**Exhibit10.22**

**Confidential Materialsomitted and filed separately with the Securities and Exchange Commission.  Asterisks denote omissions.**

**CO-PROMOTION AGREEMENT**

** by and between**

**MILLENNIUMPHARMACEUTICALS, INC.**

**and**

**ORTHO BIOTECH INC.**

**Dated:  October 25, 2006**

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**TABLE OFCONTENTS**
| 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 |
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|                                      | 3.9 | Additional Activities. | 12 |
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| ARTICLE IV GOVERNANCE                     | 14 |
|                                      |   |
|                                      | 4.1 | Steering Committee. | 14 |
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|                                      | 4.2 | Co-Promotion and Marketing Committee. | 14 |
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| ARTICLE V COMPENSATION                    | 15 |
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|                                      | 5.1 | Call Costs Payments. | 15 |
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|                                      | 5.2 | Variable Costs. | 15 |
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|                                      | 5.3 | Commissions. | 17 |
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|                                      | 5.4 | Tail Payment. | 18 |
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|                                      | 5.5 | Payment Terms. | 19 |

 

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|                                                                                                                       | 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     |

 

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| ARTICLE XI REPRESENTATIONS AND WARRANTIES;  CERTAIN COVENANTS. | 30     |
|----------------------------------------------------------------|--------|
|                                                           |
|                                                           | 11.1   | Representations of Authority. | 30 |
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|                                                           | 11.2   | Consents. | 30 |
|                                                           |   |   |   |
|                                                           | 11.3   | No Conflict. | 30 |
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|                                                           | 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 |
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| 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 |
|                                                           |   |   |   |

 

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|                                                               | 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     |

 

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**CO-PROMOTIONAGREEMENT**

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.,**aNew Jersey corporation (**“OBI”**).  MLNM and OBI are generically referred to inthis Agreement individually as a **“Party”** andcollectively 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 (asamended from time to time, the **“Collaboration and LicenseAgreement”**), pursuant to which MLNM and Ortho Biotech agreed toglobally develop MLNM’s proprietary drug, VELCADE® (bortezomib)for Injection (the **“Product”**) tobe administered by injection for the treatment of multiple myeloma and in othertumor type indications;

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

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

**NOW,THEREFORE,** in consideration of the mutual representations,warranties, covenants and undertakings contained in this Agreement, and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the Parties hereto, intending to be legally bound, agreeas follows:

**ARTICLE I**

**DEFINITIONS;CONSTRUCTION; TERM**

**1.1****                               Definitions.**  Capitalized terms used in this Agreement havethe meanings assigned in Appendix A.

**1.2****                               Construction. **Except where the context requiresotherwise, whenever used, the singular includes the plural, the plural includesthe 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 ofdays, unless otherwise specified, such number refers to calendar days.  The headings of this Agreement are forconvenience of reference only and do not define, describe, extend or limit thescope or intent of this Agreement or the scope or intent of any provisioncontained in this Agreement.  The term “including”or “includes” as used in this Agreement means including or includes “withoutlimiting” or “without limitation.”  Thewording of this Agreement shall be deemed to be the wording mutually chosen bythe Parties and no rule of strict construction shall be applied against eitherParty.

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**1.3****                               Term.**

1.3.1                        ThisAgreement shall commence on the Effective Date and shall continue in full forceand effect until December 31, 2008, unless extended or earlier terminated ashereinafter set forth.  The periodbeginning on the Effective Date and ending on December 31, 2006 is referred toas the **“Pre-Commencement Period**.**”**  The periodbeginning on January 1, 2007 and ending on December 31, 2008, as may beextended by any Extension Term(s) and as may be earlier terminated pursuant tothis Agreement, is referred to as the **“Co-Promotion Term**.**”**

1.3.2                        TheCo-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 inaccordance with Article 8, and in the event the sum of the aggregate Net Salesof the Product in 2007 and the Annualized Net Sales in 2008 exceed [**] Dollars($[**]), the Parties shall negotiate in good faith as set forth in thisSubsection 1.3.2 the extension of this Agreement for one (1) additional year.  Each Extension Term shall be governed by theterms and conditions set forth in this Agreement except (a) to the extent thatsuch terms and conditions are amended as mutually agreed to in writing by theParties, and (b) the payment provisions set forth in Article V hereof and asreferenced elsewhere in this Agreement, shall be subject to re-negotiation foreach Extension Term.  In the event that aParty wishes to enter into an Extension Term, it shall notify the other Partyin writing at least three (3) months prior to the expiration of theCo-Promotion Term.  Following receipt ofsuch notice by the other Party, the Parties shall negotiate the financial termsapplicable to the proposed Extension Term in good faith for a period of lessthan sixty (60) days.  In the event thatthe Parties fail to reach agreement on the payment provisions prior to theexpiration of the Co-Promotion Term, then the Agreement shall expire uponexpiration of the Co-Promotion Term then in effect without further extension atsuch time.

**ARTICLEII**

**PRE-COMMENCEMENTACTIVITIES**

**2.1****                               Generally.**  During the Pre-Commencement Period, theParties shall complete the activities described in Sections 2.2 through 2.4below.  In the event that, following allcommercially reasonable efforts of both Parties, all such activities have notbeen 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 orprior to the commencement of the Co-Promotion Term, the Parties shall proceedas otherwise contemplated by this Agreement and shall continue to use allcommercially reasonable efforts to complete the remainder of the activitiesthat were supposed to have been completed during the Pre-Commencement Period assoon as practicable, but in no event later than March 31, 2007. ** **In the event that theMinimum Pre-Commencement Activities have not been fully performed on or priorto the commencement of the Co-Promotion Term, then the Parties shall proceed inaccordance with the following Sections 2.1.1 and 2.1.2.

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

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responsibilities anddeadlines to each Party, as applicable, to facilitate completion of the MinimumPre-Commencement Activities by January 29, 2007.  OBI may not commence Co-Promotion of theProduct until the Minimum Pre-Commencement Activities have been completedunless otherwise agreed upon by the Steering Committee.

2.1.2                        In theevent the Minimum Pre-Commencement Activities are fully performed by January29, 2007 but all activities described in Sections 2.2 through 2.4 below havenot been completed, the Steering Committee shall convene on or before such dateto review the activities completed by the Parties to date and shall assignclear responsibilities and deadlines to each Party, as applicable, tofacilitate completion of such activities as soon as reasonably practicable butno later than March 31, 2007.

**2.2****                               Co-PromotionPlan. **The Parties shall develop andcomplete a plan to Co-Promote the Product in the Co-Promotion Territory (the **“Co-Promotion Plan”**). The Parties shall amend and update theCo-Promotion Plan semi-annually during each calendar year or more frequently asdetermined by the Steering Committee. The Co-Promotion Plan, as the same may be amended and updated from timeto time, shall be approved by the Co-Promotion and Marketing Committee andincorporated into this Agreement as Appendix B.  Each Party shall use all commerciallyreasonable efforts to complete the Co-Promotion Plan within sixty (60) days ofthe Effective Date, but in any event, subject to Section 2.1.1 and 2.1.2 ofthis Agreement, prior to the commencement of the Co-Promotion Term.  The Co-Promotion Plan shall include, withoutlimitation, the Target List, Call Plan and Call Reporting and ReviewRequirements as described further in this Section 2.2.

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

2.2.2                        CallPlan.  OBI shall develop a plan forCalling on the MLNM Targets (the **“Call Plan”**)and update the Call Plan at least semi-annually during each calendar year ormore frequently as OBI may determine. The Call Plan and each update thereto shall be subject to review, inputand approval by the Co-Promotion and Marketing Committee and shall beincorporated into the Co-Promotion Plan following approval by the Co-Promotionand Marketing Committee. The Call Plan shall be consistent with therequirements of Section 3.2.1.  OBI shallprovide all Sales Representatives with a copy of the applicable Call Plan.

2.2.3                        CallReporting and Review Requirements. The Co-Promotion and Marketing Committee shall develop reporting andreview requirements whereby OBI shall 

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provide MLNM with reportsregarding execution of the Call Plan by OBI so that MLNM may monitor executionof the Call Plan by OBI (the **“Call Reporting and ReviewRequirements”**).

(a)                                  TheCall Reporting and Review Requirements shall be incorporated into theCo-Promotion Plan and shall provide, interalia that:

(i)                                     Duringthe Co-Promotion Term, within [**] days of the end of each calendar month, OBIshall provide a final detailed report to MLNM summarizing the Call activity forsuch calendar month (each such report, a **“Monthly Call Report”**).  Each Monthly Call Report shall include withrespect to each Call made by the Sales Representatives (1) the date of theCall; (2) the MLNM Target (including identifying information mutually agreedupon 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 reportingsystem; (5)  account information to theextent available in the OBI call reporting system (including identifyinginformation mutually agreed upon by the Parties in the Co-Promotion Plan); (6)identification of Sales Representative who performed the Call; (7) position ofthe 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 electronicformat mutually agreed to by the Parties;

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

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

(iv)                              AtMLNM’s written reasonable request, made not less than [**] Business Days priorto the applicable event, MLNM shall have the right to monitor the performanceof Sales Representatives in a mix of geographical territories through (1) [**]relating to this Agreement and (2) [**] (including, without limitation, [**].** **MLNMshall 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 theknowledge of the Sales Representatives with respect to the Product, thePromotional Materials and the Call Plan and the performance of Calls by theSales Representatives.

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

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

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

2.3.1                        OBI shallprovide a sufficient number of OBI Trainers to train all of the SalesRepresentatives.  The OBI Trainers shallbe selected by OBI and have prior experience in selling oncology therapeuticssimilar to those otherwise used by OBI for its own products.

