Exhibit
10.17


 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the Commission.


 


RXPEDITE

ACORDA MARKETING SERVICES AGREEMENT


 


This Marketing Services
Agreement (the “Agreement”) is made effective as of September 19, 2003
(the “Effective Date”), by and between Creative Healthcare Solutions, LLC, an
Ohio limited liability corporation with offices at 500 Olde Worthington Road,
Westerville, Ohio 43082 (“CHS”) and Acorda Therapeutics, Inc., a Delaware
corporation having its principal
place of business at 15 Skyline Drive, Hawthorne, New York 10532 (“Client”).


 


Background
Information


 


A.                         CHS is a subsidiary of inChord
Communications, Inc. (“inChord”) specializing in strategic consulting and
advertising services (through its “Palio” division).  CHS will serve as inChord’s lead contact in connection with this
Agreement with Client.  Certain of the
Services to be performed hereunder will be provided by other CHS affiliates,
including without limitation Blue Diesel, LLC (interactive applications and
website development); Y Brand Outlook, LLC (branding services); and Health
Process Management, LLC (data analytics).


 


B.                         inChord and Cardinal Health 401, Inc.
(“Cardinal Health”) have together developed the RxPedite Program, pursuant to
which they are able to provide pharmaceutical drug manufacturers with
comprehensive outsourced marketing communications, selling and distribution/manufacturing
capabilities to facilitate and enhance the commercialization of clients’
pharmaceutical products.


 


C.                         Client is currently developing a product
known as Fampridine SR, a therapy to improve neurological function in spinal
cord injuries (the “Product”), and wishes to outsource certain
commercialization services available under the RxPedite Program, as set forth
in this Agreement.


 


Statement
of Agreement


 


The parties hereby
acknowledge the accuracy of the Background Information and agree as follows:


 


§1.                               Appointment/Exclusivity.


 


(a)                                  CHS
will provide marketing communications services to Client with respect to the
Product as may be requested from time-to-time by Client and agreed to by CHS
(collectively, the “Services”), which may include strategic consulting,
advertising, promotion, contract marketing, market research, interactive
applications and website development, data analytics, branding, and
relationship marketing.  For clarity,
booking sales of the Product will not be included in the Services to be
provided by CHS hereunder, and Client will be solely responsible for booking
all sales of the Product.  Client hereby
appoints CHS  as the exclusive
“Agency of Record” for marketing communications services relating to the
Product and agrees that during the Term (as defined in Section 14(a)) it will
not grant any other person or entity


 


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marketing communications rights
to the Product anywhere in the United States; subject, however, to Section 1(b)
below.


 


(b)                                  The
parties acknowledge and agree that, notwithstanding any other provision of this
Agreement, Client may enter into one or more collaboration or partnership
agreements or other similar arrangements with third parties (exclusive of third
party marketing services organizations) during the Term with respect to the
development and commercialization of the Product (each, a “Partnering
Agreement”).  In any such event, Client
will exercise reasonable efforts to cause CHS to be selected as the vendor of
choice for all or substantially all Services with respect to the Product, to
the extent that such Services are outsourced. 
If CHS is selected as the vendor for all or any portion of such
Services, the parties will, if necessary, modify any then-current Workplans (as
defined in Section 3(a)) including the Budgets therein, to reflect the modified
Services as a result of such Partnering Agreement.  If, as a result of a Partnering Agreement and despite the exercise
by Client of reasonable efforts to cause CHS to be selected as the vendor of
choice, CHS is not selected to be the vendor of a substantial portion of the
Services with respect to the Product in the United States, then CHS will no
longer be the Agency of Record for Services relating to the Product, and either
party may terminate this Agreement in accordance with the provisions of
Sections 14(d) and 14(f).


 


§2.                               Services.


 


(a)                                  CHS
will, from time-to-time and/or upon request by Client during the Term, prepare
and provide to Client one or more proposed workplans (each, a “Proposed
Workplan”) outlining the specific Services that CHS proposes to perform on
Client’s behalf or that Client requests CHS to perform on its behalf.  Such Services may include, but are not
limited to, the following:  (i) developing
and submitting for Client’s approval advertising, marketing, and promotional
programs for the Product, (ii) after approval by Client, developing advertising
and communications materials for the Product for professional, trade, and
consumer print, broadcast, and other media, (iii) after approval by Client,
creating and preparing sales promotion material such as sales aids, detail
aids, point-of-sale, direct mail, leaflets, inserts, catalogs, brochures, sales
films, training films, sales manuals, interactive and on-line materials, (iv)
checking all media vehicles carrying out communications for the Product for
proper placement, reproduction, and rates, (v) purchasing all materials and
services necessary for the production of finished advertisements and commercials
as approved by Client, and (vi) providing design services including packaging,
trademarks, and corporate identity programs.


 


(b)                                  Each
Proposed Workplan provided to Client pursuant to Section 2(a) will include, at
a minimum, a detailed summary of the specific Services to be provided by CHS
and CHS’s good faith estimate of the anticipated fees and costs (a “Budget”)
associated with all projects (“Projects”) to be undertaken by CHS under such
Proposed Workplan.  Client may request
additional information to be included in a Proposed Workplan and CHS will use
all reasonable efforts to provide such additional information.  Each Proposed Workplan will be submitted for
Client’s approval under the procedures described in Section 3 below.


 


(c)                                  Following
approval by both parties of a Proposed Workplan for one or more Projects (as
provided in Section 3), CHS will, subject to Client’s direction and instruction
or any amendment of the approved Workplan in accordance with Section 7, perform
or


 


2

















 


coordinate the performance of
those Services that are included in such Workplan.  CHS will exercise reasonable efforts to perform the Services on a
timely basis and within the Budget, and Client will exercise reasonable efforts
to assist CHS in doing so by making available to CHS all information pertaining
to the Product that is necessary for CHS’s performance of such Services and
cooperating with CHS in expediting its review of all materials submitted by CHS
for Client’s approval.


 


(d)                                  During
the Term, CHS and those of its affiliates performing Services for Client agree
to refrain from providing Services for any product that competes against the
Product and has substantially the same indication as the Product, without first
obtaining Client’s written consent, which consent shall not be unreasonably
withheld.


 


§3.                               Client
Approval.


 


(a)                                  Each
Proposed Workplan submitted to Client by CHS in Section 2 is subject to the
review and written approval of Client prior to the time CHS or any of its
affiliates incur liability to third parties in connection with the Projects
contained in such Proposed Workplan. 
Once a Proposed Workplan is approved by both parties, such approved
workplan shall be referred to as a “Workplan,” and it shall govern the
performance for Client of the Services covered by such Workplan.  For clarity, neither CHS nor its affiliates
will perform any Services or incur any expenses with respect to such Services,
and Client will not be obligated to pay for any Services, except in accordance
with a Workplan that has been approved by Client.


