any court
action in accordance with Section 14.10 shall apply, the laws of the
Commonwealth of 


 



 38
 









 


Massachusetts
excluding: (a) its conflicts of laws principles; (b) the United Nations
Conventions on Contracts for the International Sale of Goods; (c) the 1974
Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (d) the Protocol amending the 1974
Convention, done at Vienna April 11, 1980.


14.3        Equitable Remedies.


14.3.1      Each Party hereby acknowledges and agrees
that in the event a remedy at law would not be adequate, or money damages could
not adequately be ascertained with respect to,a breach of Section 3.1.1,
Section 3.1.2 , Article IX, Section 10.1 or Section 11.5, then for such a
breach, the Party hereto shall be entitled, in addition to any other right or
remedy available to it, to equitable relief in any court of competent
jurisdiction, including, without limitation, an injunction restraining such
breach or a threatened breach, and to specific performance of any such
provision of this Agreement, and in either case no showing of any actual or
potential damage, or no bond or other security shall be required in connection
therewith, and the parties hereto hereby consent to the issuance of such
injunction and to the ordering of such specific performance.


14.3.2      If, at the time of enforcement of any covenants set forth in
Article IX, a court holds that the restrictions stated in such covenants are
unreasonable under circumstances then existing, the Parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period and scope and that the
court shall be allowed to revise the restrictions contained herein to cover the
maximum duration, scope and area permitted by Applicable Law.


14.4        Notices. 
Any notice or report required or permitted to be given
or made under this Agreement by one of the Parties to the other shall be in
writing and shall be deemed to have been delivered upon personal delivery or
(a) in the case of notices provided between Parties in the continental
United States, four days after deposit in the mail or the Business Day next
following deposit with a reputable overnight courier and (b) in the case
of notices provided by telecopy (which notice shall be followed immediately by
an additional notice pursuant to clause (a) above if the notice is of a default
hereunder), upon completion of transmissions to the addressee’s telecopier, as
follows (or at such other addresses or facsimile numbers as may have been
furnished in writing by one of the Parties to the other as provided in this
Section 14.4):  


	
  If to MLNM:

  	
   

  	
  Millennium Pharmaceuticals, Inc.

  40 Landsdowne Street

  Cambridge, Massachusetts 02139-4815

  U.S.A.

  Attention: Chief Executive Officer

  Facsimile No.: (617) 621-0264



  
	
  With a copy to:

  	
   

  	
  Millennium Pharmaceuticals, Inc.

  40 Landsdowne Street

  Cambridge, Massachusetts 02139-4815

  U.S.A.

  Attention: General Counsel

  Facsimile No.: (617) 374-0074



  



 



 39
 









 


	
  If to OBI:

  	
   

  	
  Ortho Biotech Inc.

  430 Route 22

  East Bridgewater, New Jersey
  08807-0914
 U.S.A.

  Attention: President

  Facsimile No.: (908) 526-4282



  
	
  With a copy to:

  	
   

  	
  Johnson & Johnson

  Office of the General Counsel
 One Johnson & Johnson Plaza
 New Brunswick, New Jersey 08933
 U.S.A.

  Attention: General Counsel 

  Facsimile No.: 732-524-2788



  



 


14.5        Severability.  If, under Applicable Law or regulation, any provision of this Agreement
is invalid or unenforceable, or otherwise directly or indirectly affects the
validity of any other material provision(s) of this Agreement (such invalid or
unenforceable provision, a “Severed Clause”),
this Agreement shall endure except for the Severed Clause.  The Parties shall consult one another and use
reasonable efforts to agree upon a valid and enforceable provision that is a
reasonable substitute for the Severed Clause in view of the intent of this
Agreement.


14.6        Force Majeure Event. Neither
Party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by a Force Majeure Event; provided that:
(a) the non-performing Party is without fault in causing such default or delay,
(b) such default or delay could not have been prevented by reasonable
precautions; and (c) such default or delay could not reasonably be circumvented
by the non-performing Party through the use of alternate sources, workaround
plans, or other means.  In the case of
any Force Majeure Event, the non-performing Party shall be excused from further
performance or observance of the obligations so affected for as long as such
circumstances prevail and such Party continues to use commercially reasonable
efforts to recommence performance or observance without delay.  Any Party so delayed in its performance shall
immediately notify the Party to whom performance is due by telephone (to be
confirmed in writing within twenty-four (24) hours of the inception of such
delay) and describe at a reasonable level of detail the circumstances causing
such delay. If any Force Majeure Event substantially prevents, hinders, or
delays performance by a Party and the performance is not materially restored
within thirty (30) days, the other Party may terminate this Agreement upon
notice to such Party.


14.7        Captions.  All captions herein are for
convenience only and shall not be interpreted as having any substantive
meaning.


 



 40
 









 


14.8        Integration.  This Agreement constitutes the entire
agreement between the Parties hereto with respect to the subject matter of this
Agreement and supersedes all previous agreements, whether written or oral.  Notwithstanding the authority granted to the
Co-Promotion and Marketing Committee and the Steering Committee under this
Agreement, this Agreement may be amended only in writing signed by properly authorized
representatives of each of MLNM and OBI. 
In the event of a conflict between the Co-Promotion Plan on the one
hand, and this Agreement, on the other hand, the terms of this Agreement shall
govern.


14.9        Independent Contractors; No Agency.  Neither Party shall have any responsibility
for the hiring, firing or compensation of the other Party’s employees or for
any employee benefits.  No employee or
representative of a Party shall have any authority to bind or obligate the
other Party to this Agreement for any sum or in any manner whatsoever, or to
create or impose any contractual or other liability on the other Party without
said Party’s written approval.  For all
purposes, and notwithstanding any other provision of this Agreement to the
contrary, each Party’s legal relationship under this Agreement with the other
shall be that of independent contractor.


14.10      Submission to Jurisdiction.  Each Party (a) submits to the exclusive
jurisdiction of the state and federal courts sitting in Boston, Massachusetts,
with respect to actions or proceedings arising out of or relating to this
Agreement in which a Party brings an action in aid of arbitration, (b) agrees
that all claims in respect of such action or proceeding may be heard and
determined only in any such court, and (c) agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court,
other than an action or proceeding seeking injunctive relief or brought to
enforce an arbitration ruling issued pursuant to Section 13.2.  Each Party waives any defense of inconvenient
forum to the maintenance of any action or proceeding so brought and waives any
bond, surety or other security that might be required of the other Party with
respect thereto.  Each Party may make
service on the other Party by sending or delivering a copy of the process to
the Party to be served at the address and in the manner provided for the giving
of notices in Section 14.4.  Nothing in
this Section 14.10, however, shall affect the right of any Party to serve legal
process in any other manner permitted by Applicable Law.


14.11      Assignment; Successors.  Neither MLNM nor OBI may assign this
Agreement in whole or in part, nor any rights hereunder, without the prior
written consent of the other Party; provided that (a) this Agreement may be
assigned by a Party to a Third Party in connection with a sale or transfer of
all or substantially all of such Party’s business or assets to which this
Agreement relates or (b) this Agreement may be assigned by MLNM to a Third
Party that acquires MLNM in connection with a Change of Control of MLNM
provided that MLNM provides written notice of the Change of Control of
OBI.   Any assignment made other than in
accordance with the immediately preceding sentence shall be wholly void and
invalid, and the assignee in any such assignment shall acquire no rights
whatsoever, and the non-assigning Party shall not recognize, nor shall it be
required to recognize, such assignment. 
This Section 14.11 limits both the right and the power to assign this
Agreement and/or rights under this Agreement. 
This Agreement shall be binding upon, and shall inure to the benefit of,
all permitted successors and assigns.


 



 41
 









 


14.12      Publicity.  Upon the execution of this Agreement, MLNM
shall issue a mutually agreed press release regarding the subject matter of
this Agreement.  After such initial press
release, neither Party shall issue a press release or public announcement
relating to the Product or this Agreement without the prior written approval of
the other Party, which approval shall not be unreasonably withheld, except that
a Party may (a) issue such press release or public announcement if the contents
of such press release or public announcement have previously been made public
other than through a breach of this Agreement by the issuing Party and such
press release or public announcement does not contain the other Party’s name,
and (b) issue such a press release or public announcement if required by
Applicable Law, including without limitation by the rules or regulations of the
United States Securities and Exchange Commission or similar regulatory agency
in a country other than the United States or of any stock exchange or NASDAQ
(with as much advance notice as possible under the circumstances if it is not
possible to provide notice at least three Business Days in advance) for the
sole purpose of allowing the other Party to review the proposed press release
or public announcement for the inclusion of Confidential Information or the use
of its name, provided  that, the Party subject to the requirement
shall include in such press release or public announcement made pursuant to the
foregoing clause (b) only such information relating to the Product or this
Agreement as is required by such Applicable Law.


14.13      No Consequential or
Punitive Damages.  NEITHER PARTY HERETO SHALL BE LIABLE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR MULTIPLE
DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER,
OR FOR ANY LOSS OR INJURY TO A PARTY’S PROFITS OR GOODWILL ARISING FROM OR
RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH
DAMAGES.  NOTHING IN THIS SECTION 14.13
IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF
EITHER PARTY WITH RESPECT TO THIRD PARTY CLAIMS.


14.14      Performance by
Affiliates.  To the extent that this Agreement imposes
obligations on Affiliates of a Party, such Party agrees to cause its Affiliates
to perform such obligations.  Either
Party may use one or more of its Affiliates to perform its obligations and
duties hereunder, provided that the Parties shall remain liable hereunder for
the prompt payment and performance of all their respective obligations
hereunder.


14.5        Amendments; Waivers.  This
Agreement may not be amended, supplemented or modified except pursuant to the
written agreement of both
Parties.  Unless set forth in writing by
the Party, no failure, delay or course of dealing on the part of such Party in
exercising any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement by a Party preclude the exercise of any other
right, power or privilege of such Party. 
Any term or condition of this Agreement may be waived at any time by the
Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on
behalf of the Party waiving such term or condition.  No waiver by any Party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a waiver of the same or any other term or condition of
this Agreement on any 


 



 42
 









 


future
occasion.  No notice to, or demand on, a
Party in any case shall entitle such Party to any other or further notice or
demand in similar or other circumstances.


14.16      Third Party
Beneficiaries.  The provisions of this Agreement are not
intended legally to benefit or be enforceable by any Person who is not a Party
to this Agreement (such as any contract holder, service provider, creditor,
person who otherwise has any claim against any Party to this Agreement), and no
such Party shall obtain any right under any such provisions or shall by reason
of such provisions make any claim against a Party to this Agreement.


14.17      Further Assurances;
Cooperation.  Each of the Parties shall reasonably
cooperate at its own expense with the other Party upon reasonable request to
effect the transactions contemplated by this Agreement.


14.18      Survival.  Except as
otherwise agreed to by the Parties in writing, the following provisions shall
survive any termination of this Agreement: Sections 3.1.2 (Doxil® License) (to the extent set forth therein),
3.2.5 (failure to satisfy Minimum Commitments), 3.5 (Product Sales), 3.7
(Product Return), 3.8 (Product Medical Inquiries), 6.3.1 (notification of
government action), 7.4 (payment audit), 8.3 (effects of termination), 8.4
(right of first negotiation), 9.2 (confidentiality), 9.3 (non-solicitation),
10.2 (ownership of intellectual property), 14.2 (choice of law), 14.3
(Equitable Remedies), 14.4 (notices), 14.5 (severability), 14.7 (captions),
14.8 (integration), 14.9 (independent contractor status), 14.10 (submission to
jurisdiction), 14.11 (Assignment; Successors), 14.12 (publicity),  14.13 (no consequential or punitive damages),
14.14 (Performance by Affiliates), 14.15 (Amendment; Waivers), 14.16 (third
party beneficiaries), 14.17 (Further Assurances; Cooperation),  14.18 (survival) and 14.19 (cumulative
remedies) and Article V (compensation) (subject to the provisions of Section
8.3.2 (payments upon termination)), Article XII (indemnification) and Article
XIII (dispute resolution) and the applicable definitions in Appendix A.