2.3.2                        MLNM shallprovide one (1) copy of training materials to OBI for use solely in connectionwith (a) the training of the OBI Trainers and (b) the training of the otherCo-Promotion Representatives by the OBI Trainers pursuant to the TrainingPlan.  OBI shall have the right toreproduce such training materials and provide copies of the same to the OBITrainers and the Co-Promotion Representatives for use in connection with theirtraining pursuant to the Training Plan.

2.3.3                        On orprior to December 31, 2006 MLNM shall complete its training of the OBI Trainerswith respect to (a) sales and scientific materials regarding the disease stateinformation on multiple myeloma and (b) use of the Product in the approvedindication for multiple myeloma in the Co-Promotion Territory.

2.3.4                        TheParties shall jointly develop assessment materials to allow MLNM to test theperformance of OBI Trainers and each OBI Trainer shall be required to receivean individual minimum score of [**] percent ([**]%) under such tests before heor she initiates training of Co-Promotion Representatives.

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

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related to the trainingof the Co-Promotion Representatives pursuant to and in accordance with theTraining Plan.

2.3.6                        MLNM shallprovide supplementary training to OBI Trainers as deemed necessary andappropriate by MLNM during the Co-Promotion Term including without limitationtraining regarding any newly approved indication for the Product or emergingProduct safety information.  OBI shallcause the OBI Trainers to provide initial training in accordance with theTraining Plan to any additional or replacement Co-Promotion Representatives andsupplementary training to other Co-Promotion Representatives as deemednecessary and appropriate by OBI during the Co-Promotion Term.

2.3.7                         EachParty shall be responsible for ensuring that all of its personnel involved inthe activities set forth under this Agreement, complies with all ApplicableLaws.  Each Party shall ensure that allof its personnel involved in the Co-Promotion receives such compliance trainingregarding Applicable Laws****in a mannerconsistent with all applicable pharmaceutical industry standards.

**2.4****                               CorePromotional Materials.**

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

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

2.4.3                        MLNM shallprovide OBI with copies of the Core Promotional Materials in the quantitiesrequested by OBI from time to time during the Co-Promotion Term to perform itsobligations pursuant to this Agreement and subject to the In Kind Payment setforth in Section 5.2.2.  MLNM shall shipsuch copies to OBI to one distribution center designated by OBI.

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**ARTICLEIII**

**CO-PROMOTION**

**3.1****                               Rightsand Obligation to Co-Promote; Combined Use with Doxil****®**

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

3.1.2                        Subject tothe terms and conditions of this Agreement, upon receipt by OBI or itsAffiliates, as applicable, of notice of acceptance by the FDA of OBI’s or itsAffiliate’s sNDA filing for the marketing and sale of Doxil® foruse in combination with the Product for treatment of multiple myeloma (the **“Combination sNDA Filing”**), OBI and its Affiliates herebygrant to MLNM: (a) a non-exclusive right and license to promote in theCo-Promotion Territory and its territories and possessions the use of theProduct in combination with Doxil® inaccordance with the United States package insert for Doxil®, (b) a non-exclusive right and license touse the Doxil® trademark solely in connection with themarketing and sales of the Product in the Co-Promotion Territory and itsterritories and possessions for use in combination with Doxil®, (c) a non-exclusive right to use allDoxil® Data (asdefined below) in connection with the marketing and sales in the Co-PromotionTerritory and its territories and possessions of the Product for use incombination with Doxil® , and(d) a non-exclusive right to include such combination as a new use on theProduct Label and Insert and full prescribing information for the Product inthe Co-Promotion Territory and its territories and possessions bycross-referencing the Doxil® label (or any data contained or referenced inany submissions or applications made by OBI or its Affiliates for the marketingapproval of such combination by the FDA) in any submissions or applicationswhich 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 fullypaid-up.  In the event this Agreement isterminated pursuant to Sections 8.1.1, 8.1.2(a), (b) (solely in the event thebasis 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 andshall be  royalty-free, fully paid-up,perpetual and irrevocable.    If thisAgreement is terminated pursuant to Section 8.1.2(b) in the event the basis ofsuch termination is a material breach by MLNM or pursuant to Section 8.1.2(f),the Doxil® Licenseshall not survive unless if, on the applicable effective date of termination ofthis Agreement under such sections, the FDA has accepted MLNM’s sNDA filing forthe marketing and sale of the Product for use in combination with Doxil fortreatment of multiple myeloma, in which case, the Doxil® License shall survive and beroyalty-free, fully paid-up, irrevocable and perpetual; provided, however, ifthe FDA does not approve the sNDA such license shall terminate. MLNM shall haveno right to transfer, assign or 

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sublicense its rightsunder the Doxil® License during the term of this Agreement andfollowing its termination except:  (x)MLNM may assign its rights under the Doxil® License to a ThirdParty in connection with an assignment of this Agreement by MLNM to such ThirdParty pursuant to Section 14.11, and (y) MLNM may sublicense its rights under the Doxil® License to a Third Party in connection with alicense to Commercialize (as defined in the Collaboration and LicenseAgreement) the Product in the Co-Promotion Territory that is granted by MLNM tosuch Third Party (to the extent permitted under the Collaboration and LicenseAgreement).** **Forpurposes of this Section 3.1.2, “**Doxil****® Data**” shall mean any data relating toDoxil® submitted by OBI or its Affiliate to FDA inthe Combination sNDA Filing and any data submitted by OBI or its Affiliate toFDA to update, support or supplement the product label for Doxil®. OBI and its Affiliates agree to promptly disclose and provide to MLNMany Doxil® Dataprovided to the FDA and, upon MLNM’s request from time to time, all Doxil Dataand any other data contained or referenced in the Combination sNDA Filing andany updates thereto, to the extent such information and data is available atthe time of each such request. Notwithstanding anything to the contrary herein, OBI makes norepresentation or warranty to MLNM relating to (A) MLNM’s ability to obtain FDAapproval of the use of the Product in combination with Doxil®, or (B) OBI’s and its Affiliate’s abilityto obtain FDA approval of the Combination sNDA Filing.  MLNM shall ensure (1) that all statements andclaims related to Doxil®, includingas to efficacy and safety, are consistent with and in strict compliance withthe Doxil® label andinsert and all Applicable Laws, including the Act, and (2)****that all comments about Doxil® andOBI are truthful, accurate and in strict compliance with Applicable Laws.  ** **In addition, at any time during andafter the Co-Promotion Term when such combination is not included on theProduct Label and Insert, MLNM shall ensure that all statements and claimsrelated to Doxil® are consistent with messaging approved inadvance 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 permittedsublicensees of the Doxil® License comply with the foregoingrequirements.  Any rights of OBI notexpressly granted to MLNM hereunder with respect to Doxil® shall be retained by OBI.  OBI shall cause its Affiliates promptly afterexecution of this Agreement to enter into a fully paid up, royalty-free trademarklicense with MLNM consistent with the terms of this Section 3.1.2 and any otheragreements necessary to effect the grants made under this Section 3.1.2, eachin a form mutually acceptable to both Parties.

**3.2****                               Reachand Frequency; Minimums.**

3.2.1                        During theCo-Promotion Term, OBI shall execute a Call Plan which shall direct its SalesRepresentatives to complete [**] per month within the Measurement Period foreach First Position Target and [**] per month within the Measurement Period foreach Second Position Target (collectively, the **“CallStandard”**). During each Measurement Period, OBI shall usecommercially reasonable efforts to cause its Sales Representatives to conductCalls in accordance with the Call Plan; provided, however, that neither anyfailure of OBI to use such commercially reasonable efforts nor any failure tomeet the Call Standard shall constitute a breach of this Agreement or otherwiseentitle MLNM to terminate this Agreement; and provided, further, that in noevent shall this proviso limit the rights of MLNM to terminate under Section3.2.4.

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3.2.2                        In theevent 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 andnot less than [**] percent ([**]%) of Second Position Targets, and (b) aMinimum Frequency of not less than [**] Calls within the Measurement Period forReached First Position Targets and not less than [**] Calls within theMeasurement Period for Reached Second Position Targets.  The aforementioned Reach and MinimumFrequency requirements are referred to, collectively, as the **“Minimum Commitment”**. For purposes of subsections 3.2.2through 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 orReached Second Position Targets (as the case may be) in such Measurement Periodby (ii) the number of Reached First Position Targets or Reached SecondPosition Targets (as the case may be) in such Measurement Period; (y) a “**Reached First Position Target**” means, with respect to aMeasurement Period, a First Position Target who received at least [**] duringsuch Measurement Period; and (z) a “**Reached Second PositionTarget**” means, with respect to a Measurement Period, a SecondPosition Target who received at least [**] during such Measurement Period.  With respect to a particular MLNM Target, nomore 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 thenumerator of the calculation of Minimum Frequency, *provided,*that,with respect to First Position Targets, such Calls shall be First PositionCalls.  For purposes of calculating Reachand Minimum Frequency to a Second Position Target, a Call may be a FirstPosition Call or a Second Position Call.

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

3.2.4                        In theevent [**] Non-Performing Periods occur during the Co-Promotion Term (whetheroccurring consecutively or not), such event shall be deemed to be an “**OBI Non-Performance Breach**” and (a) MLNM shall not beobligated 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 whichthe [**] Non-Performing Period occurs shall be reduced as set forth in Section3.2.3 and (c) MLNM shall have the right to terminate this Agreement pursuant toSection 8.1.2(a) at any time within one-hundred and eighty (180) days after theoccurrence of such Non-Performance Breach. In the event MLNM does not elect to terminate this Agreement pursuant toSection 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 suchNon-Performing Period(s) without taking into account the one-hundred and eighty(180) day period set forth in clause (c) above.