 


(b)                                  All
drafts of any proposed journal advertisements, training materials, media copy,
advertisements or other promotional material used to promote the Product
(collectively, the “Promotional Material”) will be submitted to Client for
review at least two (2) weeks prior to publication or use, whenever
practicable, provided, however, that the parties understand and agree that such
two (2) week period will necessarily be shortened from time-to-time to reflect
special deadlines and circumstances not within the reasonable control of
CHS.  Client will be solely responsible
for reviewing and approving the content of all Promotional Material and related
Services prior to use of such Promotional Material and performance of related
Services to make certain that all content in such Promotional Material and any
and all related Services comply with all federal, state and local laws and all
applicable industry standards and practices generally applicable to CHS’s and
Client’s industry, including, without limitation, any applicable research
guidelines, ethics and standards established by the American Medical
Association, the Food and Drug Administration (“FDA”), the standards and
guidelines outlined in the PhRMA Code, the standards and guidelines outlined in
the Office of Inspector General (OIG) Guidance, and the Federal Food, Drug and
Cosmetic Act and the regulations promulgated pursuant thereto (collectively,
“Laws”).  Client hereby acknowledges
that CHS will not conduct a legal review of the content of Promotional Material
and/or related Services and that CHS is relying solely on Client to make
certain that the content of Promotional Material and related Services comply
with all Laws.  CHS will ensure that the
content of the final copy of Promotional Material and related Services is
identical to the draft content of such Promotional Material and related
Services as approved by Client.


 


(c)                                  Client
will have the right to make any editorial changes it desires prior to
publication or use, with any charge for such change to be consistent with the
Budget procedures


 


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Certain portions of this Exhibit have been omitted
pursuant to a request for confidentiality.


Such omitted portions, which are marked with brackets
[ ] and an asterisk *, have been separately filed with the Commission.


 


outlined in Section 3(d),
below; provided, however, that Client must notify CHS in writing of either its
approval or disapproval and/or required editing of Promotional Material as
promptly as practicable, but in no event less than forty-eight (48) hours prior
to the planned publication or use.


 


(d)                                  The
initial Budget for a specific Project included in a Workplan will necessarily include
fee and cost estimates based upon initial concepts and preliminary estimates,
and CHS will be authorized to commence work and incur expenses on that
particular Project based upon Client’s approval of the Workplan containing such
initial Budget and up to an amount not to exceed [* * *] of the fees
and costs in such approved Budget.  CHS
will submit a revised Budget to Client at any time during performance of a
Project if fees and costs for such Project are anticipated to exceed the
initial Budget by more than [* * *], and this revised estimate must
be approved by Client in writing before work on such Project continues.  Once final concepts for a Project are
approved and final fee and cost estimates can be obtained, CHS will submit a
final Budget for Client’s written approval if the initial Budget needs to be
increased by more than [* * *] as a result of such final cost
estimates.  CHS will use all reasonable
efforts to complete the Services within the approved Budget.  In the case where, despite such efforts,
cost estimates to complete the Services exceed the initial Budget by more than
[* * *], CHS agrees to negotiate with Client in good faith a revised
Budget that is acceptable to both parties. 
In any event, Client’s written approval is required prior to any
increase of the Budget for a Project by more than [* * *] from the
initial Budget and for any further increases thereafter.


 


§4.                               Joint
Commercialization Committee. 
Promptly following the Effective Date, a joint commercialization
committee (the “Committee”) will be formed consisting of an equal number of
representatives, such number to be mutually agreed by the parties, from each of
Client, CHS, and Cardinal Health.  Each
party may replace any of its representatives at any time, and from time to time,
by giving written notice to the other party. The Committee will be chaired by a
Client representative, and the Committee will meet at such locations as
reasonably determined by the chair to discuss and coordinate the overall
marketing and sales strategy for the Product, relevant Workplans and Budgets
therein associated with the Product, and any other relevant topics relating to
the commercialization of the Product. 
The Committee will convene at least four (4) times annually or more
frequently as the parties deem necessary and meetings may be held by audio or
video teleconference, with the consent of each party; provided that at least one (1) meeting per
calendar year shall be held in person. 
The parties agree that the purpose of the Committee is solely to provide
a forum for the parties to discuss, monitor and coordinate activities and
communications relating to the performance of the Services and provide
recommendations relating thereto to the parties.  The Committee does not have the authority to approve or modify
Workplans or Budgets, or to amend this Agreement.


 


§5.                               CHS
Compensation.  In consideration for
the Services that are rendered to Client under this Agreement, CHS will invoice
Client and Client will pay CHS as follows:


 


(a)                                  As
compensation for performance by CHS and its affiliates of the Services, Client
will pay a fee (the “Agency Fee”) for each Project as specified in the approved
Budget for such Project, whether relating to advertising and promotional,
strategic consulting, interactive applications and website development, data
analytics, branding, relationship


 


4

















 


marketing, or other similar
services.  Such Agency Fee for the
Services performed in a particular month will be determined as follows:


 


(i)                                    Total
fees for such Services shall be calculated based on the applicable CHS and its
affiliates’ rates as set forth in the applicable Budget;


 


(ii)                                Such
total fees then shall be reduced by the amount (if any) of the pre-determined
discount amount to which Client is entitled (any such discount, a “Discount
Amount”), where such Discount Amount will be determined as described in the
Discount Matrix attached as Exhibit A, and such discounted fees shall be the
“Agency Fee” for such Project for such month.


 


(b)                                  The
Agency Fee for each Project will be invoiced to Client by CHS on a monthly
basis promptly after the beginning of each month as specified in the approved
Budget, and Client will pay each such invoice within thirty (30) days of
receipt thereof.  Each such invoice will
specify with reasonable detail all the charges for Services, and the basis for
any Discount Amount used in arriving at the Agency Fee.


 


(c)                                  All
Discount Amounts actually allowed will be aggregated and, if applicable, paid
to CHS by Client in accordance with the terms and conditions contained in the
Discount Payment Matrix attached as Exhibit B.


 


(d)                                  Client
will reimburse CHS for actual, verifiable costs incurred for obtaining from
third parties any printing, photography, market research, selling aids, direct
mail, reference material, color graphic reproductions, exhibit panels,
honoraria, conference/meeting expenses and other products, services and
supplies purchased by CHS on behalf of Client for a Project under this
Agreement (“Client Reimbursable Expenses”) plus CHS’ standard mark-up of 4%;
provided, however, that the aggregate costs for such Client Reimbursable
Expenses are included in the Budget of the relevant Workplan approved in
advance by Client and is subject to the provisions of Section 3(d) with respect
to any increase in such costs.  Fifty
percent (50%) of the estimated Client Reimbursable Expenses for each Workplan
(as set forth in the applicable Budget) will be invoiced by CHS upon Client’s
approval of the Workplan, and the balance of the Client Reimbursable Expenses
will be invoiced on a monthly basis after such initial advance payment has been
fully credited against actual costs incurred (as shown by invoices provided and
credits shown), as such expenses are incurred by CHS, or as otherwise agreed to
by the Parties as specified in the Budget. 
Client will pay each such invoice within thirty (30) days of receipt
thereof.