14.19      Cumulative Remedies.  Subject
to the provisions of Section 3.2.5, Section 8.3.2(d) and Section 13.2, the
rights and remedies of the Parties under this Agreement are cumulative and not
exclusive and accordingly, are in addition to, and not in lieu of any other
rights and remedies of the Parties at law or in equity.


 



 43















 


14.20      Execution in
Counterparts; Facsimile Signatures.  This Agreement may be executed in counterparts,
each of which counterpart, when so executed and delivered, shall be deemed to
be an original, and all of which counterparts, taken together, shall constitute
one and the same instrument even if both Parties have not executed the same
counterpart.  Signatures provided by
facsimile transmission shall be deemed to be original signatures.


(The
remainder of this page is intentionally left blank.)



 44
 









 


IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first written above.


 




	
  

  	
  MILLENNIUM PHARMACEUTICALS,
  INC. 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Anna Protopapas

  
	
   

  	
  Name:

  	
  Anna Protopapas

  
	
   

  	
  Title:

  	
  SVP, Corporate Development

  
	
   

  	
   

  	
   

  
	
   

  	
  ORTHO BIOTECH INC. 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Joaquin Duato                              10/25/06

  
	
   

  	
  Name:

  	
  Joaquin Duato

  
	
   

  	
  Title:

  	
  President

  






 



 45
 









 


Guaranty


Ortho
Biotech hereby agrees to unconditionally and irrevocably guarantee the
obligations and liabilities of OBI under this Agreement, including without
limitation OBI’s obligations under Section 14.14 to cause its Affiliates to
perform obligations imposed on such Affiliates. 
Ortho Biotech hereby acknowledges and agrees that (a) OBI and MLNM may
amend or modify this Agreement without the requirement of providing notice of
such amendment or modification to Ortho Biotech or of obtaining Ortho Biotech’s
consent thereto and (b) MLNM shall be entitled to interact and deal with OBI on
all matters relating to this Agreement (and any modification and amendments)
without regard to the guaranty made by Ortho Biotech hereunder, and that in
each such case, the obligations and liabilities of Ortho Biotech under this
guaranty shall not be released or otherwise impaired as a result thereof.


ORTHO BIOTECH PRODUCTS, L.P.


	
     /s/ Joaquin Duato

  	
   

  
	
  By:          Ortho Biotech Inc.

  	
   

  
	
  Its:          General Partner

  	
   

  



 



 46
 









 


Appendix A


Definitions


“Act” means the
Federal Food, Drug and Cosmetic Act, as amended from time to time, and the
rules, regulations, guidelines and requirements of the FDA (as hereinafter
defined) as may be in effect from time to time.


“Action” means any claim,
action, cause of action or suit (whether in contract or tort or otherwise),
litigation (whether at law or in equity, whether civil or criminal), controversy,
assessment, arbitration, investigation, hearing, charge, complaint, demand,
notice or proceeding of, to, from, by or before any Governmental Authority.


“Adverse Event” means the
development of an undesirable medical condition or the deterioration of a
pre-existing medical condition following or during exposure to the Product,
whether or not considered causally related to the Product, the exacerbation of
any pre-existing condition occurring during the use of the Product, or any
other adverse experience or adverse drug experience described in the FDA’s
Investigational New Drug safety reporting and NDA (as hereinafter defined)
postmarketing reporting regulations, 21 C.F.R. 312.32 and 314.80, respectively,
as they may be amended from time to time. 
For purposes of this Agreement, “undesirable medical condition” shall
include symptoms (e.g. nausea, chest pain), signs (e.g. tachycardia, enlarged
liver) or the abnormal results of an investigation (e.g. laboratory findings,
electrocardiogram), including unfavorable side effects, toxicity, injury,
overdose, sensitivity reactions or failure of the Product to exhibit its
expected pharmacological/biologic effect.


“Agreement” has the meaning
assigned in the Preamble to this Agreement.


“Affiliate” means,
with respect to any Party, any Person controlling, controlled by or under
common control with such Party.  For
purposes of this definition, “control” shall mean (a) in the case of a Person
that is a corporate entity, direct or indirect ownership of fifty percent (50%)
or more of the stock or shares having the right to vote for the election of
directors of such Person and (b) in the case of a Person that is an entity, but
is not a corporate entity, the possession, directly or indirectly, of the power
to direct, or cause the direction of, the management or policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.


“Annualized Net Sales” means, with respect to a given calendar year, MLNM’s
calculation of the estimated annual Net Sales
based on actual daily average of year-to-date Net Sales.  By way of example, for the 2007 calendar
year, if the actual Net Sales through August 17, 2007 were $[**] then the
actual daily average of year-to-date Net Sales is $[**] (i.e. $[**] ÷229 days (i.e.
the number of days from January 1, 2007 through August 17, 2007)) and “Annualized
Net Sales” equals $[**] (i.e.$[**] x 365 days per year).


“Appeal Arbitrator” has the
meaning assigned in Section 13.2.7 of this Agreement.


“Applicable Laws” means all federal,
state and local laws, and the rules, regulations, guidance, guidelines and
requirements of Governmental Authorities in effect that are applicable from
time to time, including, without limitation, those relating to the manufacture,
marketing, 


 



 47
 









 


promotion, distribution,
(including storage, handling and transportation) and sale of the Product in the
Co-Promotion Territory, including the Act, the Prescription Drug Marketing Act,
the FDA Guidance for Industry — Supported Scientific and Educational Activities
and “fraud and abuse,” anti-kickback, consumer protection and false claims
statutes and regulations.


“At Risk” has the meaning
assigned in Section 8.2 of this Agreement.


“Average Commission Rate”
means the rate equal to one-half of the sum of (a) the effective commission
rate for calculation of the Commission Payment for 2007 and (b) the effective
commission rate for calculation of the Commission Payment for 2008.  For purposes of this definition, “effective
commission rate” for a particular year shall be calculated by dividing  the actual Commission Payment earned by OBI
for such year by actual Net Sales above the baseline Net Sales amount
for such year (which baseline Net Sales amount is $[**] for 2007 and $[**] for
2008).


“Books and Records” has the
meaning assigned in Section 7.1 of this Agreement.


“Business Day” means any day
other than a Saturday or a Sunday or other day on which commercial banks are
authorized or required to be closed in the State of Delaware.


“Call” means an in-person
presentation of the Product made by a Sales Representative to a MLNM Target
during which the Sales Representative describes the Product in a fair and
balanced manner consistent with the requirements of this Agreement and
Applicable Law and in a manner that is customary in the industry for the
purpose of promoting a prescription pharmaceutical product.  “Calls” shall be deemed to include only full
sales presentations and shall not be deemed to include “reminder” details or
e-details, in each case as such terms are generally understood in the
pharmaceutical industry, or any presentations made at conventions, consulting
programs or similar gatherings.


“Call Cost Payment” has the
meaning assigned in Section 5.1.2 of this Agreement.


“Call Costs” has the meaning
assigned in Section 5.1.1 of this Agreement.


“Call Plan” has the meaning
assigned in Section 2.2.2 of this Agreement.


“Call Reporting and Review Requirements” has
the meaning assigned in Section 2.2.3 of this Agreement.


“Call Standard” has the meaning
assigned in Section 3.2.1.


“Change of Control” means a
transaction (or series of transactions) that results in a merger, consolidation
or reorganization of MLNM (each of which is referred to as a “Merger”) in which
MLNM is not the surviving corporation and pursuant to which (i) the individuals
and entities who were the beneficial owners of the then outstanding voting
shares of MLNM immediately prior to such transaction would beneficially own,
directly or indirectly, no more than [**]% of the then outstanding voting shares
entitled to vote generally in the election of directors of the corporation or
other entity resulting from such transaction in substantially the same
proportions as their ownership, immediately prior to such transaction, of the
voting shares 


 



 48
 









 


outstanding immediately
prior to such transaction, and (ii) no more than [**]% of the members of the
board of directors that would result from such transaction were members of the
board of directors of MLNM at the time of the execution of the initial
agreement or the action of the board of directors of MLNM providing for such
transaction.


“Collaboration and License Agreement”
has the meaning assigned in the first recital to this Agreement.


“Combination sNDA Filing” has
the meaning assigned in Section 3.1.2 of this Agreement.


“Commission Payments” has the
meaning assigned in Section 5.3 of this Agreement.


“Competitor” means a Person (or
any Person controlling, controlled by or under common control with such a
Person) that owns or markets, or that is reasonably expected to own or market
during the Co-Promotion Term, a pharmaceutical product that is in the same
therapeutic class as  Doxil® (e.g., doxorubicin),  Procrit® (e.g,
hematopoietic growth factors) or any other OBI product marketed in the
Co-Promotion Territory and/or expected to launch during the Co-Promotion
Term.  For purposes of this definition, “control”
means (i) in the case of a Person that is a corporate entity, direct or
indirect ownership of fifty percent (50%) or more of the stock or shares having
the right to vote for the election of directors of such Person and (ii) in the
case of a Person that is an entity, but is not a corporate entity, the
possession, directly or indirectly, of the power to direct, or cause the
direction of, the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.


“Confidential Information”
has the meaning assigned in 9.2.1 of this Agreement.


“Co-Promotion” means the promotion of the Product in the
Co-Promotion Territory by OBI pursuant to this Agreement and the Co-Promotion
Plan through activities normally undertaken by a pharmaceutical company’s
sales force to implement marketing plans and strategies aimed at encouraging
the FDA approved use of a prescription pharmaceutical product (including without limitation conducting
Calls).  “Co-Promote” and “Co-“Promoting”
when used as a verb means to engage in such Co-Promotion.


 “Co-Promotion
and Marketing Committee” has the meaning assigned in Section
4.2.1 of this Agreement.


“Co-Promotion Manager”
has the meaning assigned in Section 5.2.3 of this Agreement.


“Co-Promotion Plan” has the
meaning assigned in Section 2.2 of this Agreement.


“Co-Promotion Representatives” means
collectively, all Sales Representatives, District Managers, Regional Business
Directors, OBI Trainers and the Co-Promotion Manager and any and all other
employees of OBI engaged in the Co-Promotion of the Product hereunder or in the
training and management of employees with respect to their Co-Promotion of the Product
hereunder.


“Co-Promotion Term” has the
meaning assigned in Section 1.3.1 of this Agreement.


 



 49
 









 


“Co-Promotion
Territory” means the United States of America not including its
territories and possessions.


“Core Promotional Materials” has
the meaning assigned in Section 2.4.1 of this Agreement.


“CPI” means the Consumer Price
Index — Urban Wage Earners and Clerical Workers, U.S. City Average, All Items,
1982-84 = 100, published by the United States Department of Labor, Bureau of
Statistics (or its successor equivalent index) in the United States.


“CPR” has the meaning assigned
in Section 13.2.1 of this Agreement.


“Doxil® License” has the meaning assigned
in Section 3.1.2 of this Agreement.


“Effective Date” has the meaning
set forth in the preamble to this Agreement.


“Expedited Arbitration Dispute”
has the meaning assigned in Section 13.2.2 of this Agreement.


“Extension Term” has the meaning
assigned in Section 1.3.2 of this Agreement.


 “FDA”
means the United States Department of Health and Human Services, Food and Drug
Administration.


“Federal
Health Care Programs”
has the meaning assigned in Section 11.7.2 of this Agreement.


“Field Alert” has the meaning
set forth in Section 6.2 of this Agreement.


“First Position Call” means  a Call in which at least [**] of the presentation is
dedicated solely to the Product in accordance with the Co-Promotion Plan and in
which the Product is the first product presented to the First Position Target.


“First Position Target” means
one of no more than [**] physicians and other health care professionals in the
Co-Promotion Territory with prescribing authority for oncology products who is
designated as such on the Target List who shall receive a First Position Call.


“Force Majeure Event” means any
extraordinary or unexpected event such as fire, floods, embargoes, shortages,
epidemics, quarantines, war, acts of war (whether war be declared or not), acts
of terrorism, insurrections, riots, strikes, or acts of God; material change in
applicable regulatory rules or processes, that is caused by or results from
causes beyond the reasonable control of the Party seeking to take advantage of
the Force Majeure and which were not avoidable by the exercise of reasonable
foresight.