3.2.5                        Notwithstandinganything to the contrary in this Agreement, termination of this Agreement byMLNM pursuant to Section 8.1.2(a) (together with the modification to MLNM’s paymentobligations as described in Sections 3.2.3 and 3.2.4 above and the 

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Termination Fee pursuantto Section 8.3.2(a)) shall be the sole and exclusive remedy of MLNM for anyLosses of MLNM caused by or arising as a result of OBI’s failure to satisfy theMinimum Commitments.  MLNM shall not havethe right to terminate this Agreement pursuant to Section 8.1.2(b) (relating tomaterial breach) on the basis of OBI’s failure to satisfy the MinimumCommitments in one or more Measurement Periods which failure is a basis fortermination by MLNM pursuant to Section 8.1.2(a).

**3.3****                               SalesRepresentatives.**

3.3.1                        OBI shallnot use any contract sales organizations or other Third Parties to satisfy anyor all of its obligations under this Agreement. Subject to Section 11.8, MLNM at its discretion may use a contract salesorganization to supplement its employee sales force.

3.3.2                        At alltimes during the Co-Promotion Term, OBI shall use all commercially reasonableefforts to deploy a sales force (the **“OBI Sales Force”**)of at least approximately the same number (the **“CurrentSales Force Size”**) of sales representatives as are in the OBIoncology field sales force on the Effective Date.  The OBI Sales Force shall be responsible forCo-Promoting the Product in accordance with this Agreement and the Co-PromotionPlan.  Such responsibilities shall be inaddition to but not to the exclusion of the promotion of Doxil® andProcrit® on behalf ofOBI.  During the Co-Promotion Term, OBIshall promptly notify MLNM at least [**] days in advance, to the extentpractical 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 oneor more of the aforementioned products (Doxil® andProcrit®) from thegroup of products that the OBI Sales Force is engaged to promote or theaddition of one or more products to their promotional activities.  In addition, as soon as practicable but nolater than [**] days after such notification to MLNM, OBI shall provide theSteering Committee****with a writtenplan that demonstrates that OBI shall continue to direct the OBI SalesRepresentatives  to meet the CallStandard  following such reduction in theSales Force and/or change in the product mix. In the event that OBI fails to meet the Call Standard, and does notsatisfy the Minimum Commitment in the first full Measurement Period occurringafter notification of such sales force reduction or product mix change, an OBINon-Performance Breach shall be deemed to have occurred and such MeasurementPeriod shall be treated as the [**] Non-Performing Period under Section 3.2.4if, at any time prior to such first full Measurement Period, there is one ormore Non-Performing Period.

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

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**3.4****                               PromotionalMaterials.**

3.4.1                        Allelectronic and physical advertising, promotional, educational, training andcommunication materials for marketing and advertisement of the Product in theCo-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 CorePromotional Materials shall be developed and revised as set forth in Section2.4.  Promotional Materials include CorePromotional Materials.

3.4.2                        In theevent that there are certain MLNM Promotional Materials other than the CorePromotional Materials that OBI considers useful in its Co-Promotion of theProduct, such as MLNM’s Patient Starter Kit, OBI shall notify the Co-Promotionand Marketing Committee.  If approved bysuch committee, MLNM shall provide such other Promotional Materials to OBI andcharge 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 shallprovide sales direction, training and communications to all Co-PromotionRepresentatives on a basis and in a manner that is consistent with the ProductLabel and Insert and Promotional Materials that OBI received pursuant to thisAgreement.  OBI shall, and shall causeits Sales Representatives to (a) only use such Promotional Materials providedby MLNM in connection with the Co-Promotion of the Product, (b) ensure that allstatements and claims related to the Product, including as to efficacy andsafety, are consistent with and in strict compliance with the Product Label andInsert and such Promotional Materials, and all Applicable Laws, including theAct, (c) ensure that all comments about the Product, Product competition, otherproducts and MLNM are truthful, accurate and in strict compliance withApplicable Laws, and (d) not change such Promotional Materials in anyrespect.  Without limitation to theforegoing, OBI shall not, and shall not cause or permit its SalesRepresentatives to make any untrue or misleading statements or comments aboutthe Product, and/or take any action that jeopardizes, or could reasonably beexpected to jeopardize the goodwill or reputation of MLNM or its products.

**3.5****                               ProductSales.**

3.5.1                        MLNM shallhave the sole right and responsibility for establishing and modifying the termsand 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 accountsreceivable, (d) whether the Product shall be subject to rebates, returnsand allowances or retroactive price reductions, (e) the channels ofdistribution of the Product, (f) whether credit is to be granted orrefused in connection with any sale of Product, and (g) discussions withGovernment Authorities regarding Product pricing or reimbursement.

3.5.2                        MLNM shallprovide Sales Representatives with general information related to the placementof orders for the Product by health care professionals with prescribingauthority 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 anyorders that it receives and cause its Sales Representatives to promptly directany orders they may receive to MLNM or to its sole distributor,MillenniumDirectTM, or any other such distributor as 

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

**3.6****                               ProductRecall and Withdrawal.**  Recalls andwithdrawals of the Product shall be handled in accordance with theCollaboration and License Agreement.  Inthe event that MLNM decides to conduct a recall in the Co-Promotion Territoryin accordance with the Collaboration and License Agreement, MLNM shall adviseOBI with respect to any actions to be taken by OBI in connection with therecall.

**3.7****                               ProductReturn.**  MLNM shall have the soleresponsibility and right to accept, either directly or indirectly, any requestto return Product in the Co-Promotion Territory.  OBI shall not solicit the return of anyProduct and shall promptly notify MLNM of any returned Product received by OBIby contacting the MLNM Medical Drug Information Call Center at 1-866-VELCADE oras may otherwise be reasonably directed by MLNM from time to time.  Any Product returned by OBI shall beaccompanied by a fully completed return form provided by MLNM and shall beshipped by OBI to a facility designated by MLNM.  All reasonable shipping costs of OBI inconnection with any Products returned by OBI to MLNM in the Co-Promotion Territoryshall be reimbursed by MLNM.

**3.8****                               Product Medical Inquiries.**

3.8.1                        MLNM shallhave the exclusive right to respond to all questions or requests forinformation about the Product made by any medical professionals or any otherperson to OBI or its Sales Representatives that (a) are not appropriate, perApplicable Laws, for a response to be made by a Sales Representative, (b) ifappropriate per Applicable Law for a response to be made by a SalesRepresentative, warrant a response beyond the knowledge or understanding ofsuch Sales Representatives, or (c) are beyond the scope of the Core PromotionalMaterials (all such questions or requests being referred to as **“Product Medical Inquiries”**).  OBI shall direct its Sales Representatives todirect all Product Medical Inquiries within [**] of their receipt thereof tothe MLNM Medical Drug Information Call Center at 1-866-VELCADE or as mayotherwise be reasonably directed by MLNM from time to time.  In no event shall OBI respond to, or permitits Sales Representatives to respond to any Product Medical Inquiry.

**3.9****                               AdditionalActivities.**  OBI shall not beprohibited from undertaking promotional activities with respect to the Productthat are in excess of those for which OBI is responsible under this Agreementand the then current Co-Promotion Plan, provided that such excess promotionalactivities (a) are not inconsistent with this Agreement or the then currentCo-Promotion Plan, (b) are approved by the Co-Promotion and MarketingCommittee, (c) are in 

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compliance withApplicable Laws and industry guidance, including, without limitation, theAccreditation Council for Continuing Medical Education Standards for Support ofContinuing Medical Education, the American Medical Association Guidelines onGifts to Physicians from Industry, the Pharmaceutical Research andManufacturers of America Code on Interactions with HealthcareProfessionals,  (d) do not involve thedevelopment or use of additional promotional materials, (e) are undertaken andperformed at the sole cost and expense of OBI, and (f) MLNM receives a reportwithin [**] days of the end of each calendar month during which such activitiesare undertaken, describing such activities, including but not limited to, callinformation, frequency and other items identified by the Co-Promotion andMarketing Committee.

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# **ARTICLEIV****GOVERNANCE**

## **4.1     ****Steering****Committee.**

### 4.1.1        Formation; Purpose.  Simultaneouslywith the execution of this Agreement, the Parties shall establish a SteeringCommittee (the **“Steering Committee”**)which shall: (a) oversee the activities to be undertaken by the Parties duringthe 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 theCo-Promotion Term; (c) endeavor to resolve disputes of the Co-Promotion andMarketing Committee referred to the Steering Committee pursuant to Section13.1.1.

### 4.1.2        Membership.        The Steering Committee shallconsist of no more than six (6) members and no less than two (2), half of whomshall be management level employees of MLNM who are appointed by MLNM and halfof whom shall be management level employees of OBI who are appointed byOBI.  Each Party shall promptly fill anyvacancy created by the resignation or removal of any members appointed by suchParty.  Either Party may remove andreplace any of its members with or without cause at anytime by prior writtennotice to the other Party.

### 4.1.3        Meetings;Voting.** **The Steering Committee shall meet at such times as determinedby the Parties but not less than once per calendar quarter at locationsdesignated on an alternate basis by the Parties.  Each Party shall bear its own costsassociated with the attendance of its appointees at the meetings.  MLNM shall designate one of its appointees asthe Chair of the Steering Committee.  Thecommittee shall operate by consensus with each Party having one (1) vote on theSteering Committee.

## **4.2      Co-****Promotion****andMarketing Committee.**

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

### 4.2.2        Membership.        The Co-Promotion and MarketingCommittee 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 andmarketing employee of the Party appointing such member.  Each Party shall promptly fill any vacancycreated by the resignation 

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

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

### 4.2.4        WorkingGroups. The Co-Promotion and Marketing Committee may establish workinggroups to oversee particular projects or activities of such committee and eachworking group shall be constituted and shall operate as determined by suchcommittee.