 


(e)                                  Client
will reimburse CHS for its reasonable, verifiable travel expenses (including,
without limitation, transportation, lodging and meals), fax, photocopying,
telephone, overnight or other delivery, postage, shipping and other expenses
associated with the performance of Services under this Agreement
(“Out-of-Pocket Expenses”), without any CHS mark-up.  An estimate of the Out-of-Pocket Expenses for each Project shall
be included in the Budget of the relevant Workplan approved in advance by
Client and is subject to the provisions of Section 3(d) with respect to any
increase in such expenses. 
Out-of-Pocket Expenses will be invoiced by CHS on a monthly basis, as
incurred, and Client will pay each such invoice within thirty (30) days of
receipt thereof.


 


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(f)                                    When
CHS contracts with broadcast or print media for Services performed under this
Agreement (“Media Buys”), CHS will, wherever practicable, contract on behalf of
Client in a format substantially similar to that promulgated by the American
Association of Advertising Agencies (“AAAA”). 
CHS will use all reasonable efforts to guard against loss to Client
through failure of media suppliers to properly execute their commitments.  However, notwithstanding anything to the
contrary contained elsewhere in this Agreement, CHS will not be responsible for
any failure on the part of media suppliers to perform.  Estimated costs for Media Buys will be
included in the Budget of the relevant Workplan, subject to CHS’s standard
mark-up,  and will be invoiced by
CHS upon issuance of the insertion order. 
Client will pay each such invoice for Media Buys within thirty (30) days
of receipt thereof. For clarity, CHS will not place any advertising in any
media for Client without Client’s prior written approval.


 


(g)                                 Sales,
use and other taxes will be included in the Budget and reimbursed by Client in
a similar manner to other expenses associated with each Project; provided,
however, that CHS will be responsible for all federal, state and local taxes
imposed on CHS’s income or in connection with the employment of CHS’s full or
part-time employees.


 


§6.                               Payment
Terms.  CHS will submit invoices to
Client on a monthly basis or as otherwise agreed by the parties in
writing.  Payment terms will be net
thirty (30) days from the date of the receipt, with interest accruing on any
late payment at the rate of one and one-half percent (1.5%) per month until
paid.  CHS will provide, upon the
request of Client, appropriate supporting detail to allocate expenses by
Project and the specific activities undertaken in such Project.  All payments due under Section 5 will be
made payable to:  Creative Healthcare
Solutions, LLC  and mailed to the
address as set forth for notices in Section 19, unless otherwise specified by
CHS in writing.  Client and CHS will
meet quarterly to review projected fees and costs compared to actual fees and
costs on all Projects, and appropriate adjustments will be made to Workplans as
necessary from time to time to reflect mutually approved changes in the scope
of the work to be performed.


 


§7.                               Amending
Workplans.  Subject to the terms of
this Section 7, Client reserves the right to modify or cancel any previously
approved Workplan.   In such event, CHS
will promptly take all reasonable steps necessary or appropriate to carry out
Client’s instructions; provided, however, that Client will continue to be
responsible for paying CHS for (a) all work performed and expenses incurred
prior to CHS’s receipt of notification of such change, provided that such work
and expenses were incurred by CHS on Client’s behalf in accordance with the relevant
Workplan approved by Client, (b) all non-cancelable commitments incurred by CHS
prior to its receipt of notification of such change, provided that such
commitments were incurred by CHS on Client’s behalf in accordance with the
relevant Workplan approved by Client, (c) all expenses incurred by CHS in
carrying out Client’s revised instructions, and (d) any other cancellation or
other similar fees specifically agreed to by the parties in a Workplan, if any.
Notwithstanding the foregoing, Client may not modify or cancel Projects in a
fashion that would be inconsistent with Agency’s role as the exclusive “Agency
of Record” under Section 1.


 


§8.                               Ownership
of Technology; Work Made For Hire. 
Client will maintain ownership and maintenance of the NDA, all clinical/scientific
data and any other information related to the Product.


 


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(a)                                  Work
Product.  CHS agrees and
acknowledges that, unless otherwise agreed to by the parties in a Workplan,
Client will own all right, title and interest in and to all ideas, artwork,
illustrations, audiovisual works, audio recordings, images, photographs, video,
graphics, multimedia works, on-line products, sounds, text, notes, sketches,
drawings, reports, inventions and Promotional Material, whether patentable or
copyrightable, or other copyrightable works conceived or created by CHS or
CHS’s affiliates or third party subcontractors in the course of performing the
Services pursuant to this Agreement and which are accepted and paid for by
Client (collectively, the “Work Product”). 
Such Work Product will be deemed “works made for hire,” and CHS hereby
assigns and shall assign to Client, and shall cause its affiliates and
subcontractors (as applicable) to assign to Client, all right, title and
interest in and to such Work Product and all intellectual property rights
related thereto.  If Work Product is
lost, damaged, or destroyed while in CHS’s custody or control, CHS will be
liable to Client for the replacement cost of such Work Product.  Upon Client’s request at any time during the
Term or thereafter, CHS will promptly transfer all Work Product to Client.


 


(b)                                  Brand
Features.  Subject to retained third
party rights disclosed to Client in advance in accordance with Section 9, all
trademark(s), trade name(s), logo(s), slogan(s), and advertising plan(s) that
are created by CHS and/or its affiliates for Client and which are accepted and
paid for by Client under this Agreement (the “Brand Features”) will be the
property of Client and regarded as “works made for hire.” CHS will not adopt,
suggest or recommend the use of any Promotional Material or Brand Feature of
which CHS knows, or in the exercise of reasonable diligence, should know, is
identical to or confusingly similar to that being used by a third party.  CHS hereby assigns to Client, and shall
cause its affiliates and subcontractors (as applicable) to assign to Client,
all of its rights, title and interest to such items, together with all of the goodwill
associated therewith, subject only to reserved third party rights.


 


(c)                                  Further
Acts.  CHS and its affiliates shall
cooperate with Client or its designee(s), both during and after the Term, to
execute such documents and take such other actions as Client deems necessary
for Client to obtain ownership and to apply for, secure, and maintain
copyright, trademark or other proprietary protection of Work Product and Brand
Features in the United States and/or worldwide.  CHS will not be responsible for initiating any such application,
but will cooperate with Client as reasonably requested.  Client will pay or reimburse CHS for any
out-of-pocket expenses associated with such cooperation.  If Client is unable  for any reason to secure CHS’s signature to
any document required to apply for or execute any copyright, trademark or other
applications with respect to any Work Product or Brand Features, CHS hereby
irrevocably designates and appoints Client and its duly authorized officers and
agents as its agents and attorneys in fact to act for and on CHS’s behalf to
execute and file any such application and to do all other lawfully permitted
acts to further the issuance of copyrights, trademarks or other rights thereon
with the same legal force and effect as if executed by CHS.


 


(d)                                  CHS
Proprietary Material.  Project
tracking software, algorithms, and other intellectual property owned by CHS
and/or one or more CHS affiliates and used by Client in connection with the
Services (“CHS Proprietary Material”) will remain the sole property of CHS at
all times.  Client agrees to discontinue
the use and return to CHS all CHS Proprietary Material promptly following
termination of this Agreement.