 “GAAP” means generally accepted accounting principles as in
effect in the United States.


 



 50
 









 


“Governmental Authority” means
any United States federal, state or local or any foreign government, or
political subdivision thereof, or any multinational organization or authority
or any authority, agency or commission entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or
power, any court or tribunal (or any department, bureau or division thereof),
or any governmental arbitrator or arbitral body.


“Incentive Payments” has the
meaning assigned in Section 5.2.1 of this Agreement.


“In Kind Payments” has the
meaning assigned in Section 5.2.2 of this Agreement.


“Indemnified Party” has the
meaning set forth in Section 12.3.1 of this Agreement.


“Indemnifying Party” has the meaning
set forth in Section 12.3.1 of this Agreement.


“Intellectual Property” means
all (a) patents, patent applications, patent disclosures and inventions; (b)
Trademarks, service marks, trade dress, trade names, logos and corporate names
and registrations and applications for registration thereof together with all
of the goodwill associated therewith; (c) copyrights (registered or
unregistered) and copyrightable works and registrations and applications for
registration thereof; (d) mask works and registrations and applications for
registration thereof; (e) computer software (excluding off-the-shelf
software that has not been customized or altered), (f)
electronic and non-electronic data, data bases and documentation thereof; (g)
trade secrets and other confidential information (including, without
limitation, ideas, formulas, compositions, inventions (whether patentable or
unpatentable and whether or not reduced to practice), know-how, manufacturing
and production processes and techniques, research and development information,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial and marketing plans and customer and supplier
lists and information); (h) other intellectual property rights; and (i) copies
and tangible embodiments thereof (in whatever form or medium).


“Losses” has the meaning
assigned in Section 12.1.1 of this Agreement.


“Measurement Period” means the
each of the following periods:


(a)           April
1, 2007 through June 30, 2007;


(b)           July
1, 2007 through September 30, 2007;


(c)           October
1, 2007 through December 31, 2007;


(d)           January
1, 2008 through March 30, 2008;


(e)           April
1, 2008 through June 30, 2008;


(f)            July
1, 2008 through September 30, 2008; and


(g)           October
1, 2008 through December 31, 2008.


 



 51
 









 


“Minimum
Commitment” has the meaning assigned in Section 3.2.2 of this
Agreement.


“Minimum Frequency” has the
meaning set forth in Section 3.2.2 of this Agreement.


“Minimum Pre-Commencement Activities” means:


(a)           The Target List and the Call Plan
shall have been developed and agreed upon by the Parties as contemplated in
Sections 2.2.1 and 2.2.2, respectively;


(b)           The Core Promotional Materials shall
have been developed and agreed upon by the Parties as set forth in Section 2.4;


(c)           OBI shall have the ability to generate
the Monthly Call Report and the Quarterly Call Report and provide the same to
MLNM on a timely basis as contemplated by 2.2.3.(a);


(d)           MLNM shall have substantially
completed its training of the OBI Trainers to MLNM’s reasonable satisfaction;
and


(e)           The
Sales Representatives shall have substantially completed their “home study”
requirements and shall have had training with respect to obligations to handle
Adverse Event reporting and Product Medical Inquiries to the reasonable
satisfaction of MLNM.


“MLNM” has the meaning assigned
in the preamble to this Agreement.


“MLNM Indemnified Parties” has
the meaning assigned in Section 12.1.2 of this Agreement.


“MLNM Target” means any First
Position Target or Second Position Target.


“MLNM Trademark” shall mean any
Trademark that includes the name “Millennium” or one or more of the logos
identified in Appendix B, or any other Trademark under which MLNM and/or its
Affiliates market and sell products in the Co-Promotion Territory.


“Monthly Call Report” has the
meaning set forth in Section 2.2.3(a)(i) of this Agreement.


“NDA” means New Drug
Application.


“Net Sales” means, with respect
to the Product, the gross
invoiced sales of the Product by
MLNM, its Affiliates and its sublicensees in the Co-Promotion Territory and Puerto
Rico to non-sublicensee Third Parties, less good faith estimates of the
following deductions to the extent specifically relating to sales of the Product, which shall be adjusted
to actual on a periodic basis (no less frequently than annually), of:


 



 52
 









 


(a)           discounts,
credits, retroactive price reductions, rebates, refunds, chargebacks,
allowances and adjustments granted to non-sublicensee Third Parties, including
Medicaid, managed care and similar types of rebates, and provisions for bad
debts determined in accordance with GAAP consistently applied by MLNM,
rejections, market withdrawals, recalls and returns;


(b)           trade,
quantity and cash discounts and rebates allowed or given, and customary fees
paid to distributors (other than to a distributor that is an Affiliate of
MLNM);


(c)           sales,
excise, turnover, inventory, value-added, and similar taxes assessed on the
sale of the
Product (other than income taxes of MLNM, its Affiliates or
sublicensees), and import and customs duties;


(d)           transportation,
importation, shipping insurance, postage, customs clearance, freight and other
handling expenses;


(e)           government
imposed rebates or discounts;


(f)            the
portion of any management fees paid during the relevant time period to group
purchasing organizations; and,


(g)           any
inventory management fees.


Sales of Product by and between MLNM and its
Affiliates and sublicensees are not sales to Third Parties and shall be
excluded from Net Sales calculations for all purposes.


“Non-Cancellable”
means a cost that (1) is obligated to a Third Party as of the effective date of
termination of this Agreement, (2) is covered under Section 5.2 of this
Agreement, and (3) for which OBI uses commercially reasonable efforts to, at
the time of termination, cancel such obligation.


“Non-Performing Period”
has the meaning assigned in Section 3.2.3 of this Agreement.


“OBI” has the meaning assigned
in the preamble to this Agreement.


“OBI Indemnified Parties” has
the meaning assigned in Section 12.1.1.


“OBI Non-Performance Breach” has
the meaning assigned in Section 3.2.4 of this Agreement.


“OBI Trainers” has the meaning
assigned in Section 2.3 of this Agreement.


“OBI Sales Force” has the
meaning assigned in Section 3.3.2 of this Agreement.


“Ortho Biotech” has the meaning
assigned in the first recital of this Agreement.


“Party” and “Parties” has
the meaning assigned in the preamble to this Agreement.


 



 53
 









 


“Person” means, as applicable,
an individual sole proprietorship, partnership, limited partnership, limited
liability partnership, corporation, limited liability company, business trust,
joint stock company, trust, incorporated association, joint venture or similar
entity or organization, including a government or political subdivision,
department or agency of a government.


“Pre-Commencement Period” has
the meaning assigned in Section 1.3.1 of this Agreement.


“Product” has the
meaning assigned in the first recital to this Agreement.


“Product Copyrights” shall mean
all copyrightable subject matter included in the Product Labels and Inserts,
the Promotional Materials, and the Product training programs and materials
developed and produced in accordance with this Agreement.


“Product Label and Insert” means
(a) all labels and other written, printed or graphic matter affixed to any
container, packaging or wrapper utilized with the Product, or (b) any written
material physically accompanying the Product, including Product package
inserts.


“Product Medical Inquiries” has
the meaning set forth in Section 3.8.1 of this Agreement.


 “Product
Trademark” shall mean any Trademark (as hereinafter defined)
that includes the name “VELCADE”, or any other Trademark under which MLNM sells
the Product  in the Co-Promotion
Territory.


“Promotional Materials” has the
meaning assigned in Section 3.4.1 of this Agreement.


“Pro Rata Commission”
shall mean with respect to either 2007 or 2008, as applicable, the amount of
Commission Payment earned up to the effective date of termination for the
calendar year in which this Agreement is terminated pursuant to Section 8.1 of
this Agreement, as determined by (i) multiplying the amount of the Commission
Payment that would be payable in the applicable calendar year based on
Annualized Net Sales of that year by the number of days elapsed prior to the
effective date of termination in such calendar year and (ii) dividing this
amount by 365.  By way of example, if the
Annualized Net Sales in 2007 were $[**] and the effective termination date was
August 17, 2007, then the amount of Commission Payments earned for 2007 payable
on Annualized Net Sales in 2007 would equal $[**].  The Pro Rata Commission would equal ($[**] x
229) ÷ 365 = $[**].


“Quarterly Call Report” has the
meaning assigned in Section 2.2.3(a)(ii) of this Agreement.


“Reach” means, with respect to
First Position Targets, the percentage of First Position Targets with whom
Sales Representatives conduct First Position Calls at least once during a given
Measurement Period, and means, with respect to Second Position Targets, the
percentage of Second Position Targets with whom Sales Representatives conduct
First or Second Position Calls at least once during a given Measurement Period.


 



 54
 









 


“Sales Representative” means an
individual who is regularly employed by OBI  on a full-time
basis as a member of its oncology field sales force, whose skills, training and
experience are consistent with industry standards applicable to the
Co-Promotion of an oncology pharmaceutical product, and who, following the
commencement of the Co-Promotion Term, shall have (a) satisfactorily completed
the sales training described in this Agreement and the Co-Promotion Plan and
(b) have become adequately equipped and knowledgeable with respect to the
Product, including the Product Label and Insert and the use of the Core
Promotional Materials and any Promotion Materials provided to OBI to make Calls
regarding the Product to MLNM Targets all in a timely manner in accordance with
this Agreement and the Co-Promotion Plan.


“Second Position Call” means (a)  a Call in which at least [**] of the presentation is
dedicated solely to the Product in accordance with the Co-Promotion Plan and in
which the Product is at least the second product presented to the Second
Position Target; or (b) a Call in which at least [**] percent ([**]%) of the
presentation is dedicated solely to the Product in accordance with the
Co-Promotion Plan and in which the Product is the first product presented to
the Second Position Target.


“Second Position Target” means
one of no more than [**]  physicians and
other health care professionals in the Co-Promotion Territory with prescribing
authority for oncology products in the Co-Promotion Territory who is designated
as such on the Target List who shall receive a Second Position Call.


“Severed Clause” has the meaning
assigned in Section 14.5 of this Agreement.


“Steering Committee” has the
meaning assigned in Section 4.1.1 of this Agreement.


“Tail Payment” has the meaning
assigned in Section 5.4.1 of this Agreement.


“Target List” has the meaning
set forth in Section 2.2.1. of this Agreement.


“Tax” or “Taxes” means any present or future taxes, levies, imposts,
duties, charges, assessments or fees of any nature (including interest,
penalties and additions thereto) that are imposed upon a Party under any
Applicable Laws.


 “Third Party” means any Person other than a Party or any of
its Affiliates.


“Trademark” means any trademark,
trade dress, brand mark, trade name, brand name, corporate name, logo or
business symbol.


“Training Plan” has the meaning
assigned in Section 2.3 of this Agreement.


“Unexpected Market Event” has
the meaning assigned in Section 8.1.2(h) of this Agreement.


“Variable Cost Payments” has the
meaning assigned in Section 5.2 of this Agreement.


 



 55















 


Appendix B



Co-Promotion Plan


 



   
 









 


MILLENNIUM PHARMACEUTICALS, INC.


and


ORTHO BIOTECH INC.


CO-PROMOTION PLAN


APPENDIX B


Pursuant to the terms of
Section 2.2 of the Co-Promotion Agreement by, and between, Millennium
Pharmaceuticals, Inc. (MLNM) and Ortho Biotech, Inc. (OBI) dated October 25,
2006 (the “Agreement”), this Co-Promotion Plan is approved by the Co-Promotion
and Marketing Committee  (“CPMC”) on
January 12, 2007, attached hereto and incorporated into the Agreement as
Appendix B.  This Co-Promotion Plan shall
be in effect upon approval by the CPMC. 
To the extent anything in the Call Plan is inconsistent with the
Co-Promotion Agreement it amends, the terms of the Co-Promotion Agreement shall
govern.


Capitalized terms used
but not defined herein shall have the same meaning given to them in the
Agreement.


The CPMC hereby
approves the attached Co-Promotion Plan.