# **ARTICLE VCOMPENSATION**

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

## **5.1      CallCosts 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 Costshall be increased or decreased by the percentage increase or decrease in theapplicable CPI as of the then most recent annual period ending December 31 overthe level of such CPI on December 31, 2006.

### 5.1.2        Inaddition to the other amounts payable pursuant to this Article V, MLNM shallpay OBI [**] percent ([**]%) of each Call Cost (the **“Call Cost Payment”**) with respect to each Call made by SalesRepresentatives to Co-Promote the Product to MLNM Targets in accordance withthe Call Plan up to a maximum amount equal to (a) [**] Dollars ($[**]) percalendar quarter in each of 2007 and 2008 for all First Position Targets and(b) [**] Dollars ($[**]) per calendar quarter in 2007 and 2008 for all SecondPosition Targets.  Beginning on January1, 2008, the maximum amounts set forth under subsections (a) and (b) above withrespect to Call Cost Payments for 2008 shall be increased or decreased by thepercentage increase or decrease in the applicable CPI as of the then mostrecent annual period ending December 31 over the level of such CPI on December31, 2006.

## **5.2      VariableCosts.**In addition to the other amounts payablepursuant to this Article V, MLNM shall also make the following payments to OBI(collectively referred to as **“Variable CostPayments”**):

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

### 5.2.2        CorePromotional Materials.  An “in-kind”payment of up to [**] Dollars ($[**]) (the **“InKind Payment”**) in each of 2007 and 2008 in Core PromotionalMaterials to be used by the Sales Representatives.  This payment shall be calculated using the “directcosts” of MLNM to produce such Core Promotional Materials.  The cost of any Core Promotional Materials inexcess of the In Kind Payment in either 2007 or 2008 must be agreed to by theCo-Promotion and Marketing Committee.  Ifapproved, the amount in excess of the In Kind Payment shall be shared equallyby the Parties unless otherwise agreed by the Co-Promotion and MarketingCommittee.  The In Kind Payment may notbe applied towards the cost of Promotional Materials requested by OBI otherthan Core Promotional Materials pursuant to Section 2.4.3.  OBI shall pay its share of the productioncosts for the copies of the Core Promotional Materials provided by MLNM inexcess of the In Kind Payment within [**] days of invoice from MLNM.

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

### 5.2.4        FieldSales Training.  MLNM shall reimburseOBI for actual, out-of-pocket incremental costs incurred by OBI as a result oftraining activities of  Co-PromotionRepresentatives that are for the purposes of training related exclusively tothe Co-Promotion of the Product in connection with the Training Plan (i.e. noreimbursement shall be due in connection with training activities that are onlypartially related to the Co-Promotion of the Product or outside of the TrainingPlan) in the following amounts:

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

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

#### (c)           Up to an amount not to exceed [**] Dollars ($[**]) in2008.

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

### 5.3.1        Withrespect to 2007 calendar year Net Sales during the Co-Promotion Term, MLNMshall pay OBI:

#### [**] percent([**]%) of that portion of such annual aggregate Net Sales that are greaterthan [**] Dollars ($[**] shall be referred to as “2007 Baseline”), but are lessthan or equal to [**] Dollars ($[**]), 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        Withrespect to 2008 calendar year Net Sales during the Co-Promotion Term, MLNMshall pay OBI:

#### [**] percent([**]%) of that portion of such annual aggregate Net Sales that are greaterthan [**] Dollars ($[**] shall be referred to as “2008 Baseline”) but are lessthan or equal to [**] Dollars ($[**]), 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 NetSales of the Product during the Co-Promotion Term in a calendar year shall bepaid at the rate applicable to the portion of Net Sales within each of theapplicable defined Net Sales levels during such calendar year.  By way of example:

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

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#### (a)           WhereU equals a Commission Payment of [**]% of that portion of the Net Sales that isgreater than the 2007 Baseline  but lessthan or equal to $[**], which equals [**];

#### (b)           WhereV equals a Commission Payment of [**]% of that portion of Net Sales whichexceeds $[**], which equals [**]; and

#### (c)           Wequals $[**].

### 5.3.4        The2007 Baseline and the 2008 Baseline shall apply with respect to all CommissionPayments based on Net Sales for 2007 and 2008, respectively, including, withoutlimitation, to the extent such Commission Payments are payable  pursuant to Section 8.3.2.  MLNM shall determine when Net Sales occur forpurposes of this Article V in a manner consistent with MLNM’s customary andusual accrual procedures, consistently applied.

## **5.4     ****Tail****Payment.**

### 5.4.1        Inaddition to the other amounts payable pursuant to this Article V, in the eventthat the sum of the aggregate Net Sales of the Product during the Co-PromotionTerm in 2007 and 2008 exceeds [**] Dollars ($[**]), then additional commissionsshall be payable by MLNM to OBI based on Net Sales in 2009 and 2010 (each, a **“Tail Payment”**), as follows:

#### (a)           Inthe 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 asfollows:

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

#### (b)           Inthe event that Net Sales in 2010 exceed [**] Dollars ($[**]), MLNM shall payOBI a Tail Payment based on Net Sales in 2010 calculated as follows:

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

### 5.4.2        Byway 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        NoTail Payment shall be earned or become payable based on Net Sales in 2009 or2010 if the sum of the aggregate Net Sales in 2007 and 2008 is less than [**]Dollars ($[**].

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## **5.5      PaymentTerms.**

### 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 reportproviding in reasonable detail an accounting of the applicable training costsincurred by OBI in 2006.  Within [**]days following MLNM’s receipt of such report, MLNM shall pay to OBI anyundisputed amounts contained in such report.

### 5.5.2        Subjectto Section 3.2, with respect to Call Cost Payments and Variable Cost Paymentsfor each of 2007 and 2008, within [**] days after the end of each quarter, OBIshall submit to MLNM a report providing in reasonable detail an accounting ofthe total Call Cost Payments and the total Variable Cost Payments due for eachquarter of 2007 and 2008 Within [**] days following MLNM’s receipt of suchreport, 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 reportproviding in reasonable detail an accounting of the type and quantity of CorePromotional 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 Materialsand to be charged against the amounts permitted under Section 5.2.2.

### 5.5.4        MLNMshall calculate the Commission Payments payable to OBI for each of 2007 and2008, if any, and pay the same to OBI within [**] days of the end of theapplicable year.  Together with each suchpayment, MLNM shall submit to OBI a report providing in reasonable detail anaccounting of all Net Sales made during such year and the calculation of theapplicable Commission Payments.

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

### 5.5.6        Allpayments to be made by one Party to the other Party  pursuant to this Agreement shall be madeelectronically pursuant to wire transfer instructions provided by the receivingParty to the paying Party, as may be updated from time to time.

### 5.5.7        EachParty will provide the other Party, to the extent such information is  available, annual estimates of the paymentsdescribed above in this Section 5.5 to assist the other Party in its accountingpractices regarding any payments under this Agreement.

## **5.6      LatePayments.**  Each Party shall pay interest to theother Party on the aggregate amount of any undisputed payments that are notpaid on or before the date such payments are due under this Agreement at a rateper annum equal to the lesser of one percent (1%) per month or the highest ratepermitted by applicable law, calculated on the number of days such payments arepaid after the date such payments are due and compounded monthly.

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## **5.7      Promotion Expenses. **Except as otherwise expressly setforth in this Agreement, each Party shall bear and be solely responsible forall costs and expenses incurred by it in connection with the promotion of theProduct and the performance of its obligations under this Agreement.

## **5.8      TaxMatters.**

### MLNM shallmake all payments to OBI under this Agreement without deduction or withholdingfor any Taxes except to the extent that any such deduction or withholding isrequired by Applicable Law.  Each Partyshall otherwise be responsible for its own income taxes and any other Taxespayable by such Party arising under or in connection with this Agreement and shallpay all such Taxes and file any applicable tax returns on a timely basis.   Any tax required to be withheld on amountspayable under this Agreement shall promptly be paid by MLNM on behalf of OBI tothe appropriate governmental authority, and MLNM shall furnish OBI with proofof payment of such tax.  Any such tax required to be withheld shall be anexpense of and borne by OBI.

# **ARTICLE VIADVERSE EVENT REPORTING; FIELD REPORTS; PRODUCT COMPLAINTS,GOVERNMENTAL COMMUNICATIONS; STATE REPORTING.**

## **6.1      AdverseEvents.**  OBIshall, and shall cause each of its Sales Representatives to provide notice toMLNM within [**] of the time it, he or she becomes aware of an Adverse Eventassociated with use of the Product (whether or not the reported effect is (a)described in the full prescribing information or the published literature withrespect to such Product or (b) determined to be attributable to suchProduct), or any information in or coming into its, his or her possession orcontrol concerning such Adverse Event by contacting the MLNM Medical DrugInformation Call Center at 1-866-VELCADE or by completing the adverse eventreport form provided by MLNM and submitting such form to MLNM or its designatedsafety contractor.

## **6.2      FieldReports. **OBIshall, 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 mightnecessitate the filing by MLNM of a field alert report, as required under 21C.F.R. §314.81(b)(1) (a **“Field Alert”**),as such regulation may be amended from time to time, by contacting the MLNMCall Center at 1-866-VELCADE.