 


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§9.                               Third
Party Approvals.


 


(a)                                  CHS
will be responsible for obtaining appropriate consents, authorizations and
approvals from third parties for use of approved Promotional Material prepared
by CHS in connection with the Services; provided, however, that Client will
maintain its own medical affairs personnel (including physicians and staff) to
review and support the marketing and sales efforts (including Promotional
Material) on behalf of the Product and will be responsible for obtaining and
providing all appropriate consents, authorizations and approvals in connection
with materials provided to CHS for inclusion in the Promotional Materials and
for scientific or medical papers or scientific consultation required in
connection with the Promotional Material and the Services rendered by CHS.  Client will have sole and exclusive authority
for managing all regulatory affairs associated with the Product including, but
not limited to: (i) all necessary government filings and approvals for the
Product; (ii) adverse event reporting to the FDA; (iii) product recalls; (iv)
all clinical development associated with the Product; and (v) communications
with regulatory authorities.  Client
will promptly communicate to CHS all regulatory and other information relevant
to CHS’s performance of Services in connection with the Product.


 


(b)                                  Certain
Promotional Material may contain the intellectual property of third parties
that CHS has the right to use pursuant to a license granted to CHS (or its
affiliates), or other arrangement between a third party and CHS (or its
affiliates).  Such license or other
arrangement between a third party and CHS (or its affiliates) may permit Client
to use such intellectual property only in connection with a specific Project or
campaign, and would require additional payments for any different or extended
use by Client.  CHS will obtain approval
from the relevant third party as required under the relevant license or
arrangement for use of such third party intellectual property in specific
Projects for Client.  CHS will notify
Client prior to use of any such third party intellectual property in a specific
Project of any material conditions or limitations relating to such use,
including but not limited to any conditions or limitations which, if breached,
will obligate Client to pay additional fees or charges.  Client will be solely responsible for any
fees or other charges associated with its different or extended use of
intellectual property so licensed from a third party in breach of the
applicable conditions or limitations of such use; provided that Client will not
be responsible for such fees or charges if CHS fails to notify Client in
writing in advance of its use of any third party intellectual property and the
conditions and limitations related thereto. 
CHS makes no representations with regard to use of Promotional Material
outside of the United States; however, CHS will use all reasonable efforts to
obtain such rights for Client if requested to do so.


 


§10.                        Right
of First Negotiation.


 


(a)                                  Product
Related Compounds. If Client controls or materially influences decisions regarding
use of Services and is not restricted by a Partnering Agreement, Client agrees
during the Term that CHS will be designated as the Agency of Record and perform
those Services required by Client with respect to any future indications for
the Product.


 


(b)                                  Other
Compounds.  If Client controls or
materially influences decisions regarding use of Services with respect to a
molecule, compound or product described at the end of this Section 10(b), and
is not restricted by a Partnering Agreement with respect to such


 


8

















 


molecule, compound or product,
Client agrees during the Term to provide CHS with an exclusive right of
negotiation for a period of sixty (60) days following delivery to CHS of a
request for proposal and related background materials (“RFP”) to provide
Services, provided that such Services are necessary and will be
outsourced.  The molecules, compounds or
products that are subject of the foregoing rights are:  (i) products resulting from Client’s other
molecules or compounds in development, (ii) products resulting from molecules
or compounds which Client purchases, licenses or otherwise assumes rights from
a third party, or (iii) any pharmaceutical human therapeutic product that
Client purchases, licenses or otherwise assumes commercialization rights from a
third party.


 


§11.                        Indemnification.  Each party will indemnify the other as
follows:


 


(a)                                  CHS
will indemnify, defend and hold Client and its officers, directors, agents,
employees and affiliates (collectively, the “Client Group”) harmless from and
against any liabilities, damages, losses or expenses, including reasonable
attorneys’ fees, any of them may sustain or incur as a result of any claim,
suit or proceeding (“Claim”) made, brought or threatened by third parties and
based upon or resulting from (i) CHS’s or its affiliates’ negligence, willful
misconduct or breach of this Agreement, including but not limited to, CHS’s
breach of its representations and warranties under this Agreement and (ii) any
Work Product or Brand Features that are alleged to constitute plagiarism, idea
misappropriation, or that infringe third party intellectual property
rights.  CHS’s obligations under this
section include all time charges and expenses (including reasonable attorneys’
fees) incurred in connection with any subpoena, discovery demand or other
directive having the force of law or any governmental inquiry served upon
Client that relates to CHS or its business. 
The provisions of this paragraph will not apply to a Claim to the extent
that such Claim arises as a result of the negligence or willful misconduct of
Client or any member of the Client Group or Client’s breach of this Agreement.


 


(b)                                  Client
will indemnify, defend and hold CHS and its officers, directors, agents,
employees and affiliates (collectively, the CHS Group”) harmless from and
against any Claim made, brought or threatened by third parties and based upon
or resulting from (i) Client’s or its affiliates’ negligence, willful
misconduct or breach of this Agreement, including but not limited to, Client’s
breach of its representations and warranties under this Agreement; (ii) any
product liability or other Claim based upon the use or efficacy of any Product;
(iii) content of Promotional Material that has been provided by Client or
approved by Client in advance of publication; and (iv) any use of Promotional
Material by Client outside the scope of any third party license of which CHS
has notified Client in accordance with Section 9(b).  Client’s obligations under this section include all time charges
and expenses (including reasonable attorneys’ fees) incurred in connection with
any subpoena, discovery demand or other directive having the force of law or
any governmental inquiry served upon CHS that relates to Client or its
business.  The provisions of this
paragraph will not apply to a Claim to the extent such Claim arises as a result
of the negligence or willful misconduct of CHS or any member of the CHS Group
or any CHS Group member’s breach of this Agreement.


 


9

















 


(c)                                  Each
party’s agreement to indemnify, defend and hold the other party harmless is
conditioned on the indemnified party (i) providing prompt written notice to the
indemnifying party of any Claim subject to indemnification under this Section
11; (ii) permitting the indemnifying party to assume full responsibility to
investigate, prepare for and defend against any such Claim, (iii) assisting the
indemnifying party, at the indemnifying party’s reasonable expense, in the
investigation of, preparation for and defense of any Claim, and (iv) not
compromising or settling such Claim without the indemnifying party’s written
consent.


 


§12.                        Confidential
Information.  Neither party will,
during the Term and for a period of five (5) years thereafter, without the
other party’s prior written consent, disclose to any third party any of the
other party’s Confidential Information, except that either party may disclose
the other party’s Confidential Information to its affiliates, Cardinal Health
and Cardinal Health affiliates solely as necessary for their performance of the
Services, provided that the party conveying the other party’s Confidential
Information will inform each recipient of the confidential nature of such information
and will use all reasonable efforts to cause each recipient to receive and hold
such information in accordance with the terms of this Agreement.  Each party will, during the Term and for a
period of five (5) years thereafter, keep the other party’s Confidential
Information secret and confidential, will use reasonable efforts to cause its
affiliates, employees, representatives and agents to keep such Confidential
Information secret and confidential, and will take reasonable precautions to
prevent any use or disclosure of such Confidential Information except in the
performance of the Services in accordance with the terms of this Agreement.