Agreed to by the
CPMC representatives of each Party:


 


 


 


	
  Millennium Pharmaceuticals, Inc

  	
   

  	
  Ortho Biotech Products, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Grant Bogle

  	
   

  	
  Lou Ferrari

  
	
  SVP, Oncology Sales & Marketing

  	
   

  	
  VP, Sales

  



-


 


 


December 2006 Approved Co-Promotion Plan


CONFIDENTIAL


 



 1
 









 


The processes described
herein may be modified from time to time to meet the needs of both parties
after review and approval by the CPMC pursuant to Section 2.2 of the Agreement.


I. Target List


MLNM has provided OBI
with a Target List per Section 2.2.1 of the Agreement.  The Target List is attached to this
Co-Promotion Plan as Appendix A.


Target List Format


The Target List was formatted as an Excel spreadsheet and delivered by
Director, Commercial IT at MLNM to a dedicated OBI/MLNM ftp site hosted by OBI
and contained the following fields:


·                  Area


·                  Region


·                  Territory


·                  Cm id [Customer Master identifier]


·                  Name


·                  Thalomid Decile


·                  RM Adjusted Tier


·                  Flag for First Position


·                  Promotion Candidates


·                  Default Position


·                  Revised Position


·                  Demote
Candidates


Development of Call Plan by OBI:


·                  OBI will use the
available information on the Target List to assign each First Position Target
and Second Position Target to at least one OBI sales representative.


·                  OBI will compare
the Target List to its existing customer list of oncology health care
providers.


·                  The MLNM Targets
on the Target List that are identified on OBI’s existing customer list of
oncology health care providers will be assigned to the applicable OBI sales
representative.  MLNM Targets that are
not listed on OBI’s existing list of oncology health care providers will be
sent to the OBI sales  representatives


·                  The OBI will
instruct its sales representatives to work with their MLNM sales representative
counterparts to validate the existence and location of the applicable MLNM
Targets.  Counterparts will be identified
through the shared rosters as laid out in this Co-Promotion Plan.


·                  If OBI, after
reasonable efforts and after consulting with MLNM, is unable to locate a
particular MLNM Target, MLNM will replace that MLNM Target with another MLNM
Target


·                  Once all MLNM
Targets have been located by the applicable OBI Sales Representatives, the list
of “located” targets will constitute the Target List.  MLNM and OBI will continue to reconcile the
Target List until 1500 First Position and 5000 Second Postiion “located”
targets are included.


·                  The Call Plan
will be provided to the CPMC for review and approval within [**] days of
receipt of the Target List.


 



 2
 









 


·                  The
Call Plan will be provided to the CPMC for review and approval within [**] days
of receipt of the Target List.


Semi-Annual Updates to the Target List 


Every May 15 and
November 15 MLNM will provide to OBI a new Target List pursuant to section
2.2.1 of the Agreement in the same format as the original Target List unless
mutually agreed upon by the parties.


OBI will follow
the above process to validate the Target List thereby developing a Target List
for the next semi-annual period pursuant to Section 2.2.1 of the Agreement.
Each updated Target List will be incorporated into the Co-Promotion Plan
following approval by the CPMC and will replace the immediately preceding Target
List.


II. Call
Plan


Distribute
Call Plan to OBI Sales Force


Promptly upon validation of the Target List by OBI,
all new MLNM Targets will be loaded into OBI’s customer relationship management
Siebel database.  Additionally OBI will
identify all MLNM Targets in the Siebel system with a “Home Office Rating”
(H.O. rating) and a “Call Goal”.   OBI
will assign a First Position Target a H.O. rating of VELCADE 1 and a Second
Position Target a  H.O. rating of VELCADE
2.  OBI will assign each MLNM Target a
Call Goal of [**] calls per calendar quarter.


Figure 1: Sample Siebel Screen:  (does not represent actual
screen)


[**]


 



 3
 









 


Semi-Annual Updates to the Call Plan


The Call Plan will
be updated according to the updated Target List. The updated Call Plan will be
submitted to the CPMC for review and approval within [**] days of OBI’s receipt
of the updated Target List.  Each updated
Call Plan will be incorporated into the Co-Promotion Plan following approval by
the CPMC and will replace the immediately preceding Call Plan.


OBI will provide all OBI
Sales Representatives with a copy of the most current Call Plan in the next
available production run of the Siebel Assignment Manager System after approval
by the CPMC.


New Indications


The process for updating
the Call Plan to support new indications will be discussed at the CPMC.


Sales
Direction:


OBI will instruct its Sales Representatives that each First Position
Target must receive a Call [**] a month as a First Position Call and each
Second Position Target must receive a Call [**] a month as a Second Position
Call.


Call
Plan Reporting


OBI will send a variety
of weekly reports to its sales representatives and sales management to help
them monitor their progress to the Call Plan.


OBI sales management will
receive reports that will help monitor District and Territory level Call Plan
performance and will alert them to underperforming areas.


Figure 2: Illustration of Call Plan
Performance Report: does not represent actual report


[**]


III. Sales Training


The approved and signed
sales training plan is attached as Appendix C.


IV. Promotional Material   


MLNM will develop proposed Core Promotional Materials (CPM)


·                  Once a CPM piece is initiated, MLNM
will assign a MLNM code number to it (designating OBI-affiliated).


·                  CPM materials will be reviewed by
MLNM in accordance with the MLNM promotional materials standard operating
procedure


·                  MLNM may choose to have a concept
meeting with OBI during, or prior to, preparation of the CPM.  The OBI Alliance Manager will help coordinate
scheduling a concept meeting.


·                  MLNM will ensure, prior to submission
to OBI for review, that all references utilized to support product claims in
the CPM are accurately represented.


·                  MLNM will provide OBI Alliance
Manager:


·                  Notification of expected review date
by MLNM


·                  Targeted delivery date to OBI for
review


Upon approval, MLNM will
submit the following to OBI Alliance Manager:


 



 4
 









 


·                  A PDF of the CPM piece


·                  Twelve copies of the final draft CPM
layout, with three sets of annotated references, folded 8 1/2 X
11".  A minimum of 3 CPM layouts
must be in color and printed on non-glossy paper.


·                  Final draft layout is required where
applicable.  Manuscript copy with lines
numbered in left margin should be submitted when layout is not feasible (i.e.,
IVR scripts, web sites, storyboards).


·                  Layout and manuscript must match if
both are submitted.


·                  Copies of references properly
annotated (e.g. highlighted/underlined) to facilitate the reviewer locating the
support in the reference for the corresponding claim, statement or presentation.


·                  One mock-up/comp is required for
multi-dimensional CPM pieces (e.g., boxes, items with multiple folds).


·                  Slide decks must be printed in color
or in grayscale, include speaker notes and slides must be numbered.


OBI Alliance Manager will:


·                  Obtain from MLNM the promotional code
prior to the materials being submitted for promotional review.


·                  All materials submitted for review
require a promotional code.  Contact
salessupply@obius.jnj.com to request form and instructions.


·                  Complete Promotional Review
Submission Cover Sheet


·                  Provide the following information for
the Promotional Review submission:


·                  A brief description of the business
reason for the use of the piece(s)


·                  Intended usage audience (e.g.
Oncology Sales, Strategic Customer Group, etc.)


·                  Target audience


·                  Documentation of approval from MLNM
Promotional Review Committee for OBI use of the materials that is consistent
with the usage and target audiences specified to the OBI Promotional Review
Committee.


·                  Seibel Key Communication Point and
Siebel Key Message


·                  The Key Communication Point cannot
exceed 30 characters in length; the Key Message cannot exceed 45 characters in
length


·                  Ensure delivery of twelve complete
sets of draft CPM and 3 sets of annotated references to Advertising and Promotion
Manager either hard copy or electronic to: promotialreview@prdus.jnj.com
mailbox


·                  Annotated references are for
distribution to Medical, Regulatory and Alliance Manager


·                                                                      Coordinate
with MNLM Alliance Director a joint meeting of representatives of both
companies to provide OBI feedback on Core Promotional Materials


·                  This meeting must be scheduled to
occur [**] business days from receipt of approved Core Promotional Materials
from MNLM


·                  In attendance at the joint company
meeting (either live or via teleconference) must be:


·                  OBI


·                  OBI Alliance Manager


·                  OBI Regulatory Advertising and
Promotion


·                  OBI Medical Director


·                  MNLM


·                  MLNM Promotional Material Review Team
(“PMRT”)


·                  Communicate to MLNM the following
information and assure that appropriate measures are taken at OBI


·                  Documentation of plan by MNLM for
timely notification to OBI of discontinuation or required changes to Core
Promotional materials


 



 5
 









 


·                  Core Promotional materials are
subject to the OBI 12-month review process


·                  OBI Advertising and Promotion Manager
will:


·                  Schedule the piece for PRC review
including the following reviewers (or designee):


	
  -Marketing 

  	
  [**]

  
	
  -Sales

  	
  [**]

  
	
  -Sales
  Training

  	
  [**]

  
	
  -Alliance Manager

  	
  [**]

  
	
  -Medical Director

  	
  [**]

  
	
  -Regulatory

  	
  [**]

  
	
  -Law
  Department

  	
  [**]

  
	
  -HCC

  	
  [**]

  
	
  -Medical
  Information

  	
  [**]

  



·                  Ensure functional roles bolded above have approved MLNM Core Promotional Material
prior to use by the OBI sales organization. 
Those members non-bolded are not required to approve the CPM prior to
use by the OBI Sales organization.


·                  Ensure the PRC meeting is held within
[**] business days of receipt of materials from MLNM.


·                  Summarize
and document all comments on behalf of OBI to be provided to MNLM with regard
to the CPM.


·                  Ensure
MLNM Core Materials are scheduled for 12-month review process


·                  Joint MLNM and OBI Review Committee
will:


·                  Ensure agreement on the content of
CPM and that it is in line with both companies applicable policies


·                  Facilitate formal sign off on final
materials


 



 6
 









 


V. Data/IT


 


Monthly Call Report


No later than [**] days after the end of the previous calendar month,
OBI will provide to MLNM a transaction level data file for all Calls that were
made during the previous calendar month.  The Excel file will be
transmitted automatically to a dedicated OBI/MLNM ftp site hosted by OBI [**]
via the Johnson & Johnson NCS Secure File Transfer System and will contain
the following fields:


·                  Siebel unique call ID


·                  Siebel unique territory ID


·                  RDT # (Region/District/Territory —
full OBI territory number)


·                  Call create date


·                  Call occurred


·                  Siebel unique employee ID


·                  Employee Last Name / First Name


·                  Siebel unique target/contact ID


·                  Target J&J ID


·                  Target ME #


·                  Target IMS #


·                  Target Last Name / First Name


·                  Target AMA specialty


·                  Siebel unique target address ID


·                  Target Practice Name


·                  Target Address Line 1/2


·                  Target City/State/Zip


·                  Product detailed (all VELCADE)


·                  The sequence or position of the
product on the call


·                  The communication/message point used
during the call


·                  The
materials used during the call


Quarterly Call Report


OBI will also provide to MLNM,
each quarter, data summarizing the Call activity for the calendar quarter, no
later than [**] days after the end of that quarter.  The data will be sent electronically to a
dedicated OBI/MLNM ftp site hosted by OBI [**] in Excel format.


Millennium will develop a Quarterly Call Report (Appendix B) which will
include a summary of call data for each MLNM Target, including:


·                  the number of First Position Calls by
month


·                  the number of Second Position Calls
by month by OBI Sales Representatives.


·                  Calls eligible for Minimum Frequency
calculations


·                  Reach Attained


·                  Calls eligible for reimbursement


·                  Calculated
payment due


 



 7
 









 


Sales Reports


Weekly VELCADE Sales Data to Trinity
Partners, LLC


MLNM
and OBI have entered into an arrangement for the purpose of having Trinity
Partners, a vendor with whom OBI has a contract services agreement for data
reporting services, provide sales data reporting services to OBI in fulfillment
of Millennium’s obligation to provide such information to OBI.  OBI will
be responsible for compensating Trinity Partners for the services it provides
in connection with the co-promote agreement.  A copy of the agreement
between Millennium and Trinity Partners as well as the letter of agreement
between Millennium and OBI are attached to the Co- Promotion Plan as Appendices
D and E, respectively.