## **6.3      Fieldand Efficacy.**

### 6.3.1        OBIshall immediately notify MLNM of any information OBI receives regarding anythreatened or pending action by any Governmental Authority that may affect thesafety or efficacy claims of the Product or the continued marketing andCo-Promotion of the Product.  Uponreceipt of any such information, MLNM may consult with OBI in an effort to arriveat a mutually acceptable procedure for taking appropriate action; *provided, however,* that 

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

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

## **6.4      ProductComplaints.**  OBIshall, and shall cause each of its Sales Representatives to, notify MLNM assoon as possible, but no later than [**] of the time it, he or she becomesaware of any Product quality complaint associated with the use of the Product,including but not limited to those Product quality complaints associated withAdverse Events, by contacting the****MLNMMedical Drug Information Call Center at 1-866-VELCADE.

## **6.5      MLNMResponsibility.**

### 6.5.1        MLNMshall be solely responsible for (a) taking all actions and conducting allcommunication with all Third Parties in respect of the Product in the UnitedStates and its territories and possessions (other than the activities to beperformed by OBI in accordance with the terms of this Agreement or theCo-Promotion Plan), including responding to all Product quality complaints inrespect thereof, including complaints related to tampering or contamination,and (b) investigating, communicating and processing all Product qualitycomplaints, information it receives under Section 6.3 as it relates to safetyand efficacy claims, Adverse Events, and Field Alerts in respect of the Productin accordance with MLNM’s standard procedures, the Pharmacovigilance Agreemententered into by MLNM and Ortho Biotech, dated March 8, 2004, as amended fromtime to time, and the Quality Agreement entered into by MLNM and Cilag AG, anAffiliate of OBI, dated January 5, 2005, as amended from time to time, asapplicable.

### 6.5.2        MLNMshall be solely responsible for the preparation, submission and prosecution ofany application, report, submission and response to any GovernmentalAuthorities in connection with the Product, including reporting Adverse Eventsand Field Alerts; *provided*that when feasible, MLNMshall consult with OBI with respect to any such matter and give dueconsideration to any comments provided by OBI.

## **6.6      OBICommunications.** Unless required by Applicable Law, OBI shall not communicate directlywith any Governmental Authorities regarding the Product or otherwise take anyaction concerning any application, registration, authorization or approvalunder which the Product is sold.  OBIshall notify MLNM promptly of any communications with any GovernmentAuthorities concerning the Product and shall, to the extent permitted byApplicable Law, attach copies of all such communications to the notice sent.

## **6.7      OBICooperation. **OBIshall, at MLNM’s expense, cooperate with all of MLNM’s reasonable requests anduse its reasonable efforts to assist MLNM in connection with (a) preparing anyand all such reports with Governmental Authorities, (b) preparing and 

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

# **ARTICLE VIIAUDIT RIGHTS**

## **7.1      AuditRight Period.** MLNM and OBI each agree that it shall, maintain true and complete booksand records with respect to the performance of their obligations hereunder,including without limitation, reports, training assessments, fieldcommunications and directions, communications regarding Adverse Events andcommunications to or from Governmental Authorities, of items underlying allpayment calculations, Net Sales and invoices related to this Agreement or theCo-Promotion Plan (the **“Books and Records”**).

## **7.2      ComplianceWith Laws.**Subjectto OBI’s right to preserve its attorney-client privilege,,****MLNM and/or its authorized agent may, atanytime during the Co-Promotion Term, with prior written notice to OBI andduring normal business hours, perform an audit of the Books and Records of OBIfor the purpose of verifying compliance with Applicable Laws relating toFederal Health Care Programs, other health care compliance laws and relatedindustry guidelines by OBI in connection with the performance by OBI of itsobligations hereunder.  MLNM shall bearthe costs of such audit(s).If MLNM reasonably believes after such an audit thatOBI is not in compliance with such laws or such industry guidelines, then OBIshall take the necessary steps to correct such non-compliance.

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

## **7.4      PaymentAudit. **Each Partywill have the right annually at its own expense to have an independent,certified public accountant, selected by such Party and reasonably acceptableto the other Party, review any Books and Records of the other Party in thelocation(s) where such records are maintained by the other Party uponreasonable notice and during regular business hours and under obligations ofconfidence, for the sole purpose of verifying the basis and accuracy ofpayments made under this Agreement within the prior thirty-six (36) monthperiod.  If the review of such Books andRecords reveals there was a deficiency or overpayment with respect to anyamounts due, then the Party owing payment shall promptly pay to the other Partythe full amount of the deficiency or repay the full amount of the overpaymenttogether with interest calculated in the manner provided inSection 5.6.  If any suchdiscrepancies are greater than five percent (5%) of the amounts actually due,the non-reviewing Party shall pay all of the costs of such review.

 

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# **ARTICLE VIIITERMINATION**

**8.1         ****Termination. **Exceptfor the provisions expressly stated to survive pursuant to Section 14.18 or inthe particular provision, this Agreement shall terminate as follows:

### 8.1.1        Automatically, effective upon the expiration of the Co-PromotionTerm;

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

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

#### (b)           By written notice from the non-breaching Party following amaterial breach of this Agreement by the other Party (other than an OBINon-Performance Breach), where such breach is not cured by the other Partywithin thirty (30) days of written notice of the breach by the non-breachingParty, or if the breach is, by its very nature, not curable, then upon writtennotice by the non-breaching Party;

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

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

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

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

#### (g)           By three (3) months prior written notice from MLNM at anytime following MLNM’s receipt of written notice from OBI that OBI is electingto terminate the Collaboration and License Agreement for convenience inaccordance with the terms thereof; and

#### (h)           By written notice by a Party to the other Party in theevent 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 thanthreshold sales, where threshold sales equal [**] Dollars ($[**]) for eachcalendar quarter of 2007 and [**] Dollars ($[**]) for each calendar quarter of2008; or

 

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###### (B)                                The non-terminatingParty enters into a corporate integrity agreement with a Governmental Authoritythat would require the terminating Party to become a party to such agreement orotherwise would subject the terminating Party to such agreement’s terms.

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

**8.2          Termination for Change in ApplicableLaws.**  In the eventthat a Party becomes “At Risk”, then such Party shall be entitled to elect, bywritten notice to the other Party, to terminate this Agreement effectiveimmediately upon receipt of such notice by the other Party.  A Party shall be “**At Risk**”if:

### 8.2.1        Such Party receives afinal non-appealable determination by a Governmental Authority havingjurisdiction with respect thereto, or there is a change in Applicable Lawrelating to Federal Health Care Programs, in related health care laws orregulations, or in the Act or FDA regulations, which determination or change insuch Applicable Law as applied does, or is likely to, based upon the writtenopinion of legal counsel to the such Party:

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

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

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

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

### 8.2.2        The Parties, using commercially reasonable efforts and actingin good faith to preserve the relationship and the expectations and intent ofthe Parties hereto, are unable to reach a mutual agreement to amend thisAgreement sufficiently to meet the requirements of the determination or changein Applicable Law on or prior to the earlier of (x) the thirtieth (30th) dayfollowing the change in Applicable Law, or (y) the effective date, if any, ofsuch change in Applicable Law.

 

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**8.3          Effect of Termination.**

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

### 8.3.2        Payments.  Uponexpiration or termination of this Agreement, the obligations of MLNM to pay OBIany earned and unpaid amounts pursuant to Sections 5.1, 5.2, and 5.3, to makeTail Payments, if payable, pursuant to Section 5.4, and to pay any other earnedand unpaid amounts pursuant to any other provision of this Agreement shallsurvive except as follows:

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

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

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

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

####  

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#### (i) Call Cost Payments and Variable CostPayments (subject to the maximum amounts set forth in Section 5.1 and 5.2) thathave been earned or are Non-Cancellable through the effective date oftermination and (ii) the Pro-Rata Commission and (iii) as applicable, one ofthe 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 occursafter 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 andon or before December 31, 2008.  Forclarity, no Call Cost Payments, Variable Cost Payments, Commission Payments orTail Payments shall be earned after the effective date of termination.  Notwithstanding anything to the contrary inthis Agreement any termination by MLNM pursuant to Section 8.1.2 (c) shall notconstitute a breach of this Agreement nor entitle OBI to additional remediesother than those specified in this Section 8.3.2(d).

#### (e)           In the event that this Agreement is terminated by OBIpursuant to Section 8.1.2(d)****(i.e.a Change of Control of MLNM) or Section 8.1.3 of this Agreement, then MLNMshall 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 havebeen earned or are Non-Cancellable through the effective date of terminationand (ii) the Pro-Rata Commission.  Forclarity, no Call Cost Payments, Variable Cost Payments nor Commission Paymentsshall be earned after the effective date of termination.  In such event no Tail Payment shall be due orpaid.

#### (f)            In the event that this Agreement is terminated by MLNMpursuant to Section 8.1.2(e)****(i.e.a termination of the Collaboration and License Agreement for any reason otherthan a material uncured breach by MLNM), then MLNM shall be obligated to pay(i) Call Cost Payments and Variable Cost Payments (subject to the maximumamounts set forth in Section 5.1 and 5.2) that have been earned or areNon-Cancellable through the effective date of termination and (ii) the Pro-RataCommission.  For clarity, no Call CostPayments, Variable Cost Payments nor Commission Payments shall be earned afterthe effective date of termination.  Insuch event no Tail Payment shall be due or paid.

#### (g)           In the event that this Agreement is terminated by OBIpursuant to Section 8.1.2(f)****(i.e.a termination of the Collaboration and License Agreement pursuant to a materialuncured breach by MLNM) then MLNM shall be obligated to pay (i) Call CostPayments and Variable Cost Payments (subject to the maximum amounts set forthin Section 5.1 and 5.2) that have been earned or are Non-Cancellable throughthe effective date of termination and (ii) the Pro-Rata Commission.  For clarity, no Call Cost Payments, VariableCost Payments,  nor Commission Paymentsshall be earned after the effective date of termination.  In such event no Tail Payment shall be due orpaid.