 


(a)                                  For
purposes of this Agreement, “Confidential Information” means information
disclosed hereunder by, or on behalf of, CHS or Client to the other party,
whether of a technical, business or other nature, including but not limited to
non-public information which relates to CHS’s (including its affiliates) or
Client’s trade secrets, product or service offerings, proprietary rights or
business affairs and identified as “confidential.”


 


(b)                                  Exceptions
to Confidential Information. 
Confidential Information does not include any information that, as
evidenced by competent written proof: (i) was known to the receiving party
prior to its disclosure by the disclosing party; (ii) is lawfully obtained by
the receiving party from a third party, as a matter of right and without
restriction on disclosure; (iii) is disclosed in public literature or becomes
generally available to the public through no violation of this Agreement by the
receiving party; or (iv) was independently developed or obtained by the
receiving party without violation of this Agreement.


 


(c)                                  Permitted
Disclosures. Notwithstanding the foregoing, a party may disclose
Confidential Information of the other party to third parties to the extent such
disclosure is required by order of a court, government agency or the like
having competent jurisdiction; provided that, in the event such
information is required to be disclosed pursuant to this Section 12(c), the
party required to make such disclosure will promptly notify the other party
prior to such disclosure, will disclose only what is reasonably necessary to
comply with such order, and will use reasonable efforts to cooperate with such
other party to allow assertion of whatever exclusions, exemptions or
confidential treatment that may be available to it under applicable law or
regulation.


 


10

















 


(d)                                  It
is understood and agreed that CHS may list Client as one of its RxPedite
clients when furnishing proposals to other prospective clients or in client
listings in trade publications and directories.


 


§13.                        Force
Majeure.  Neither party will be
liable to the other for failure to perform when and as specified in this
Agreement (exclusive of payment obligations) if such failure to perform is
caused by war, fire, flood, strike, labor dispute, public disaster, accident,
serious illness, act of God, act of terrorism, act of governmental authority
(including rule or regulation), or other similar contingencies (a “Force
Majeure”) beyond the reasonable control of the non-performing party and which
materially interferes with such party’s ability to perform its obligations
hereunder.  In the event of such a Force
Majeure, the party so affected will be excused from performance hereunder for
the period of time attributable to the Force Majeure; provided that such party
uses and continues to use all reasonable efforts to overcome such Force Majeure.


 


§14.                        Termination.


 


(a)                                  The
term of this Agreement will commence on the Effective Date and continue for a
period equal to the longer of: (i) five (5) years, or (ii) eighteen (18) months
following the launch date of the Product for spinal cord indication, unless
terminated earlier pursuant to the termination provisions below, or extended by
written agreement of the parties.  As
used herein, “Term” will mean the term of this Agreement as specified above.


 


(b)                                  Either
party will have the right to effect an early termination of this Agreement if
the other party breaches any material obligation of this Agreement and fails to
cure such breach as provided herein. 
Following a material breach, the non-breaching party will provide the
breaching party with written notice of the specific reason or reasons for the
non-breaching party’s intention to terminate the Agreement early, and will
provide the breaching party with (i) sixty (60) days to correct any
non-performance or breach other than non-payment, or (ii) thirty (30) days to
correct such breach in the case of non-payment.  If the breaching party fails to correct the specified
non-performance or breach within the time period specified in the foregoing
sentence (or, in the case of a breach other than non-payment, if such breach is
not reasonably capable of cure within sixty (60) days, the breaching party
fails to commence cure of the specified non-performance within sixty (60) days
and diligently pursue completion of the cure thereafter), then the
non-breaching party may immediately effect an early termination of this
Agreement upon written notice to the breaching party.


 


(c)                                  Either
party may terminate this Agreement effective upon written notice to the other
party, if the other party becomes insolvent or admits in writing its inability
to pay its debts as they become due, files a petition for bankruptcy, makes an
assignment for the benefit of its creditors or has a receiver, trustee or other
court officer appointed for its properties or assets.


 


(d)                                  Either
party may terminate this Agreement under the circumstances described in Section
1(b) upon sixty (60) days prior written notice to the other party.


 


(e)                                  Upon
termination of this Agreement for any reason, CHS will cease work on all
Projects and will give to Client a written report on the status of all  Services. 
Each party


 


11

















 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


will cooperate with the other
and make all reasonable efforts to facilitate a smooth and efficient transition
of all pending Projects to Client or a successor agency designated by
Client.  Client will promptly pay CHS
for all work performed and expenses incurred prior to the effective date of
termination of this Agreement and for all non-cancelable commitments incurred
by CHS prior to such time.  Any funds
previously paid to CHS by Client which are in excess of compensation and/or
expenses to which CHS is entitled through the termination of this Agreement
will be promptly returned to Client.


 


(f)                                    Upon
termination of this Agreement pursuant to Section 14(d), Client will pay to CHS
the following amounts:  (i) if such
termination is effected by Client prior to Product launch or within six (6)
months thereafter, then the sum of (1) the Aggregate Discount Amounts (as such
term is defined in Exhibit A) actually given by CHS, and (2) a premium payment
in the amount of [***] of the Aggregate Discount Amounts actually given by CHS
and (ii) if such termination is effected by Client at any time more than six
(6) months after the date of Product launch, then the sum of (1) the Aggregate
Discount Amounts actually given by CHS and not already repaid in accordance
with the Repayment Rate set forth in Exhibit B and (2) a premium payment in the
amount of [***] of the Aggregate Discount Amounts actually given by CHS.  Client will pay the total amount due under
this Section 14(f) in four (4) equal quarterly installments, the first of which
is due on the first day of the calendar quarter immediately following the
effective date of termination under Section 14(d).


 


§15.                        Records
and Audit.  For a period of two (2)
years following the termination of this Agreement, each party will maintain
records, in commercially reasonable form, detail, and accuracy, relating to the
Services, Product revenues, and other information reasonably relevant to the
calculation of the Agency Fees and Discount Amounts.  During the Term and for a period of two (2) years thereafter,
each party agrees that it will provide relevant information and access to
relevant records to an independent third party accountant upon reasonable prior
notice and during normal business hours for the purpose of inspection,
examination and audit.  All examinations
of records will take place at the site at which the records are regularly kept
and will be at the examining party’s sole expense.


 


§16.                        Limitation
of Liability.  IN NO EVENT WILL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING BUT NOT LIMITED TO
DAMAGES FOR INDIRECT LOSS OF PROFITS, LOSS OF BUSINESS REPUTATION OR THE LIKE)
ARISING DIRECTLY OR INDIRECTLY OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.


 


§17.                        Insurance.