To
assist Trinity Partners in its performance of these services, MLNM has agreed
to provide, by noon on the [**] business day of each calendar quarter, Trinity
Partners with a transaction level sales data file containing VELCADE sales The
MLNM file will be transmitted automatically via ftp over a secure VPN tunnel
and be configured as follows:


	
  Frequency / Time

  	
   

  	
  ·  Weekly, second business day of each calendar
  week by noon

  ·  Calendar week and covers Sunday through
  Saturday 

  ·  Rolling 52 weeks 

  ·  VELCADE data represented at the transaction
  level

   

  
	
  Filters / Criteria

  	
   

  	
  ·  No Puerto Rico

  ·  No “on hold” vials

   

  
	
  Fields

  	
   

  	
  ·  Transaction Date

  ·  Data Source

  ·  Product Brand / Name

  ·  Sale Qty (Units)

  ·  Unit Price ($/Unit)

  ·  Sale Amt ($)

  ·  Adjustment Flag

  ·  Organization CM identifier

  ·  Organization CM name

  ·  Organization Address/City/State/Zip

  ·  Department CM identifier

  ·  Department NDC/DEA/HIN identifiers

  ·  Department CM name

  ·  Department CM Address/City/State/Zip

  ·  Department DW name

  ·  Department DW Address/City/State/Zip

  



 


Master VELCADE Sales Account File


Millennium will provide
Trinity and OBI a master VELCADE account file by noon on the [**] business day
of each calendar week. The file is to provide an update on any organization
data that might have changed in the previous week. This file will contain:


	
  Fields

  	
   

  	
  ·  Organization CM identifier

  ·  Organization CM name

  ·  Organization Address/City/State/Zip

  ·  Department CM identifier

  ·  Department NDC/DEA/HIN identifiers

  ·  Department CM name

  ·  Department CM Address/City/State/Zip

  ·  Department DW name

  ·  Department DW Address/City/State/Zip

  



 



 8
 









 


Ongoing VELCADE Sales Account Matching Process


Millennium and OBI have conducted a preliminary organization and
professional matching exercise. The parties will continue to reconcile
organizations and professionals on an ongoing basis. This is to ensure that
sales are being properly credited to the correct OBI sales personnel and for
cross company data consistency.


 


Sales Reports


Trinity will then process
that data to create individual sales reports for each and every OBI
territory.  These weekly reports will be
made available to the OBI Sales Representatives via a secure web page, hosted
by Trinity, that the OBI Representatives and District Managers will access
using individual passwords.


The VELCADE sales reports
will be made available to the OBI Sales Force on Thursday of each week for the
prior week of sales. These reports are Confidential Information of MLM and may
contain material inside information.


Millennium field
personnel will not share their sales reports with their OBI counterparts due to
potential differences in territory alignments and sales credit allocations.


Both
Trinity and OBI are permitted to use VELCADE sales data for the sole purpose of
OBI fulfilling its obligations set forth under this Agreement.


 



 9
 









 


Monthly VELCADE Sales Reports
from Trinity

Trinity, on OBI’s behalf will generate and distribute VELCADE sales reports as
laid out in the Data Use Agreement between MLNM and Trinity Partners (Appendix
D).  Millennium field personnel will not
share their sales reports with their OBI counterparts due to potential
differences in territory alignments and sales credit allocations.


Millennium will pass
through to OBI any competitive sales data sharing costs charged by Wolters
Kluwer Health at the request of OBI.


Quarterly VELCADE Product Sales Reports for OBI
Sales Operations


Trinity will provide OBI
a quarterly VELCADE sales file to applicable OBI Sales Operations personnel to
be used for incentive compensation purposes. The report will include VELCADE
sales in dollars and units by assigned accounts with appropriate identifiers.


Initial VELCADE Sales Data to Trinity
Partners, LLC for OBI POAI


Trinity Partners will
generate a one-time report in PDF form only for the OBI territory and district
managers for use at the OBI POAI.  To support this process, MLNM will
provide to Trinity a transaction level sales data file containing VELCADE sales
for Q405 — Q306.  The file will be transmitted automatically via ftp over
a secure VPN tunnel and be configured as follows:


 


	
  Frequency / Time

  	
   

  	
  ·  One-time

  ·  Rolling 52 weeks, Q405 — Q306

  ·  VELCADE data represented at the transaction
  level

  
	
   

  	
   

  	
   

  
	
  Filters / Criteria

  	
   

  	
  ·  No Puerto Rico

  ·  No “on hold” vials

  
	
   

  	
   

  	
   

  
	
  Fields

  	
   

  	
  ·  Transaction Date

  ·  Data Source

  ·  Product Brand / Name

  ·  Sale Qty (Units)

  ·  Unit Price ($/Unit)

  ·  Sale Amt ($)

  ·  Adjustment Flag

  ·  Organization CM identifier

  ·  Organization CM name

  ·  Organization Address/City/State/Zip

  ·  Department CM identifier

  ·  Department NDC/DEA/HIN identifiers

  ·  Department CM name

  ·  Department CM Address/City/State/Zip

  ·  Department DW name

  ·  Department DW Address/City/State/Zip

  



 



 10
 









 


Sales Rosters


On the first day of each
calendar month, MLNM will provide to OBI a MLNM Sales Force Roster data
file.  The file will be transmitted to a dedicated OBI/MLNM ftp site
hosted by OBI [**] via the Johnson & Johnson NCS Secure File Transfer
System with contact information for the MLNM field force.  This MLNM Sales Force Roster data file will
contain the following fields:


·                  Territory Number & Name


·                  Region Number & Name


·                  Area Number & Name


·                  Contact
information for level:  Name, Email, Office Phone, Title


On the first day of each
calendar month, OBI will provide to MLNM an OBI Sales Force Roster data
file.  The file will be transmitted to a dedicated OBI/MLNM ftp site
hosted by OBI [**] via the Johnson & Johnson NCS Secure File Transfer
System with contact information for OBI Sales Representatives.  This OBI Sales Force Roster data file will
contain the following fields:


·                  Franchise Number & Name


·                  Division Number & Name


·                  Region Number & Name


·                  District Number & Name


·                  Territory Number & Name


·                  RDT # (Region/District/Territory —
full OBI territory number)


·                  Contact
information for level:  Name, Email, Phone


The roster information
will be used by Sales Force personnel to identify their respective counterparts
and facilitate communication between the two sales forces.


The MLNM and OBI Sales
Force Roster files are confidential.


Territory Alignments


On the first day of each
calendar month, MLNM will provide to OBI a Zip-Territory data file.  The
zip file will be transmitted to a dedicated OBI/MLNM ftp site hosted by OBI
[**]via the Johnson & Johnson NCS Secure File Transfer System and will
contain the following fields:


·                  Zip Code


·                  City


·                  State


·                  Territory
Number & Name


On the first day of each
calendar month, OBI will provide to MLNM a Physician-Territory data file for
the Millennium targets.  The zip file will be transmitted to a dedicated
OBI/MLNM ftp site hosted by OBI [**] via the Johnson & Johnson NCS Secure
File Transfer System and will contain the following fields:


·                  RDT # (Region/District/Territory —
full OBI territory number)


·                  OBI
identifier for the Physician


 



 11
 









 


List of
Appendices


Appendix A                                                                                                                                                                                                                                                                           Target
List (Electronic file)


Appendix B                                                                                                                                                                                                                                                                           Quarterly
Call Report


Appendix C                                                                                                                                                                                                                                                                           Sales
Training Plan


Appendix D                                                                                                                                                                                                                                                                           Millennium
and Trinity Partners Agreement


Appendix E                                                                                                                                                                                                                                                                            Millennium
and OBI Agreement


 



 12
 









 


Appendix
A


 




	
  Area

  	
  Region

  	
  Territory

  	
  Cm id

  	
  Name

  	
  Thal

  Decile

  	
  RM/Adjusted

  Tier

  	
  Flag
  for

  First

  Position

  	
  Flag

  for

  Delete

  	
  Med,

  Zero

  Calls

  	
  Med,

  1-4

  Calls

  	
  Med,

  5-9

  Calls

  






 


Confidential Materials omitted
and filed separately with the Securities and Exchange Commission.  [**]


 



 13














Appendix
B


	
  Second Quarter 2007

  	
  First Position Calls

  	
   

  	
  Second Position Calls

  	
   

  	
   

  	
   

  
	
  Target

  	
   

  	
  OBI ID#

  	
   

  	
  MPI ID#

  	
   

  	
  Other 

  Agreed 

  Info

  	
   

  	
  FPT/SPT

  	
   

  	
  Apr

  	
   

  	
  May

  	
   

  	
  June

  	
   

  	
  Apr

  	
   

  	
  May

  	
   

  	
  June

  	
   

  	
  Calls Eligible 

  for Min Freq

  	
   

  
	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
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  [**]

  	
   

  	
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  [**]

  	
   

  	
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  [**]

  	
   

  	
  [**]

  	
   

  
	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Reach
and Frequency Calculation Per Section 3.2.1


	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Call Plan Attainment

  	
   

  	
   

  	
   

  	
  Total 

  Targets

  	
   

  	
  Reached 

  Targets

  	
   

  	
  Reach %

  	
   

  	
  Eligible 

  Calls

  	
   

  	
  Actual “Min 

  Frequency”

  	
   

  	
  Reach Std

  	
   

  	
  Freq Std

  	
   

  	
  Reach Std

  	
   

  	
  Freq Std

  	
   

  
	
  FPT

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  SPT

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  



 


Call
Cost Reimbursement Per Section 5.1.2


	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Call Cost Reimbursemt

  	
   

  	
  First 

  Position 

  Calls

  	
   

  	
  Second 

  Position 

  Calls

  	
   

  	
  Implied 

  Pmt

  	
   

  	
  Pmt Cap

  	
   

  	
  Payment 

  Due

  	
   

  
	
  First Position
  Targets

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Second Position
  Targets

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  
	
  Call Cost

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  
	
  Reimb Rate

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Subject
to provisions of Section 3.2 of the co-promotion agreement


 















MILLENNIUM/OBI CO-PROMOTION


SALES TRAINING
PLAN






APPENDIX C






Pursuant to the
October 25th, 2006 Co-Promotion Agreement by, and between, Millennium
Pharmaceuticals, Inc. (MLNM) and Ortho Biotech, Inc. (OBI) (the “Agreement”),
this Training Plan is attached hereto and will be incorporated in to the
Agreement as Appendix C.


Capitalized terms
used but not defined herein shall have the same meaning given to them in the
Agreement.


This training plan
will become effective upon approval and agreement by representatives of each
Party.




	
  Millennium
  Pharmaceuticals, Inc

  	
   

  	
  Ortho Biotech, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Grant Bogle

  	
   

  	
  Lou Ferrari

  
	
  SVP, Oncology Sales & Marketing

  	
   

  	
  VP, Sales

  






2006 Approved Training Plan


November 24th, 2006











 


	
  

  







 


CO-PROMOTION
TRAINING PLAN


21-NOV-06






APPENDIX C



















EXECUTIVE SUMMARY






Millennium is
responsible for training OBI’s District Trainers (DTs), District Managers
(DMs), Regional Business Directors (RBDs) and thereby enabling the training of
OBI’s Sales Force by OBI Trainers.


OBI is responsible
for providing a sufficient number of OBI Trainers to train all OBI Sales
Representatives and for ensuring that the OBI Sales Force is trained in
accordance with this Training Plan.


MLNM will provide
a minimum of one copy of all training materials for use by OBI solely in
connection with the training of OBI Trainers and Sales Representatives. OBI has
the right to reproduce these training materials and to provide copies to OBI
Trainers and Sales personnel, only.


The training will
be focused on the use of VELCADE® (bortezomib) for injection, in the
treatment of multiple myeloma and mantle cell lymphoma.


Training will be
conducted in two waves; MLNM will train OBI DTs, DMs and RBDs in the first wave
and OBI Trainers will train the entire OBI Sales Force in the second wave.  The training of OBI DTs, DMs and RBDs will be
completed by December 31st 2006, and the training of the OBI Sales Force
will be completed by January 25th,
2007.