#### (h)           In the event that this Agreement is terminated by MLNMpursuant 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 CostPayments (subject to the maximum amounts set forth in Section 5.1 and 5.2) thathave been earned or are Non-Cancellable through the effective date oftermination.  For clarity, no Call CostPayments nor Variable Cost Payments shall be earned after the effective date oftermination.  In such event no CommissionPayments or Tail Payments shall be due or paid.

 

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#### (i)            In the event that this Agreement is terminated by OBI orMLNM pursuant to Section 8.1.2(h) of this Agreement (i.e. an Unexpected MarketEvent) or Section 8.2 of this Agreement (i.e. Change in Applicable Laws), thenMLNM shall only be obligated to pay Call Cost Payments and Variable CostPayments (subject to the maximum amounts set forth in Section 5.1 and 5.2) thathave been earned or are Non-Cancellable through the effective date oftermination.  For clarity, no Call Cost Paymentsnor Variable Cost Payments shall be earned after the effective date oftermination.  In such event no CommissionPayments 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 toforfeit or pay as a Termination Fee pursuant to Section 8.3.2 are intended tobe liquidated damages and not to provide for penalties, that such amounts are areasonable estimation of the anticipated losses that are likely to be sufferedby the applicable Party in the event of a termination of this Agreement basedon the circumstances under which they are to be forfeited, and that the actuallosses 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 Section3.2.5, the consequences set forth in this Section 8.3 are not intended to bethe exclusive remedies of the Parties in connection with the breach of ortermination of this Agreement.  To theextent not otherwise precluded under Section 14.13 of this Agreement, in theevent that a Party terminating this Agreement pursuant to Section 8.1.2(b) or8.1.2(e) has suffered any losses, costs, expenses, damages or penalties as aresult of the actions of the other Party that gave rise to the right oftermination, then the terminating Party may offset the amounts of such losses,costs, expenses or penalties against any amounts owed by the terminating Partypursuant to Section 8.3.2. 

**8.4          Right of First Negotiation**.  In the event of termination of this Agreementby MLNM pursuant to Section 8.1.2(a) (OBI Non-Performance Breach), Section8.1.2(b) (i.e. a material uncured breach by OBI) or by OBI pursuant to Section8.1.2(d)****(i.e. a Change of Control of MLNM),MLNM shall be free to enter into an exclusive or non-exclusive co-promotionagreement with respect to the Product in the Co-Promotion Territory (both asdefined in this Agreement) for a period or [**] months thereafter without anyfurther obligation to OBI under Section 6.2 of the Collaboration and LicenseAgreement with respect thereto.

# **ARTICLE IXRESTRICTIVE COVENANTS**

**9.1          Acknowledgement. **The Parties recognize thatas a result of their relationship pursuant to this Agreement, each Party shallacquire Confidential Information regarding the business of the other Partywhich is extremely valuable to that Party and which would be extremelydetrimental if used outside the scope of this Agreement.  Such Confidential Information may includeinformation about a Party’s employees and other business relations, in which aParty invests substantial time and resources to develop and maintain.  In recognition of the foregoing, and asmaterial inducement to enter into this Agreement, each Party agrees to be boundby the covenants set forth below in this Article IX.

 

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**9.2          Confidentiality.**

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

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

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

#### (c)           is disclosed to the receiving Party by a Third Partyhaving a legal right to make such disclosure without violating anyconfidentiality or non-use obligation that such Third Party has to thedisclosing Party; or

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

### 9.2.2        In addition, if either Party is required to discloseConfidential Information of the other Party by Applicable Law, includingwithout limitation by the rules or regulations of the United States Securitiesand Exchange Commission or similar regulatory agency in a country other thanthe United States or of any stock exchange or NASDAQ, such Party shall provideprior notice of such intended disclosure to such other Party if possible underthe circumstances and shall disclose only such Confidential Information of suchother 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 connectionwith a proposed equity or debt financing of 

###  

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###  

### such Party, or a proposed acquisition orbusiness combination, so long as such recipients are bound in writing tomaintain the confidentiality of such information in accordance with the termsof this Agreement.

### 9.2.3        Each Party agrees that it shall provide or permit access toConfidential Information received from the other Party and such Party’sAffiliates and representatives only to the receiving Party’s and the receivingParty’s Affiliates’ employees, consultants, advisors, sublicensees andsub-distributors who in such Party’s reasonable judgment have a need to knowsuch Confidential Information to assist the receiving Party with the activitiescontemplated by this Agreement and who are subject to obligations ofconfidentiality and non-use with respect to such Confidential Informationsimilar to the obligations of confidentiality and non-use of the receivingParty pursuant to Section 9.2.1; provided that MLNM and OBI shall each remainresponsible for any failure by its and its Affiliates’ respective employees,consultants, advisors and sublicensees and sub-distributors, to treat suchConfidential Information as required under Section 9.2.1 (as if such employees,consultants, advisors and sublicensees and sub-distributors were Partiesdirectly bound to the requirements of Section 9.2.1).

**9.3          Non-Solicitation. **Each Party shall not, andshall cause its Affiliates who are involved in the performance of thisAgreement not to, directly or indirectly solicit for employment any employee ofthe other Party who has been directly involved in the performance of any****obligations of a Party pursuant to this Agreement for aperiod 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 applyto the solicitation of or employment of any person pursuant to any generalsolicitation of employment not specifically directed to any Party’s employees.

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

# **ARTICLE XINTELLECTUAL 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 itsname included on the Core Promotional Materials pursuant to Section 2.4.2, OBIhereby 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 suchpurposes.

** **

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**10.2       ****Ownership of Intellectual Property Rights.**

### 10.2.1      The Product.  TheParties acknowledge and agree that ownership of the rights, title and interestin and to the Product and Product Trademarks, including any form or embodimentthereof, and the goodwill now and hereafter associated therewith shall continueto be governed in accordance with the Collaboration and License Agreement.  MLNM owns the copyright to all the trainingmaterials and Promotional Materials and Product Labels and Inserts.

### 10.2.2      New Intellectual Property.  Each Party shall exclusively own allIntellectual Property developed solely by such Party, its employees, agents andconsultants in connection with this Agreement. The Parties shall jointly own all Intellectual Property developedjointly by employees, agents and consultants of OBI and employees, agents andconsultants of MLNM arising out of or relating to this Agreement, on the basisof 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 anyother materials arising out of the performance by MLNM of its obligations underthis Agreement shall be deemed to be the property of MLNM and shall not bedeemed jointly developed Intellectual Property.

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

# **ARTICLE XIREPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.**

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

**11.2        Consents. **MLNM and OBI eachrepresents and warrants to the other Party that all necessary consents, approvals and authorizations of all GovernmentAuthorities and other persons required to be obtained by it as of the EffectiveDate in connection with the execution, delivery and performance of thisAgreement have been obtained by the Effective Date.

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

**11.4        Enforceability. **MLNM and OBI eachrepresents and warrants to the other Party that, as of the Effective Date, thisAgreement is a legal and valid obligation binding upon it and 

 

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

**11.5        Sales Representatives.**

### 11.5.1      OBI covenants to MLNM that its Sales Representatives in theCo-Promotion Territory shall make no statements, claims or undertakings to anyhealth care professional with whom they discuss or promote the Product that arenot consistent with, nor provide or use any labeling, literature, or othermaterials other than, those Promotional Materials provided and approved for usepursuant to this Agreement.  If, at anytime, MLNM notifies OBI in writing that it no longer approves the use ofspecified Promotional Materials, OBI shall immediately take action to removethe Promotional Materials from use by Sales Representatives and either destroysuch materials or return them to MLNM at MLNM’s expense.

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

### 11.5.3      OBI covenants to MLNM that it shall cause its SalesRepresentatives to comply with all Applicable Laws related to the performanceof its obligations hereunder.  OBI shallmaintain records of the activities of its Sales Representatives and shall allowrepresentatives of MLNM to inspect such records upon request during normal businesshours and upon reasonable prior notice.

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

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

### 11.6.1      Except as disclosed to the other Party prior to the EffectiveDate or made publicly available prior to the Effective Date, there is nomaterial Action pending against, or to the knowledge of the Party, threatenedagainst or affecting the Party by, before or with any of the FDA, Department ofHealth and Human Services, the Drug Enforcement Administration, state Medicaidagencies, or any other federal or state Governmental Authority withjurisdiction over the marketing of pharmaceutical products in the Co-PromotionTerritory;

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

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###  

### and Human Services, (c) has not beenconvicted of any criminal offense relating to the delivery of any item orservice reimbursable under a Federal Health Care Program or relating to themanufacture, distribution, wholesaling, labeling, packaging or marketing ofprescription drugs in the Co-Promotion Territory, and (d) is not, to theknowledge of the Party, a party to or subject to any Action concerning any ofthe matters described in clauses (a) through (c); and

### 11.6.3      Within the last [**] years, the Party has not received anywarning letters, untitled letters or similar correspondence from FDA relatingto the Product.

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

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

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

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

 

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# **ARTICLE XIIINDEMNIFICATION**

**12.1        General****Indemnification.**

### 12.1.1      MLNM shall indemnify and hold harmless OBI, its Affiliates andtheir respective directors, officers, employees and agents (collectively, the **“OBI Indemnified Parties”**), from, againstand in respect of any and all Actions, liabilities, losses, costs (includingcosts of investigation, defense and enforcement of this Agreement), damages,fines, penalties, Government Orders, taxes, expenses or amounts paid insettlement (in each case, including reasonable attorneys’ and experts fees andexpenses), involving a claim or Action of a Third Party or GovernmentalAuthority (collectively, **“Losses”**),incurred or suffered by the OBI Indemnified Parties or any of them as a resultof, arising out of or directly or indirectly relating to: (a) any breach of, orinaccuracy in, any representation or warranty made by MLNM in this Agreement,or any breach or violation of any covenant or agreement of MLNM (includingunder this Article XII) in or pursuant to this Agreement; or (b) the grossnegligence, intentional misconduct or violation of Applicable Law by or ofMLNM, its Affiliates and their respective directors, officers, employees andagents 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, willfulmisconduct or violation of Applicable Law of or by OBI or any of the other OBIIndemnified Parties in connection with OBI’s performance under this Agreement.