 


(a)                                  CHS.  CHS will, at its own cost and expense,
obtain and maintain in full force and effect the following insurance during the
Term: (i) Commercial General Liability insurance with per-occurrence and
general aggregate limits of not less than one million dollars ($1,000,000);
(ii) Workers’ Compensation and Employer’s Liability Insurance with statutory
limits for Workers’ Compensation and Employer’s Liability insurance limits of
not less than one million dollars ($1,000,000); (iii) Professional Services
Errors & Omissions Liability Insurance with per claim and aggregate limits
of not less than ten million dollars ($10,000,000).  In the


 


12

















 


event that any of the required
policies of insurance are written on a claims made basis, then such policies
will be maintained during the entire Term and for a period of not less than
three (3) years following the termination or expiration of this Agreement.  CHS will obtain a waiver from any insurance
carrier with whom CHS carries Workers’ Compensation insurance releasing its
subrogation rights against Client. 
Client will be named as an additional insured under the Commercial
General Liability insurance policies. 
CHS will furnish certificates of insurance for all of the above noted
policies and required additional insured status to Client as soon as
practicable after the Effective Date of the Agreement and upon renewal of any
such policies.  Each insurance policy
that is required under this Section will be obtained from an insurance carrier
with an A.M. Best rating of at least A- VII.


 


(b)                                  Client
Insurance.  Client will, at its own cost
and expense, obtain and maintain in full force and effect the following
insurance during the Term: (i) Products and Completed Operations Liability
Insurance with per-occurrence and general aggregate limits of not less than ten
million dollars ($10,000,000); and (ii) Workers’ Compensation and Employer’s
Liability Insurance with statutory limits for Workers’ Compensation and
Employer’s Liability insurance limits of not less than one million dollars
($1,000,000).  In the event that any of
the required policies of insurance are written on a claims made basis, then
such policies will be maintained during the entire Term and for a period of not
less than three (3) years following the termination or expiration of this
Agreement.  Client will obtain a waiver
from any insurance carrier with whom Client carries Workers’ Compensation
insurance releasing its subrogation rights against CHS.  CHS will be named as additional insureds
under the Products and Completed Operations Liability insurance policies.  Client will furnish certificates of
insurance for all of the above noted policies and required additional insured
status to CHS as soon as practicable after the Effective Date of the Agreement
and upon renewal of any such policies. 
Each insurance policy that is required under this Section will be obtained
from an insurance carrier with an A.M. Best rating of at least A- VII.


 


§18.                        Representations
and Warranties.


 


(a)                                  Mutual
Representations and Warranties. 
Each party hereby represents and warrants that:


 


(i)                                    such
party is duly organized and validly existing under the laws of the state of its
organization and has full corporate power and authority to enter into this
Agreement and to carry out the provisions hereof;


 


(ii)                                such
party is duly authorized to execute and deliver this Agreement and to perform
its obligations hereunder;


 


(iii)                            this
Agreement is a legal and valid obligation binding upon such party and
enforceable in accordance with its terms;


 


(iv)                               the
execution, delivery and performance of this Agreement by such party does not
conflict with any agreement, instrument or understanding, oral or written, to
which it is a party or by which it may be bound; and


 


13

















 


(v)                                   such
party will perform its obligations herein in conformance with applicable
federal, state and local laws and regulations including, but not limited to,
the regulations and guidelines of the Food, Drug and Cosmetic Act.


 


(b)                                  CHS
Representations and Warranties.  
CHS hereby represents and warrants that:


 


(i)                                    all
Work Product and Brand Features will be original works of CHS, its affiliates
or its third party subcontractors;


 


(ii)                                CHS
and its affiliates will obtain all rights and licenses to any toolsets or other
software embedded in Work Product, which rights shall extend to Client (subject
to Section 9(b));


 


(iii)                            CHS
and its affiliates will not create Work Product or Brand Features that CHS
knows or reasonably should have known, infringes the intellectual property
rights of a third party;


 


(iv)                               CHS
and its affiliates will not grant, directly or indirectly, any rights or
interest to third parties whatsoever in Work Product or Brand Features without
the prior written approval of Client;


 


(v)                                   CHS
and its affiliates (1) are not currently involved in any litigation, and is
unaware of any pending litigation proceedings, relating to its role in the
provision of marketing communications services for any third party with respect
to a pharmaceutical product; and (2) have not received any warnings from the
FDA (or any regulatory body in a country other than the United States) relating
to services it has provided to third parties with respect to a pharmaceutical
product; and


 


(vi) CHS and its
affiliates will not employ, contract with or retain any person in any capacity
to perform Services under this Agreement if such a person is debarred by the
FDA under 21 U.S.C. § 335(a) or disqualified as described in 21 C.F.R.
§812.119.


 


§19.                        Notice.  All notices required or permitted to be
given under this Agreement must be in writing and will be addressed to the appropriate
party at the address specified below or 
such other address as may be specified by a party in writing in
accordance with this Section 19, and will be deemed to have been duly given (a)
when received, if hand-delivered or sent by a reputable overnight courier
service, (b) five (5) business days after mailing, if mailed by first-class
certified or registered mail, postage prepaid, return receipt requested, or (c)
when received as evidenced by confirmation of transmission, if sent by
facsimile, provided that the sender calls and notifies the recipient prior to
sending such facsimile.


 


Creative Healthcare
Solutions, LLC

500 Olde Worthington Road

Westerville, Ohio 43082-8913

Attention: Chief Financial Officer


 


14

















 


Tel (614) 543-6471

Fax (614) 848-3477


 


Acorda Therapeutics, Inc.

15 Skyline Drive

Hawthorne, NY 10532

Attention: Director of Contracts and Grants

Tel (914) 347-4300

Fax (914) 347-4560


 


§20.                        Complete
Agreement.  This Agreement,
including the exhibits attached hereto and each Workplan, contain the entire
agreement between the parties and supersede all prior or contemporaneous
discussions, negotiations, representations, or agreements relating to the
subject matter herein.  No changes to
this Agreement will be made or be binding on any party unless made in writing
and signed by an authorized representative of each party to this Agreement. If
and to the extent there are inconsistencies between this Agreement and any one
or more Workplans, the terms of this Agreement shall govern.


 


§21.                        Alternate
Dispute Resolution.  If a dispute,
controversy or disagreement (“Dispute”) arises between the parties in
connection with this Agreement, then the Dispute will be presented to the
respective designated executives of CHS and Client for their consideration and
resolution.  If such executives cannot
reach a resolution of the Dispute within forty-five (45) days of such referral,
then such Dispute will be resolved by binding Alternative Dispute Resolution in
accordance with the then-existing commercial arbitration rules of The CPR
Institute for Dispute Resolution (“CPR”), 366 Madison Avenue, New York, NY
10017.  Arbitration will be conducted in
New York, New York.


 


§22.                        Jurisdiction.  This Agreement will be governed by the laws
of the State of New York without regard to conflicts of laws principles.


 


§23.                        No
Benefit to Others.  The
representations, warranties, covenants and agreements contained in this
Agreement are for the sole benefit of the parties hereto and their affiliates,
successors and assigns, and they shall not be construed as conferring any
rights on any other persons.