MLNM will provide
supplementary training to OBI Trainers as deemed necessary and appropriate by
MLNM during the term of the Agreement, for example in regards to any newly
approved indication for VELCADE.  In
turn, OBI trainers will then deliver such additional training to all members of
the OBI Sales Force.






TRAINING
OBJECTIVES






The training
objectives are (i) to train OBI DTs, DMs and RBDs on the use of VELCADE in the
treatment of multiple myeloma and mantle cell lymphoma to enable (ii) the
training of the OBI Sales Force by OBI DTs, DMs and RBDs.


On completion of
the training detailed below, the OBI Sales Force will be able to:


·                  Effectively
deliver the core message surrounding VELCADE in the treatment of multiple
myeloma and mantle cell lymphoma, as determined by MLNM.


·                  Successfully
address VELCADE objections.


·                  Appropriately
report, and respond to, reports of possible adverse events, product complaints
and unsolicited requests for information.















TRAINING
MODEL






The training
deployed by MLNM to OBI is based on approximately [**] hours of home study
spread over the course of approximately [**] weeks, supplemented with WEBEX
sessions and live training, and finalized with practical workshop sessions.


The actual
training consists of four phases:


1.               Home
Study


2.               WEBEX
Training


3.               [**]
Live Training


4.               [**]
Practical Application






TRAINING
SCHEDULE






MLNM
Training of OBI DTs, DMs, RBDs & In-House Training Staff


October 28th, 2006:  [**].


November, 7th, 2006:  [**].


November 6th-10th, 2006:  [**].


November 28th, 2006:  [**].


December 4th-8th,
2006:  [**].


December 13th-14th, 2006:  [**].


January 15th-19th, 2007:  [**].


OBI
Training of OBI Sales Force with support from MLNM


December, 1st, 2006:  [**].


December 19th-20th, 2006:  [**].


January 8th-12th, 2007:  [**].


January
25th,
2007:[**].















TRAINING
CONTENT






 


On completion of the training schedule outlined above,
all members of the OBI Sales Force will have a solid understanding of:


·      Proteasome inhibition as a mechanism of
action


·      The disease of multiple myeloma


·      The current myeloma market


·      The Crest/029 clinical trials in relapsed
and refractory multiple myeloma


·      The APEX phase III clinical trial in
relapsed and refractory multiple myeloma


·      The PINNACLE clinical trial in mantle cell
lymphoma


·      Competition in the multiple myeloma market


·      The content of the promotional items used
to support VELCADE in the market place.


·      Pricing and reimbursement in the multiple
myeloma market.


·      Potential adverse events associated with
multiple myeloma therapies and all obligations around the reporting of such
events.


In
addition, all OBI Sales personnel will be able to:


·      Effectively deliver the core message
surrounding VELCADE in the treatment of multiple myeloma and mantle cell
lymphoma, as determined by MLNM.


·      Successfully address VELCADE objections.


·      Appropriately report and respond to
reports of possible adverse events, product complaints and unsolicited requests
for information






training
materials






 


The training binder created by MLNM and supplied to OBI for use in the
training of the OBI Sales Force contains the following:


1.               Training Objectives


2.               Home Study Agenda


3.               Module 1:  “Overview of Tumor Types
and Their Treatments”


4.               Module 2:  “Multiple Myeloma”


5.               Module 3:  “VELCADETM (bortezomib) for
Injection











6.               A section on Clinical Data which comprised copies of the following
documents:


[**]


7.               A section on Competitor Information which comprised copies of the
following documents:


[**]


8.               An Audio/Video Section which comprised the following items:


a.               [**]






TRAINING
VALIDATION






 


MLNM and OBI will
jointly develop assessment materials to allow MLNM to test the performance of
OBI Trainers and each OBI Trainer will then be required to receive an
individual minimum score of [**] percent ([**]%) under such tests before he or
she may participate in the training of the OBI Sales Force.


The training of
the OBI Sales Force will also be validated via a series of learning assessments
(quizzes and tests).  These learning
assessments will be developed by MLNM and delivered to OBI Training Managers,
then distributed and monitored by OBI Trainers. 
OBI will ensure, through the administration of these assessments, that
all OBI Sales personnel receive the training and assessments as outlined in
this plan and meet the current standards of OBI applicable to other
pharmaceutical products and the applicable industry standards for comparable
pharmaceutical products.















Appendix
D


DATA USE AGREEMENT


THIS DATA USE AGREEMENT (including Exhibit A) (the “Agreement”) is
between Millennium Pharmaceuticals, Inc. (“Millennium”), whose business address
for all purposes related to this Agreement is 40 Lansdowne Street, Cambridge, Massachusetts
02139; and Trinity Partners, LLC (“Trinity”), whose business address for all
purposes related to this Agreement is 230 Third Avenue, Prospect Place,
Waltham, MA 02451.  Millennium and
Trinity may each be individually referred to herein as a “Party” and may be
collectively referred to as the “Parties.”


BACKGROUND


Millennium and Ortho Biotech Products, L.P. (“OBI”) have entered into a
co-promotion agreement, effective as of October 25, 2006  (the
“Co-Promotion Agreement”), whereby OBI and Millennium have agreed to co-promote
Millennium’s proprietary product VELCADE® (bortezomib)
for Injection.  In connection with the
co-promotion agreement, Millennium is required to provide certain VELCADE sales
data reports to OBI for its purpose of determining sales force incentive
compensation.


OBI and Trinity have entered into a master services agreement,
effective as of August 22, 2005 whereby Trinity provides data reporting
services to OBI.


Millennium and OBI, in a separate letter of agreement, have agreed that
Millennium will fulfill its obligation to provide VELCADE sales data reports to
OBI by providing raw sales data to Trinity, for Trinity to maintain in
confidence, and create and provide VELCADE sales data reports to OBI.  This Agreement will become an attachment to
the letter of agreement between Millennium and OBI.


In consideration of the mutual promises set forth herein and attached
hereto, the Parties agree to be bound by the terms and conditions of this
Agreement and have caused this Agreement to be executed by their duly
authorized representatives.


1.             Transfer of
Millennium Data to Trinity. 
Millennium will transfer raw VELCADE sales data (“Millennium Data”) to
Trinity on a weekly, monthly and quarterly basis as set forth in Exhibit
A.  The data fields will be mutually
agreed upon by Millennium and OBI and provided to Trinity.


2.             Trinity License,
Use and Restrictions.


(a)           License
and Use.  Subject to the terms and
conditions of this Agreement, Millennium hereby grants to Trinity the limited,
non-exclusive, non-transferable right during the Term to use Millennium Data
for the sole purpose of compiling VELCADE sales data reports within the OBI
sales force alignment and providing such reports to OBI as set forth
herein.  Trinity will maintain the
Millennium Data in a secure database, as set forth in Exhibit A,  segregated from other data it is compiling on behalf of or
reporting to OBI.  Trinity will provide
the VELCADE sales data reports on weekly and monthly basis in a non-editable
format to the OBI sales operations and field sales personnel mutually agreed
upon by Millennium and OBI and provided to Trinity.  Millennium will have access to the reports
that are provided to OBI.


(b)           Restrictions
on Use.  Trinity will not aggregate
Millennium Data within the current quarter beyond the mutually agreed upon
level, except for the quarterly data file. 
Trinity will not use or disclose the Millennium Data, including without
limitation to OBI, except as











expressly
permitted herein, without the express prior written consent of Millennium.  Trinity will not disseminate information that
would allow for the compilation of national sales data within a current
quarter.  Millennium Data will only be
disclosed within Trinity and to those OBI personnel who are working on VELCADE,
as agreed by Millennium and OBI.


3.             Compensation.  OBI is responsible for compensating Trinity
for any services that it performs in connection with this Agreement.  Millennium will have no obligation to
compensate Trinity.


4.             Confidentiality.


(a)           Definition.  The term  “Confidential Information” includes all information that
Millennium treats as confidential or proprietary, including without limitation
the Millennium Data, whether or not labeled “Confidential,” in any format or
compilation.


(b)           Trinity
Confidentiality Obligation.  Trinity
acknowledges that Millennium is and will remain the sole owner of the
Confidential Information.  During the
term of this Agreement and thereafter, Trinity will take all commercially
reasonable precautions to protect the confidentiality of Confidential
Information, and will not disclose or use any Confidential Information except
with Millennium’s knowledge and as necessary to perform its obligations
hereunder.  In particular, Trinity may
disclose Confidential Information to its employees who need to know such
Confidential Information in order to perform Trinity’s obligations hereunder
and who are obligated to protect the confidentiality of such Confidential
Information under terms substantially similar to those set forth in this
Section 4(b).  If required by law,
Trinity may disclose Confidential Information to a governmental authority,
provided that reasonable advance notice is given to Millennium and Trinity
reasonably cooperates with Millennium to obtain confidentiality protection.


5.             Expiration and
Termination.


(a)           Expiration.   This Agreement will be co-terminous with the
Co-Promotion Agreement, which expires on December 31, 2008.  It may be extended by mutual agreement of the
Parties or earlier terminated in accordance with this Section 5.


(b)           Termination
by Millennium.  Millennium may
terminate this Agreement at any time upon thirty (30) days’ prior written
notice to Trinity.  In addition,
Millennium may terminate immediately upon written notice to Trinity if Trinity
breaches this Agreement.


(c)           Termination
by Trinity.  Trinity and/or OBI may
terminate this Agreement upon thirty (30) days’ prior written notice to
Millennium if Millennium breaches this Agreement and fails to cure the breach
during the notice period.


(d)           Effect
of Termination or Expiration.  Upon
termination or expiration of this Agreement, neither Party shall have any
further obligations under this Agreement, except that Trinity will immediately
return to Millennium all Confidential Information and Trinity will erase or
destroy any copies of Millennium Data from all media, disk files and data
systems and shall, upon Millennium’s request, deliver to Millennium a statement
from an individual having sufficient knowledge of this Agreement and the status
of Millennium Data, certifying that Millennium Data has been erased from all
storage media of Trinity.











(e)           Survival
of Certain Terms.  The Parties
acknowledge that some obligations in this Agreement will survive the expiration
or any termination of this Agreement, particularly obligations within the
Restrictions on Use, Confidentiality, and Indemnification sections.


6.             Audits.  Upon prior request of Millennium, Trinity
will permit Millennium to enter its facility(ies) and to conduct periodic
audits to monitor use of the Millennium Data. 
In addition, Trinity will provide Millennium with all such information
as Millennium may reasonably request to enable Millennium to satisfy itself of
Trinity’s compliance with its obligations under the Agreement.


7.             Indemnification
of Millennium by Trinity.  Trinity
agrees to indemnify Millennium, its affiliates and their respective directors,
officers, employees and agents (collectively, the “Millennium Indemnified
Parties”) for any third party claims, including reasonable attorneys’ fees for
defending those claims, arising out of Trinity’s breach of the Agreement.  Trinity, however, will not indemnify the
Millennium Indemnified Parties to the extent that these claims result from the
gross negligence or willful misconduct of the Millennium Indemnified
Parties.  As a condition of this
indemnification obligation, Millennium must promptly notify Trinity of a
covered claim, must tender to Trinity (and/or its insurer) full authority to
defend or settle the claim, and must reasonably cooperate with the defense.


8.             Miscellaneous.


(a)           No
partnership or Employment Relationship. 
This Agreement does not create a partnership or employment relationship
between the Parties.


(b)           Publicity.  Neither Party may use the other Party’s name
in any form of advertising, promotion or publicity, including press releases,
without the prior written consent of the other Party.  This term does not restrict either Party’s
ability to use the other Party’s name in filings with the Securities and
Exchange Commission, Food and Drug Administration, or other governmental
agencies, when required to do so.


(c)           Notice.  All notices must be written and sent to the
address identified in this Agreement or a subsequent notice.  Notices to Millennium must be marked “Attention:
Legal Department.” All notices will become effective upon delivery.