### 12.1.2      OBI shall indemnify and hold harmless MLNM, its Affiliates andtheir respective directors, officers, employees and agents (collectively, the **“MLNM Indemnified Parties”**), from, againstand in respect of any and all Losses incurred or suffered by the MLNMIndemnified Parties or any of them as a result of, arising out of or directlyor indirectly relating to: (a) any breach of, or inaccuracy in, anyrepresentation or warranty made by OBI in this Agreement, or any breach orviolation of any covenant or agreement of OBI (including under this ArticleXII) in or pursuant to this Agreement; or (b) the gross negligence, intentionalmisconduct or violation of Applicable Law by or of OBI, its Affiliates andtheir respective directors, officers, employees and agents or any of them inconnection with OBI’s performance under this Agreement, except, in each case,to the extent caused by the gross negligence, willful misconduct or violationof Applicable Law of or by MLNM or any of the other MLNM Indemnified Parties inconnection with MLNM’s performance under this Agreement.

**12.2        Product Liability.**  Any indemnification for claims of productsliability arising under this Agreement shall be governed by Section 11.11(c) ofthe Collaboration and License Agreement; provided, however, that MLNM shallhave no obligation to indemnify the OBI Indemnified Parties for Losses underSection 11.11(c)(iii)(a)(y) of the Collaboration and License Agreement to theextent such Losses were caused by the gross negligence, willful misconduct orviolation of Applicable Law by or of the OBI Indemnified Parties or any of themin connection with OBI’s performance under this Agreement.

 

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**12.3        Notice andControl of Litigation.**

12.3.1      A Person entitled to indemnification under thisArticle XII (an **“Indemnified Party”**) shall giveprompt written notification to the Person from whom indemnification is sought(the **“Indemnifying Party”**) of thecommencement of any Action, suit or proceeding relating to a Third Party claimfor which indemnification may be sought or, if earlier, upon the assertion ofany such claim by a Third Party (it being understood and agreed, however, thatthe failure by an Indemnified Party to give notice of a Third Party claim asprovided in this Section 12.3.1 shall not relieve the Indemnifying Party of itsindemnification obligation under this Agreement except and only to the extentthat such Indemnifying Party is actually prejudiced as a result of such failureto give notice).

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

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

### 12.3.4      The Party controlling such defense shall keep the other Partyadvised of the status of such Action, suit, proceeding or claim and the defensethereof and shall consider recommendations made by the other Party with respectthereto.

### 12.3.5      The Indemnified Party shall not agree to any settlement of suchAction, suit, proceeding or claim without the prior written consent of theIndemnifying Party, which shall not be unreasonably withheld.  The Indemnifying Party shall not agree to anysettlement of such Action, suit, proceeding or claim or consent to any judgmentin respect thereof that does not include a complete and unconditional releaseof the Indemnified Party from all liability with respect thereto or thatimposes any liability or obligation on the Indemnified Party without the priorwritten consent of the Indemnified Party.

# **ARTICLE XIIIDISPUTE RESOLUTION**

**13.1        Escalating; Decision Making Authority.**

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

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Sections 2.2.3, 3.4.2,3.9, or 5.2.2, but not including any issue arising under Section 3.1.2, ArticleV (other than Section 5.2.2), Section 2.4 or the Call Plan, the matter may bereferred to the Steering Committee for resolution at the request of eitherParty.  If the Steering Committee isunable to reach a consensus on the matter within [**] Business Days ofsubmission to the committee, then MLNM shall have the final decision-makingauthority with respect to such matter.

### 13.1.2      In the event the Steering Committee is unable to reachconsensus regarding any matter referred to it with respect to the regarding theMinimum Pre-Commencement Activities (other than the Core PromotionalMaterials), 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 notincluding any issue arising under Section 3.1.2, Article V (other than Section5.2.2), Section 2.4 or the Call Plan, MLNM shall have the final decision-makingauthority with respect to such matter.

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

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

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

**13.2        Arbitration.**

### 13.2.1      Any dispute, claim or controversy arising from or related tothis Agreement or to the interpretation, application, breach, termination orvalidity of this Agreement, including any claim of inducement of this Agreementby fraud or otherwise, shall be submitted for resolution to arbitrationpursuant to the rules then pertaining of the CPR Institute for DisputeResolution for Non-Administered Arbitration (available atwww.cpradr.org/arb-rules.htm), or successor (**“CPR”**),except where those rules conflict with these provisions, in which case theseprovisions control.  ExpeditedArbitration Disputes (as defined below) shall be handled under the provisionsof this Section 13.2 procedure except where a different procedure for suchExpedited Arbitration Disputes as to arbitrator selection and dispensing withappeals to an appellate arbitrator is specified in Section 13.2.  The arbitration shall be held in New YorkCity, New York.

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

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

### 13.2.3       The Parties agree to (a) discuss within thirty (30) days ofinitiation of the arbitration whether they can select the arbitrator(s) bymutual agreement, after which thirty (30) day period either Party shall be freeto refer the selection of the arbitrator(s) to the CPR as provided in Section13.2.4 if such Party is not satisfied that the Parties shall be able to selectthe arbitrator(s) by mutual agreement in a timely manner, (b) to meet with thearbitrator(s) within forty-five (45) days of selection and (c) to agree at thatmeeting or before upon procedures for discovery and as to the conduct of thehearing which shall result in the hearing being concluded within no more thannine (9) months after selection of the arbitrator(s) and in the award beingrendered within thirty (30) days of any post-hearing briefing, which briefingshall be completed by both sides within thirty (30) days after the conclusion ofthe hearings, or within sixty (60) days of the conclusion of the hearings ifthere is no post-hearing briefing.

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

 

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### 13.2.5       In the event the Parties cannot agree upon procedures forconduct of the hearing meeting the schedule set forth in Section 13.2.3, thenthe arbitrator(s) shall set dates for the hearing, any post-hearing briefing,and the issuance of the award in accordance with the Section 13.2.3schedule.  In addition, in the event theParties cannot agree upon procedures for discovery as set forth in subsection13.2.3 above, the arbitrator(s) shall provide that discovery be limited so thatthe Section 13.2.3 schedule may be met without difficulty and so that neitherside obtains more than a total of forty (40) hours of deposition testimony fromall witnesses, including both fact and expert witnesses, or serves more thantwenty (20) individual requests for documents, including subparts, or twenty(20) individual requests for admission or interrogatories, includingsubparts.  In no event shall thearbitrator(s), absent agreement of the Parties, allow more than five (5) daysper side for the hearing or more than a total of ten (10) days for thehearing.  Multiple hearing days shall bescheduled consecutively to the greatest extent possible.

### 13.2.6      The arbitrator(s) must render their award by application of thesubstantive law of the Commonwealth of Massachusetts and are not free to apply “amiablecompositeur” or “natural justice and equity.” The arbitrator(s) shall render awritten opinion setting forth findings of fact and conclusions of law with thereasons therefor stated.  A transcript ofthe evidence adduced at the hearing shall be made and shall, upon request, bemade available to either Party.  Thearbitrator(s) shall have power to exclude evidence on grounds of hearsay(subject to all hearsay exceptions set forth in the United States Federal Rulesof Evidence), prejudice beyond its probative value, redundancy, or irrelevanceand no award shall be overturned by reason of such ruling on evidence.  To the extent possible, the arbitrationhearings and award shall be maintained in confidence.  Except as set forth below, the decision ofthe arbitrator(s) shall be final and not subject to further review, exceptpursuant to the Federal Arbitration Act.

### 13.2.7      In the event the panel’s award with respect to a disputedmatter other than an Expedited Arbitration Dispute exceeds****[**] Dollars ($[**]) in monetary damages,then the losing Party may obtain review of the arbitrators’ award or decisionby a single appellate arbitrator (the **“AppealArbitrator”**) selected from the CPR Panels of Distinguished Neutralsby agreement or, failing agreement within seven (7) Business Days, pursuant tothe selection procedures specified in Section 13.2.4 above for ExpeditedArbitration Disputes, except that the parties may jointly interview the three(3) candidates with the highest combined ranking and exercise one peremptorychallenge each, with the time limits extended fifteen (15) days to accomplishthis.  If CPR cannot provide suchservices, the Parties shall together select another provider of arbitrationservices that can.  No Appeal Arbitratorshall be selected unless he or she can commit to rendering a decision withinforty-five (45) days following oral argument as specified in this Section13.2.7.  Any such review must beinitiated within thirty (30) days following the rendering of the awardreferenced in Section 13.2.6 above.

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

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### submitted by the Parties, opening and replybriefs of the Party pursuing the review, and the answering brief of theopposing Party, plus a total of no more than four (4) hours of oral argumentevenly divided between the Parties.  TheParty seeking review must submit its opening brief and any reply brief withinseventy-five (75) and one hundred-thirty (130) days, respectively, followingthe date of the award under review, whereas the opposing Party must submit itsresponsive 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 Arbitratorshall render a decision within forty-five (45) days following oralargument.  That decision shall be finaland not subject to further review, except pursuant to the Federal ArbitrationAct.

### 13.2.9      The Parties consent to the non-exclusive jurisdiction of theFederal District Court for the district in Boston, Massachusetts for theenforcement of these provisions and the entry of judgment on any award renderedhereunder (including after review of the Appeal Arbitrator where such an appealis pursued).