 


§24.                        Severability.  Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.  To the extent legally permissible, the
parties shall use good faith efforts to agree to replace any invalid or
unenforceable provision of this Agreement with a valid provision that shall
implement as much as permitted the commercial intent of the invalid or
unenforceable provision.


 


§25.                        Subcontractors.  CHS will be permitted to enter into
subcontracts for the provision of portions of the Services to be supplied under
this Agreement with the prior written approval by Client (subject to Section 28,
and with such approval not to be unreasonably


 


15

















 


withheld), provided that such
right to subcontract will not remove or limit CHS’s duties, rights,
obligations, or liabilities to Client under this Agreement.  Any agreements entered into by CHS with
third party subcontractors for the performance of Services under this Agreement
shall, at a minimum, provide for ownership and allocation of intellectual
property rights with respect to Work Product and Brand Features and for
obligations of confidentiality and non-use of Confidential Information that are
consistent with the intent and terms of this Agreement.   CHS will ensure that each subcontractor who
has contributed to Work Product or Brand Features will execute an assignment to
CHS of all of such subcontractor’s right, title and interest in and to such
Work Product or Brand Features to enable compliance by CHS with the assignment
obligations of Section 8 with respect thereto.


 


§26.                        Successors
and Assigns.  Neither party will be
permitted to assign or transfer its rights, duties or obligations under this
Agreement without the prior written consent of the other party, which consent
will not be unreasonably withheld.  Notwithstanding
the foregoing, upon the occurrence of a sale of the Product, merger,
consolidation or other similar corporate transaction affecting either party (a
“Special Event”), the benefits and obligations of this Agreement shall
automatically pass to the successor entity without prior written consent of the
other party; provided, however, that if, following a Special Event affecting
Client, (a)CHS’s continued performance of Services would result in an
impermissible conflict, as defined in Section 2(d), with one or more of its
other clients, CHS may effect an early termination of this Agreement without
penalty upon delivery to Client  of
written notice specifying in detail such impermissible 
 conflict, in which case, the provisions
of Section 14(e) will apply, or (b) Client may terminate this Agreement in
accordance with the provisions of Sections 14(d) and 14(f).


 


§27.                        Publicity.  Except as provided in Section 12, neither
party will make any press release or other public disclosure regarding this
Agreement or the transactions contemplated hereby without the other party’s
express prior written consent, except as required under applicable law or by
any governmental agency, in which case the party required to make the press
release or public disclosure will use commercially reasonable efforts to obtain
the approval of the other party as to the form, nature and extent of the press
release or public disclosure prior to issuing the press release or making the
public disclosure.


 


§28.                        Performance
by Affiliates.  CHS may have certain
of its affiliates perform certain Services on its behalf, and CHS hereby
covenants that its affiliates, including but not limited to, Blue Diesel, LLC,
Y Brand Outlook, LLC, and Health Process Management, LLC, which will be
providing certain of the Services under this Agreement are bound by this
Agreement and guarantees the performance by such CHS affiliates of obligations
assigned to CHS under this Agreement, and shall cause such CHS affiliates to
comply with the terms and conditions of this Agreement in connection with such
performance.  Any breach by such
affiliates of any of CHS’s obligations under this Agreement shall be deemed a
breach by CHS, and Client may proceed directly against CHS without any
obligation to first proceed against such affiliates.


 


§29.                        No
Implied Rights or Licenses.  The
parties agree that neither party transfers to the other party by operation of
this Agreement any patent right, copyright right, trademark right or other
proprietary right (including any right with respect to the Product), except as
specifically provided herein.


 


16

















 


§30.                        Survival.  Sections 8, 11 (as to any Claims arising
from the parties’ performance during the Term), 12, 14(e), 14(f), 15, 16, 21,
22, 26, 28 and 30 shall survive termination of this Agreement.


 


§31.                        Miscellaneous.


 


(a)                                  This
Agreement may be executed in two (2) or more counterparts, each of which shall
be binding as of the date first written above, and all of which shall
constitute one and the same instrument. 
Each such copy shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.


 


(b)                                  CHS
is retained by Client only for the purposes and to the extent provided for
under this Agreement, and CHS will for all purposes under this Agreement be
deemed an independent contractor and not an employee, partner or joint venturer
with Client or Cardinal Health.


 


(c)                                  No
covenant or condition of this Agreement will be waived except by written consent
of Client and CHS. The omission, or delay, by either party at any time to
enforce any right or remedy reserved to it, or to require performance of any of
the terms, covenants or provisions hereof, by the other party, shall not be a
waiver of any such right or remedy to which the party is entitled.  Any waiver by a party of the breach by the
other party of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either party.


 


[Remainder
of page intentionally left blank.]


 


17

















 


IN WITNESS
WHEREOF, the parties to this Agreement, each by a duly authorized
representative, have executed this Agreement as of the Effective Date.


 


	
  CHS:

  	
   

  	
  CLIENT:

  
	
  Creative Healthcare
  Solutions, LLC

  	
   

  	
  Acorda Therapeutics, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
											



 


18

















 


Exhibit
A


 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


DISCOUNT MATRIX


 


•                  In determining the Agency Fees for Services
performed during “Period 1” of the Agreement beginning as of the Effective Date
and continuing through the First Milestone, Client will be entitled to a
Discount Amount of [**] of the
total amount charged for such Services in accordance with the applicable
Budget.  As used herein, the First
Milestone will be the completion of the Product’s Phase III pivotal Trial 1 for
spinal cord injuries (“SCI”).  As used
in this Exhibit A, the term “completion” of a clinical trial means completion
of conducting the trial, analyzing all data and results of such trial, and
preparing the final and complete report of such analyzed data.  Period
1 is currently estimated to include the period from the Effective Date through [***].


 


•                  In determining the Agency Fees for Services
performed during “Period 2” of the Agreement beginning as of the end of Period
1 and continuing through the Second Milestone, Client will be entitled to a
Discount Amount within the range of [***] of the total amount charged for such Services in accordance with the
applicable Budget, where the actual percentage within this range will be based
on the study findings relative to those identified parameters of promotional
success for the Product as described in the Target Product Profile (“TPP”)
attached as Exhibit C.  As used herein,
the Second Milestone will be the completion of the Product’s Phase III pivotal
Trial 2 for SCI.  Period 2 is currently
estimated to include the period from [***].


 


•                  In determining the Agency Fees for Services
performed during “Period 3” of the Agreement beginning as of the end of Period
2 and continuing through the Third Milestone, Client will be entitled to a
Discount Amount within the range of [***] of the total amount charged for such Services in accordance with the
applicable Budget, where the actual percentage within this range will be based
on the TPP study findings as described in Exhibit C.  As used herein, the Third Milestone will be the NDA submission
for SCI. Period 3 is currently estimated to include the period from [***].