(d)           Assignment.
This Agreement may not be transferred, in whole or in part, any Party, without
the prior written consent of the other Parties. 
However, Millennium may assign this Agreement, in whole or in part, to a
subsidiary, or in connection with a merger, consolidation, or a sale or
transfer of all or substantially all of the assets to which this Agreement
relates.


(e)           Entire
Agreement.  This Agreement
constitutes the entire agreement of the parties with regard to its subject
matter, and supersedes all previous written or oral representations, agreements
and understandings between the Parties











(f)            Amendment.  This Agreement may only be changed by a
writing signed by authorized representatives of the Parties.


 (g)          Applicable Law.  This Agreement will be governed by, and
construed in accordance with, the law of the Commonwealth of Massachusetts,
without regard to any choice of law principle that would dictate the
application of the law of another jurisdiction.


	
  MILLENNIUM PHARMACEUTICALS, INC.

  
	
   

  
	
  By:

  	
  /s/ Lilla Swan

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Sr. Director

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  12/20/2006

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TRINITY PARTNERS, LLC.

  
	
   

  
	
  By:

  	
  /s/ John Corcoran

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  12/19/2006

  	
   

  












EXHIBIT A


Operating
Guidelines


These
Operating Guidelines will be incorporated into the Data Use Agreement between
and among Millennium Pharmaceuticals, Inc. (“Millennium”), Ortho Biotech
Products, LP (“OBI”) and Trinity Partners, Inc. (“Trinity”). Capitalized terms
not otherwise defined in this Operating Guidelines will have the same meaning
as set forth in the Agreement.


In performing
their obligations under the Agreement, the Parties will follow these Operating
Guidelines. The operating guidelines can be updated and modified as mutually
agreed upon by the parties.


1.0 Data
Receipt from Millennium


1.1                     Millennium
will send raw VELCADE sales data to Trinity through a mutually agreed upon FTP
server.


1.2                     Data will be
sent on weekly, monthly and quarterly basis.


1.2.1                                    Weekly
data is described as data from a standard calendar week measured from Sunday to
Saturday. Data will be transferred within [**] business days after the week
closes. The file will contain a rolling 52 weeks of data.


1.2.2                                    Monthly
data is described as data from the standard calendar month. Data will be
transferred within [**] business days after the close of a month. The file will
contain a rolling 12 months of sales data.


1.2.3                                    Quarterly
data is described as data from a calendar quarter (Jan-Mar, Apr-Jun, Jul-Sept,
Oct-Dec) this file will be sent within [**] business days after the Millennium
public earnings release for the current quarter. The file will contain a
rolling 4 quarters worth of data.


1.3                     Millennium
data files will contain at minimum sales within the specified time period in
vials by account. Additional data fields will be mutually agreed upon by OBI
and Millennium.


2.0       Millennium Data Processing and Security by Trinity


2.1                     Trinity will process, maintain, and store the Millennium data in
dedicated, secured databases or file shares and segregated from other data
being compiled on behalf of OBI or other third parties.  Millennium data should not be stored locally
on any laptop.


2.2                     Trinity shall take the appropriate technical and organization security
measures to protect Millennium data from accidental or deliberate manipulation
and unauthorized access or disclosure. 
Access to Millennium data should be managed by unique passwords issued
only to individuals working on VELCADE. 
Staff must not share passwords, nor write down their password (even if
kept in “a safe place”).  











To
the extent possible, database authentication should enforce strong passwords
(e.g. a minimum of eight characters, 


to
include mix of numbers, mixed case letters and special characters) as these are
less easy for others to deduce, and 


regular changes of password
shall be enforced.


2.3                     Any Millennium data reports produced for OBI by Trinity shall be
jointly agreed upon by Millennium and shall always be marked as “Millennium
Confidential”.


2.4                     To avoid unencrypted interceptions of data on Millennium data or report
transfers between Trinity and OBI, secure file or data transfer methods must be
used:  Secure File Transfer Protocol or
Secure VPN.


3.0 Sales Structure Mapping


3.1                     To ensure sales on a weekly and monthly basis are not aggregated above
the OBI District level unless expressly consented to by Millennium; the Parties
agree to the following sales force structure of Millennium and OBI.  




	
  Levels

  	
  Millennium

  	
  OBI

  	
   

  
	
  Highest

  	
  National

  	
  National

  	
   

  
	
   

  	
  Area

  	
  Regional 

  	
  Business 

  
	
   

  	
   

  	
  Directors

  	
   

  
	
   

  	
  Regional

  	
  District

  	
   

  
	
  Lowest

  	
  Territory

  	
  Territory

  	
   

  






 


3.2                   The
Parties acknowledge that any OBI personnel receiving current aggregated sales
data above the District level within the current quarter will be considered to
have inside information and subject to Section 6 of the Agreement.


4.0 Contact Information


Millennium Pharmaceuticals, Inc.


Millennium
Pharmaceuticals, Inc.


40 Landsdowne Street


Cambridge, MA
02139


Main Telephone
Number: 1-617-670-7000


VELCADE Commercial
Operations


Amy Winnen


Senior Manager,
Commercial Operations


Telephone Number:
1-617-444-1343


Fax Number: 
1-617-679-7474











VELCADE Commercial
Data Warehouse


Sue Corwin


Senior Manager,
Information Technology


Telephone Number:
1-617-551-3982


Trinity


Trinity
Partners, LLC


230
Third Avenue


Waltham,
MA 02451


Main Telephone number 781-487-7300


Glenn
Wong


Director
of Operations


Telephone Number: 1-781-487-7300 x104


Zackary
King


Director
of Technology


Telephone Number: 1-781-7300 x132


OBI


Ortho
Biotech Products LP


PO
Box 6914


430
Rt. 22


East Bridgewater, NJ 08807-0914


Amy
Ricca


Director,
Sales Measurement


Telephone Number: 1-908-541-4876


Scott
Wearley


Information
Management Lead


Telephone Number:1-908-541-4629















Appendix
E


December 21, 2006


Brian Martin

Ortho Biotech Products, L.P.

P.O. Box 6914

430 Route 22

East Bridgewater, NJ  08807-0914


RE: Fulfillment of
certain obligations under the Co-Promotion Agreement between Millennium
Pharmaceuticals, Inc. (“Millennium”) and Ortho Biotech Products, L.P. (“OBI”),
dated October 25, 2006 (the “Co-Promotion Agreement”)


Dear Mr. Martin:


The purpose of this
letter of agreement is to document the parties’ understanding with respect to
the fulfillment of certain obligations under the Co-Promotion Agreement.  The parties agree as follows:


1.               Millennium will
fulfill its obligation to provide VELCADE® (bortezomib) for
Injection sales data reports to OBI by providing raw sales data to Trinity
Partners, L.L.C. (“Trinity”) and having Trinity perform the activities
described in the Data Use Agreement, dated December 20, 2006, between
Millennium and Trinity.  The Data Use
Agreement is attached to this letter of agreement as an exhibit.  Trinity will provide weekly, monthly and
quarterly VELCADE sales data reports (“Millennium Data”) to OBI as set forth in
the Data Use Agreement.


2.               OBI may use the
Millennium Data for the purpose of determining incentive compensation and
account planning activities for OBI sales representatives and for the purpose
of better understanding VELCADE:Doxil combination usage.  OBI will not aggregate the Millennium Data at
a national level for the prior quarter only after Millennium’s quarterly
earnings release.


3.               OBI will be solely
responsible for compensating Trinity for the services it performs under the
Data Use Agreement.  Millennium will have
no obligation to compensate Trinity for such servies.  The terms of the Data Use Agreement will not
be revised without prior notice to OBI.


4.               The confidentiality
and indemnification obligations set forth in the Co-Promotion Agreement will
apply to the activities set forth in this letter of agreement.


5.               In the event of any
conflict between this letter of agreement and the Co-Promotion Agreement, the
Co-Promotion Agreement will prevail.











Please acknowledge your
acceptance of the terms set forth above by countersigning this letter of
agreement where indicated below and returning a signed copy to me.


Sincerely,

Millennium Pharmaceuticals, Inc.


	
  By:

  	
  /s/ Lilla O.
  Swan

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Director, Millennium-OBI Co-Promotion Alliance

  	
   

  
	
  Date:

  	
  1/12/07

  	
   

  
	
   

  
	
   

  
	
  AGREED TO AND ACCEPTED:

  
	
  Ortho Biotech Products, L.P.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Brian Martin

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive Director, Business Operations &
  Analysis

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  1/12/2007

  	
   

  



 











Appendix C


Training Plan


 
















MILLENNIUM/OBI
CO-PROMOTION


SALES TRAINING PLAN


 






APPENDIX
C






 


Pursuant to the
October 25th, 2006 Co-Promotion Agreement by, and between, Millennium
Pharmaceuticals, Inc. (MLNM) and Ortho Biotech, Inc. (OBI) (the “Agreement”),
this Training Plan is attached hereto and will be incorporated in to the
Agreement as Appendix C.


Capitalized terms
used but not defined herein shall have the same meaning given to them in the
Agreement.


This training plan
will become effective upon approval and agreement by representatives of each
Party.


 


 


 


	
  Millennium Pharmaceuticals, Inc

  	
   

  	
  Ortho Biotech, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Grant Bogle

  	
  Lou Ferrari

  
	
  SVP, Oncology Sales & Marketing

  	
  VP, Sales

  




 1
 














 









 


 


CO-PROMOTION TRAINING
PLAN


 


21-NOV-06






 


APPENDIX C







 2
 













EXECUTIVE
SUMMARY






 


Millennium is
responsible for training OBI’s District Trainers (DTs), District Managers
(DMs), Regional Business Directors (RBDs) and thereby enabling the training of
OBI’s Sales Force by OBI Trainers.


OBI is responsible
for providing a sufficient number of OBI Trainers to train all OBI Sales
Representatives and for ensuring that the OBI Sales Force is trained in
accordance with this Training Plan.


MLNM will provide
a minimum of one copy of all training materials for use by OBI solely in connection
with the training of OBI Trainers and Sales Representatives. OBI has the right
to reproduce these training materials and to provide copies to OBI Trainers and
Sales personnel, only.


The training will
be focused on the use of VELCADE® (bortezomib) for injection, in the
treatment of multiple myeloma and mantle cell lymphoma.


Training will be
conducted in two waves; MLNM will train OBI DTs, DMs and RBDs in the first wave
and OBI Trainers will train the entire OBI Sales Force in the second wave.  The training of OBI DTs, DMs and RBDs will be
completed by December 31st 2006, and the training of the OBI Sales Force
will be completed by January 25th,
2007.


MLNM will provide
supplementary training to OBI Trainers as deemed necessary and appropriate by
MLNM during the term of the Agreement, for example in regards to any newly
approved indication for VELCADE.  In
turn, OBI trainers will then deliver such additional training to all members of
the OBI Sales Force.


 






TRAINING
OBJECTIVES






The training
objectives are (i) to train OBI DTs, DMs and RBDs on the use of VELCADE in the
treatment of multiple myeloma and mantle cell lymphoma to enable (ii) the
training of the OBI Sales Force by OBI DTs, DMs and RBDs.


On completion of
the training detailed below, the OBI Sales Force will be able to:


·                  Effectively
deliver the core message surrounding VELCADE in the treatment of multiple
myeloma and mantle cell lymphoma, as determined by MLNM.


·                  Successfully
address VELCADE objections.


·                  Appropriately
report, and respond to, reports of possible adverse events, product complaints
and unsolicited requests for information.



 3
 













TRAINING
MODEL






 


The training
deployed by MLNM to OBI is based on approximately [**] hours of home study
spread over the course of approximately [**] weeks, supplemented with WEBEX
sessions and live training, and finalized with practical workshop sessions.


The actual
training consists of four phases:


1.               Home
Study


2.               WEBEX
Training


3.               [**]
Live Training


4.               [**]
Practical Application






TRAINING
SCHEDULE






MLNM
Training of OBI DTs, DMs, RBDs & In-House Training Staff


October 28th, 2006:  [**].


November, 7th, 2006:    [**].


November 6th-10th, 2006:  [**].


November 28th, 2006:  [**].


December 4th-8th,
2006:  [**].


December 13th-14th, 2006:  [**]


January 15th-19th, 2007:  [**]




 


OBI Training of OBI Sales Force with support from
MLNM


December, 1st, 2006:    [**].


December 19th-20th, 2006:  [**].


January 8th-12th, 2007:  [**].


January
25th,
2007:  [**].



 4
 













TRAINING
CONTENT








On completion of the training schedule outlined above, all members of the OBI
Sales Force will have a solid understanding of:


·                  Proteasome
inhibition as a mechanism of action


·                  The
disease of multiple myeloma


·                  The
current myeloma market


·                  The
Crest/029 clinical trials in relapsed and refractory multiple myeloma


·                  The
APEX phase III clinical trial in relapsed and refractory multiple myeloma


·                  The
PINNACLE clinical trial in mantle cell lymphoma


·                  Competition
in the multiple myeloma market


·                  The
content of the promotional items used to support VELCADE in the market place.


·                  Pricing
and reimbursement in the multiple myeloma market.


·                  Potential
adverse events associated with multiple myeloma therapies and all obligations
around the reporting of such events.


In
addition, all OBI Sales personnel will be able to:


·                  Effectively
deliver the core message surrounding VELCADE in the treatment of multiple
myeloma and mantle cell lymphoma, as determined by MLNM.


·                  Successfully
address VELCADE objections.


·                  Appropriately report and respond to
reports of possible adverse events, product complaints and unsolicited requests
for information


 






TRAINING
MATERIALS








The training binder created by MLNM and supplied to OBI for use in the training
of the OBI Sales Force contains the following:


1.               Training Objectives


2.               Home Study Agenda


3.               Module 1:  “Overview of Tumor Types
and Their Treatments”


4.               Module 2:  “Multiple Myeloma”


5.               Module 3:  “VELCADETM (bortezomib) for
Injection



 5
 









6.               A section on Clinical Data which comprised copies of the following
documents:


[**]


7.               A section on Competitor Information which comprised copies of the
following documents:


[**]


8.               An Audio/Video Section which comprised the following items:


a.               [**]






TRAINING
VALIDATION






 


MLNM and OBI will
jointly develop assessment materials to allow MLNM to test the performance of
OBI Trainers and each OBI Trainer will then be required to receive an
individual minimum score of [**] percent ([**]%) under such tests before he or
she may participate in the training of the OBI Sales Force.


 


The training of
the OBI Sales Force will also be validated via a series of learning assessments
(quizzes and tests).  These learning
assessments will be developed by MLNM and delivered to OBI Training Managers,
then distributed and monitored by OBI Trainers. 
OBI will ensure, through the administration of these assessments, that
all OBI Sales personnel receive the training and assessments as outlined in
this plan and meet the current standards of OBI applicable to other
pharmaceutical products and the applicable industry standards for comparable
pharmaceutical products.



 6
 









Appendix D


Terms And
Conditions Applicable To Product Orders


 



 7

















VELCADE ® (bortezomib) for
Injection Ordering and Billing Process Overview






 - 1 -
 








 


	
  Table of Contents

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Customer Setup Information and Maintenance

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  VELCADE® (bortezomib) for Injection
  Orders

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  Ordering Methods

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  Hours of
  Operation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Order Quantities

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Returns

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Shipment
  Packaging

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Packing Slip

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Order Tracking

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Invoicing and Chargebacks

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Invoices

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Wholesale
  Acquisition Cost (As of January 1, 2006)

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Payment Terms

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Credit Limits

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Chargeback
  Submission

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Frequently Asked Questions (FAQs)

  	
   

  	
  6

  



 



 - 2 -
 








Customer Setup Information and
Maintenance






 


In order to facilitate
ordering through MillenniumDirectSM the following need to
occur:


1.       MillenniumDirectTM needs to pre-load validated Ship-to addresses for
each wholesaler/distributor and
their related VELCADE® (bortezomib) for Injection customers in our database.


a.       New distributors and wholesalers can complete a business application found on MillenniumDirect.net under the
“New Account Sign Up Section.” A copy
of an applicable and valid license must accompany the application. New wholesalers/distributors can also call
1.866.VELCADE (1.866.835.2233),
option 5 to obtain set up instructions


2.       If you need to create a new Ship-to site after the initial set-up
packet has been returned to
MillenniumDirectSM it can be done at the time of order by completing a “New Ship-To Request Form.” You will be asked
to provide a DEA or HIN number/state
license in addition to the ship-to address information.


3.       Pharmacies and home healthcare companies wishing to purchase VELCADE
must have a signed Letter of
Agreement with Millennium Pharmaceuticals and/or provide prescriber level information at the time of
order before VELCADE will be shipped.


 


VELCADE Orders






 


Ordering
Methods


We have implemented the
following ordering methods to request VELCADE drop shipments  to your customers:


1.       Internet. The site can be reached at www.millenniumdirect.net
To obtain a personalized
login ID and password call 1.866.VELCADE (1.866.835.2233),option 5


1.       Phone. 1.866.VELCADE (1.866.835.2233), option 5


2.       Fax. 1.877.878.3479


3.       EDI. Placing
orders via EDI will require an initial setup time. This time varies and is dependent on the availability of an EDI
representative from your company. If you are interested in placing EDI orders, please contact us at
1.866.VELCADE (1.866.835.2233),option
5.



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Hours of
Operation


Customer service and the
fulfillment center will be open to process drop ship orders from 7:30  AM to 7:00 PM Central Time Monday through
Friday; excluding major holidays. Holiday hours are posted on MillenniumDirect.net


Orders placed before 6:00 PM
Central Time will be prepared and shipped that day for delivery  the next business day by 10:30 AM local time.
Orders placed on Fridays will be delivered on Monday morning.


Any order requiring
expedited delivery or other delivery options please contact  1.866.VELCADE (1.866.835.2233), option 5


Order
Quantities


VELCADE® (bortezomib)
for Injection cannot be ordered in quantities greater than 30 vials unless previously authorized by Millennium
Pharmaceuticals. Orders will
only be shipped to hospitals, clinics, doctors’ offices, approved pharmacies,
and approved home health care
companies with valid licenses. Orders cannot be filled for product being used outside the United States.


Returns


VELCADE has
a limited return policy. If there is a problem with a VELCADE order, please contact MillenniumDirectTM at 1.866.VELCADE
(1.866.835.2233), option 5.


If a return is approved, it
will only be accepted if all instructions are followed and returned from
the Ship-to customer directly.


Shipment
Packaging


VELCADE will be shipped to
Ship-to customers in packaging labeled MillenniumDirectSM from Louisville, KY. The package will not
contain any ICS branding.


VELCADE is shipped under
ambient conditions and should be stored according to the  product’s labeling.


Packing
Slip


A packing slip will be
included in each shipment. The packing slip will contain details of the  order including ship-to customer name and
address, order date, order number, quantity of product in that particular box. There will not be an invoice in the
box.


Order
Tracking


All shipments can be tracked
via www.millenniumdirect.net Shipment tracking information is  also available by calling 1.866.VELCADE
(1.866.835.2233), option 5



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Invoicing and Chargebacks






 


Invoices


Invoices will be sent to the
wholesaler/distributor that placed the order. Wholesaler  subsidiaries and distribution centers will
receive their invoices directly. If you would like to change this, please call 1.866.VELCADE
(1.866.835.2233), option 5.


State and local taxes may
apply in certain states and are the responsibility of the order placing  party.


Product and Pricing Information


	
  PRODUCT DESCRIPTION

  	
   

  	
  VIAL SIZE

  	
   

  	
  VIALS PER

  CARTON

  	
   

  	
  VIALS PER

  UNIT OF SALE

  	
   

  	
  PRICE (WAC) AS
  OF

  JANUARY 1, 2006

  
	
  VELCADE® (bortezomib) for Injection NDC # 63020-0049-01

  	
   

  	
  10 mL vials containing 3.5 mg of bortezomib

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  $1075.00

  



 


Payment
Term


All VELCADE® (bortezomib)
for Injection orders will receive terms of 2% 30 days, net 31days.


All remittances should be sent to the following address:


MillenniumDirectTM


12601 Collection Center
Drive


Chicago, IL 60693


Credit
Limits


Wholesaler/distributor
credit limits are set and determined by MillenniumDirectSM. If you have concerns about your credit limit please
call 1.866.VELCADE (1.866.835.2233), option 5.


Chargeback
Submission


All wholesalers will
purchase VELCADE at wholesale acquisition cost (WAC). All valid  chargebacks should be submitted via EDI
within 30 days of placing the qualifying order. If you need to set up EDI connectivity with
MillenniumDirectSM, please call 1.866.VELCADE (1.866.835.2233), option 5.



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Frequently Asked Questions (FAQs)






General






 


What is
MillenniumDirectSM?


MillenniumDirect is the
distribution channel for VELCADE® (bortezomib) for
Injection. It is a sole source
open access drop ship model.


What is Integrated Commercialization Services (ICS)’s
role in the distribution of  VELCADE® (bortezomib)
for Injection?


ICS will be the managing the
ordering, distribution, shipment, and monitoring of VELCADE  into the US oncology marketplace. They are
also responsible for accounts receivables on VELCADE orders.


What is a drop ship model?


Wholesalers and distributors
place orders on behalf of their customers and the product is then  shipped directly to the end user such as a
hospital or office-based practice.


What is a Ship-to customer?


Ship-to customers are
recipients of VELCADE. They are also referred to as end-customers,  and are generally hospital or office-based
practices.


What is a Bill-to customer?


Bill-to customers place
orders on behalf of the Ship-to customers. They are also invoiced by  MillenniumDirect for the product shipped.
Generally they are the wholesalers and distributors.


Ordering






 


How will end customers order VELCADE under
MillenniumDirectSM?


All end-customers, such as
hospitals or office-based practices, will order VELCADE through  their normal wholesaler or distributor
process.


How can wholesalers and distributors order VELCADE?


All wholesalers and
distributors must have a MillenniumDirect account to order VELCADE.  Ordering methods include Internet, Fax, Phone
and EDI.


If I am a distributor that would like to sell VELCADE
how can I purchase the product?


New distributors and
wholesalers can complete a business application found on  MillenniumDirect.net under the “New Account
Sign Up Section.” A copy of an applicable and valid license must accompany the application.


What is the order cut off time for same day
processing?


Orders received by 6:00 PM
CT are processed for same day shipping and will be delivered by  10:30 AM Local time the next day, excluding
major holidays. Friday orders are delivered on Monday mornings.


What if my end-customer needs VELCADE earlier than
next day 10:30 AM local time?


Expedited shipping can be
arranged by calling 866.VELCADE, option 5. There will be a small  surcharge on expedited shipments.



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Can I place an emergency order after 6:00 PM CT for
next day delivery?


Yes, emergency order can be
accommodated. There will be a surcharge on all emergency  orders.


Can VELCADE be shipped outside of the United States
through MillenniumDirectSM?


No. MillenniumDirectSM only ships to the United States and its territories.


How do I add a new Ship-To customer?


Complete the “New Ship-To
Form” found on MillenniumDirect.net under the “New Account  Sign Up Section” and send via fax or mail
with a copy of the applicable license to MillenniumDirect.


How can I track an order and receive delivery
confirmation?


Orders can be tracked
through MillenniumDirect.net by logging into the website.


Customer Service






 


What are the customer service hours?


Customer service
representatives are available to assist you between the hours of 7:30 AM
and 7:00 PM CT Monday through
Friday, excluding major holidays. Holiday hours are posted on MillenniumDirect.net


How will returns be handled?


VELCADE has a limited return
policy. Approved returns must be sent directly to  MillenniumDirectSM for credit. Please call 1.866.VELCADE (1.866.835.2233), option 5 with return questions.


Other






 


Who do customers contact for product complaints,
adverse drug experiences, or if they  need medical or any other
information on VELCADE?


Customers should call
1.866.VELCADE (1.866.835.2233) regarding such information and  select the appropriate option.


Where can customers obtain reimbursement information
on VELCADE?


Customers should call
1.866.VELCADE (1.866.835.2233) regarding such information and  select the appropriate option.



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