 


•                  In determining the Agency Fees for Services
performed during “Period 4” of the Agreement beginning as of the end of Period
3 and continuing through the Fourth Milestone, Client will be entitled to a
Discount Amount within the range of [***] of the total amount charged for such Services in accordance with the applicable
Budget, where the actual percentage within this range will be based on the TPP
study findings as described in Exhibit C. As used herein, the Fourth Milestone
will be FDA approval of the Product for the SCI indication.  Period 4 is currently estimated to include
the period from [***].


 


•                  In determining the Agency Fees for Services
performed during “Period 5” of the Agreement beginning as of the end of Period
4 and continuing through the Fifth Milestone, Client will be entitled to a
Discount Amount within the range of [***]


 


19

















 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


of the total amount charged
for such Services in accordance with the applicable Budget, where the actual
percentage within this range will be based on the TPP study findings as
described in Exhibit C.  As used herein,
the Fifth Milestone will be the six-month anniversary of the Product’s launch
for SCI indication.  Period 5 is
currently estimated to include the period from [***].


 


•                  In determining the Agency Fees for Services
performed during “Period 6” of the Agreement beginning as of the end of Period
5 and continuing through the end of the Term, Client will pay as Agency Fees
the total amount charged for such Services in accordance with the applicable
Budget and will not be entitled to any Discount Amount from such fees.  Period 6 is currently estimated to include
the period from [***] through
the end of the Term.


 


“Aggregate
Discount Amount” means the total aggregate amount of all Discount Amounts
actually allowed by CHS during Period 2 through Period 5.  The Aggregate Discount Amount will be “at
risk.”  Such amount will be earned by
and payable to CHS at the Repayment Rate described in the Discount Payment
Matrix in Exhibit B, such rate will be based on the Product’s quarterly revenue
performance during the twelve (12) month period following the Product’s launch.


 


20

















 


Exhibit B


 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


DISCOUNT PAYMENT MATRIX


 


Contract
Exhibit B


 


DISCOUNT
PAYMENT DESCRIPTION


 


The “Actual Prescription
Targets” means actual filled prescriptions of the Product, as measured by IMS,
and the Repayment Rate will be based on comparing the actual filled
prescriptions of the Product during the particular time period(s) with the
Actual Prescription Target(s) during such period(s). The Actual Prescription
Target for the period is [***] prescriptions.


 


Client agrees to make certain
repayments to CHS, as percentages of the Aggregate Discount Amount, based on
the actual filled prescriptions of the Product during the four quarterly
periods immediately following the launch of the Product (such consecutive three
month periods referred to as “Q1,” “Q2,” “Q3,” and “Q4.”), and the applicable
Repayment Rate.  Such repayments by
Client to CHS shall be made, using the applicable Repayment Rate determined as
above, in four quarterly installments, with the first such payment occurring on
the six month anniversary of the Product launch and with subsequent payments
made on the ninth, twelfth, and fifteenth month anniversaries of the launch of
the Product, in accordance with the following procedure:


 


(1)  The first such payment will be determined by
applying the Q1 Repayment Rate (the “Q1 Rate”) – which is determined by
comparing the actual filled prescriptions of the Product made during Q1, with
Actual Prescriptions Target for Q1 – to one quarter of the Aggregate Discount
Amount, according to the following formula. The Actual Prescription Target for
Q1 is [***] prescriptions.


1st Repayment =
(1/4)(Aggregate Discount Amount)(Q1 Rate)


 


(2)  The second such payment will be determined
by applying the Q2 Repayment Rate (the “Q2 Rate”) – which is determined by
comparing the aggregate actual filled prescriptions of the Product made during
Q1 and Q2, with sum of the Actual Prescriptions Targets for Q1 and Q2 – to one
half of the Aggregate Discount Amount, less the 1st Repayment,
according to the following formula. The Actual Prescription Target for Q2 is
[***] prescriptions.


2nd Repayment =
(1/2)(Aggregate Discount Amount)(Q2 Rate) – 1st Repayment; In the
event the 2nd Repayment is negative, then CHS will pay Client the
amount of the 2nd Repayment.


 


(3)  The third such payment will be determined by
applying the Q3 Repayment Rate (the “Q3 Rate”) – which is determined by
comparing the aggregate actual filled prescriptions of the Product made during
Q1, Q2, and Q3 with sum of the Actual Prescriptions Targets for Q1, Q2, and Q3
– to three quarters of the Aggregate Discount Amount, less the 1st
Repayment and the 2nd Repayment, according to the following formula.
The Actual Prescription Target for Q3 is [***] prescriptions.


3rd Repayment =
(3/4)(Aggregate Discount Amount)(Q3 Rate) – 1st Repayment –2nd
Repayment; In the event the 3rd Repayment is negative, then CHS will pay Client
the amount of the 3rd Repayment.


 


(4)  The fourth and final such payment will be
based on applying the Q4 Repayment Rate (the “Q4 Rate”) – which is determined
by comparing the aggregate actual filled prescriptions of the Product made
during Q1, Q2, Q3, and Q4, with sum of the Actual Prescriptions Targets for Q1,
Q2, Q3, and Q4 – to the total Aggregate Discount Amount, less the 1st
Repayment, 2nd Repayment and 3rd Repayment, according to
the following formula. The Actual Prescription Target for Q4 is [***]
prescriptions.


4th Repayment =
(Aggregate Discount Amount)(Q4 Rate) – 1st Repayment –2nd
Repayment – 3rd Repayment; In the event the 4th Repayment is
negative, then CHS will pay Client the amount of the 4th Repayment.


 


21

















 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


Contract
Exhibit B


 


	
   

  	
   

  	
  RANGE

  	
   

  	
   

  	
   

  	
  DISCOUNTS

  	
   

  
	
  Milestone

  	
   

  	
  Low

  	
   

  	
  High

  	
   

  	
  Fees

  	
   

  	
  Low

  	
   

  	
  High

  	
   

  
	
  1st Phase 3*

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  2nd Phase 3

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  NDA Filing

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  NDA Approval

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  Launch + 6

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [****]

  	
   

  	
  [****]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Low Discount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Quarterly

  	
   

  	
  Cumulative

  	
   

  	
  % of
  Target

  	
   

  	
  Repayment
  %

  	
   

  	
  Repayment
  $

  	
   

  
	
  Q1

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q2

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q3

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q4

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  TOTAL

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  High Discount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Quarterly

  	
   

  	
  Cumulative

  	
   

  	
  % of
  Target

  	
   

  	
  Repayment
  %

  	
   

  	
  Repayment
  $

  	
   

  
	
  Q1

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q2

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q3

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  Q4

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  TOTAL

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  [***]

  	
   

  



 


22

















 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 




	
  Low

  	
   

  	
  High

  	
   

  	
  Payment

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  






 


23

















 


Exhibit
C


 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


TARGET PRODUCT PROFILE MATRIX


 


[*****]


 


24

















 


Certain portions of this
Exhibit have been omitted pursuant to a request for confidentiality. Such
omitted portions, which are marked with brackets [   ] and an asterisk*, have been separately filed with the
Commission.


 


 


[*****]


 


25