### 13.2.10      Each Party has the rightbefore or, if the arbitrator(s) cannot hear the matter within an acceptableperiod, during the arbitration to seek and obtain from the appropriate courtprovisional remedies such as attachment, preliminary injunction and replevin,to avoid irreparable harm, maintain the status quo, or preserve the subjectmatter of the arbitration.

**13.3        Jury Trial. **EACH PARTY HERETO WAIVESITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.

**13.4        Attorneys’ Fees. **SUBJECT TO ARTICLE 12,****EACH PARTYHERETO WAIVES ANY CLAIM FOR ATTORNEYS’ FEES AND COSTS AND PREJUDGMENT INTERESTFROM THE OTHER.

# **ARTICLE XIVMISCELLANEOUS**

**14.1        Compliance with Laws.** Each of the Parties covenants to the otherthat it shall comply with all Applicable Laws in connection with theperformance of its obligations under this Agreement.  Unless prohibited by Applicable Laws, eachParty shall promptly share with the other Party any correspondence received bythe first Party from a Governmental Authority that is relevant to thisAgreement.  Unless prohibited byApplicable Laws, each Party shall promptly provide information in such Party’spossession or control to the other Party to the extent such information relatesto this Agreement, and shall otherwise cooperate with the other Party, as maybe reasonably requested by the other Party in order for the other Party tocomply with Applicable Laws, including, without limitation, any state lawreporting requirements regarding sales and marketing, clinical trials, andsimilar or related activities with respect to pharmaceutical products.

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

 

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

**14.3        Equitable****Remedies.**

### 14.3.1      Each Party hereby acknowledges and agreesthat in the event a remedy at law would not be adequate, or money damages couldnot 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 abreach, the Party hereto shall be entitled, in addition to any other right orremedy available to it, to equitable relief in any court of competentjurisdiction, including, without limitation, an injunction restraining suchbreach or a threatened breach, and to specific performance of any suchprovision of this Agreement, and in either case no showing of any actual orpotential damage, or no bond or other security shall be required in connectiontherewith, and the parties hereto hereby consent to the issuance of suchinjunction and to the ordering of such specific performance.

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

**14.4        Notices. **Any notice or report required or permitted to be givenor made under this Agreement by one of the Parties to the other shall be inwriting and shall be deemed to have been delivered upon personal delivery or(a) in the case of notices provided between Parties in the continentalUnited States, four days after deposit in the mail or the Business Day nextfollowing deposit with a reputable overnight courier and (b) in the caseof notices provided by telecopy (which notice shall be followed immediately byan additional notice pursuant to clause (a) above if the notice is of a defaulthereunder), upon completion of transmissions to the addressee’s telecopier, asfollows (or at such other addresses or facsimile numbers as may have beenfurnished in writing by one of the Parties to the other as provided in thisSection 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         |

 

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| 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 Agreementis invalid or unenforceable, or otherwise directly or indirectly affects thevalidity of any other material provision(s) of this Agreement (such invalid orunenforceable provision, a **“Severed Clause”**),this Agreement shall endure except for the Severed Clause.  The Parties shall consult one another and usereasonable efforts to agree upon a valid and enforceable provision that is areasonable substitute for the Severed Clause in view of the intent of thisAgreement.

**14.6        Force Majeure Event.**NeitherParty shall be liable for any default or delay in the performance of itsobligations under this Agreement if and to the extent such default or delay iscaused, 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 reasonableprecautions; and (c) such default or delay could not reasonably be circumventedby the non-performing Party through the use of alternate sources, workaroundplans, or other means.  In the case ofany Force Majeure Event, the non-performing Party shall be excused from furtherperformance or observance of the obligations so affected for as long as suchcircumstances prevail and such Party continues to use commercially reasonableefforts to recommence performance or observance without delay.  Any Party so delayed in its performance shallimmediately notify the Party to whom performance is due by telephone (to beconfirmed in writing within twenty-four (24) hours of the inception of suchdelay) and describe at a reasonable level of detail the circumstances causingsuch delay. If any Force Majeure Event substantially prevents, hinders, ordelays performance by a Party and the performance is not materially restoredwithin thirty (30) days, the other Party may terminate this Agreement uponnotice to such Party.

**14.7        Captions. **All captions herein are forconvenience only and shall not be interpreted as having any substantivemeaning.

 

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

**14.9        Independent Contractors; No Agency.**  Neither Party shall have any responsibilityfor the hiring, firing or compensation of the other Party’s employees or forany employee benefits.  No employee orrepresentative of a Party shall have any authority to bind or obligate theother Party to this Agreement for any sum or in any manner whatsoever, or tocreate or impose any contractual or other liability on the other Party withoutsaid Party’s written approval.  For allpurposes, and notwithstanding any other provision of this Agreement to thecontrary, each Party’s legal relationship under this Agreement with the othershall be that of independent contractor.

**14.10      Submission to Jurisdiction.**  Each Party (a) submits to the exclusivejurisdiction of the state and federal courts sitting in Boston, Massachusetts,with respect to actions or proceedings arising out of or relating to thisAgreement in which a Party brings an action in aid of arbitration, (b) agreesthat all claims in respect of such action or proceeding may be heard anddetermined only in any such court, and (c) agrees not to bring any action orproceeding arising out of or relating to this Agreement in any other court,other than an action or proceeding seeking injunctive relief or brought toenforce an arbitration ruling issued pursuant to Section 13.2.  Each Party waives any defense of inconvenientforum to the maintenance of any action or proceeding so brought and waives anybond, surety or other security that might be required of the other Party withrespect thereto.  Each Party may makeservice on the other Party by sending or delivering a copy of the process tothe Party to be served at the address and in the manner provided for the givingof notices in Section 14.4.  Nothing inthis Section 14.10, however, shall affect the right of any Party to serve legalprocess in any other manner permitted by Applicable Law.

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

 

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**14.12      Publicity.**  Upon the execution of this Agreement, MLNMshall issue a mutually agreed press release regarding the subject matter ofthis Agreement.  After such initial pressrelease, neither Party shall issue a press release or public announcementrelating to the Product or this Agreement without the prior written approval ofthe other Party, which approval shall not be unreasonably withheld, except thata Party may (a) issue such press release or public announcement if the contentsof such press release or public announcement have previously been made publicother than through a breach of this Agreement by the issuing Party and suchpress release or public announcement does not contain the other Party’s name,and (b) issue such a press release or public announcement if required byApplicable Law, including without limitation by the rules or regulations of theUnited States Securities and Exchange Commission or similar regulatory agencyin 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 notpossible to provide notice at least three Business Days in advance) for thesole purpose of allowing the other Party to review the proposed press releaseor public announcement for the inclusion of Confidential Information or the useof its name, providedthat, the Party subject to the requirementshall include in such press release or public announcement made pursuant to theforegoing clause (b) only such information relating to the Product or thisAgreement as is required by such Applicable Law.

**14.13      No Consequential orPunitive Damages.** NEITHER PARTY HERETO SHALL BE LIABLE FORINDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR MULTIPLEDAMAGES 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 ORRELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCHDAMAGES.  NOTHING IN THIS SECTION 14.13IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OFEITHER PARTY WITH RESPECT TO THIRD PARTY CLAIMS.

**14.14      Performance byAffiliates. **To the extent that this Agreement imposesobligations on Affiliates of a Party, such Party agrees to cause its Affiliatesto perform such obligations.  EitherParty may use one or more of its Affiliates to perform its obligations andduties hereunder, provided that the Parties shall remain liable hereunder forthe prompt payment and performance of all their respective obligationshereunder.

**14.5        Amendments; Waivers.**  ThisAgreement may not be amended, supplemented or modified except pursuant to thewritten agreement of bothParties.  Unless set forth in writing bythe Party, no failure, delay or course of dealing on the part of such Party inexercising any right, power or privilege under this Agreement shall operate asa waiver thereof, nor shall any single or partial exercise of any right, poweror privilege under this Agreement by a Party preclude the exercise of any otherright, power or privilege of such Party. Any term or condition of this Agreement may be waived at any time by theParty that is entitled to the benefit thereof, but no such waiver shall beeffective unless set forth in a written instrument duly executed by or onbehalf of the Party waiving such term or condition.  No waiver by any Party of any term orcondition of this Agreement, in any one or more instances, shall be deemed tobe, or construed as, a waiver of the same or any other term or condition ofthis Agreement on any 

 

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futureoccasion.  No notice to, or demand on, aParty in any case shall entitle such Party to any other or further notice ordemand in similar or other circumstances.

**14.16      Third PartyBeneficiaries.**  The provisions of this Agreement are notintended legally to benefit or be enforceable by any Person who is not a Partyto this Agreement (such as any contract holder, service provider, creditor,person who otherwise has any claim against any Party to this Agreement), and nosuch Party shall obtain any right under any such provisions or shall by reasonof such provisions make any claim against a Party to this Agreement.

**14.17      Further Assurances;Cooperation.**  Each of the Parties shall reasonablycooperate at its own expense with the other Party upon reasonable request toeffect the transactions contemplated by this Agreement.

**14.18      Survival.**  Except asotherwise agreed to by the Parties in writing, the following provisions shallsurvive 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 ofgovernment 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 tojurisdiction), 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 (thirdparty beneficiaries), 14.17 (Further Assurances; Cooperation),  14.18 (survival) and 14.19 (cumulativeremedies) and Article V (compensation) (subject to the provisions of Section8.3.2 (payments upon termination)), Article XII (indemnification) and ArticleXIII (dispute resolution) and the applicable definitions in Appendix A.

**14.19      Cumulative Remedies.**  Subjectto the provisions of Section 3.2.5, Section 8.3.2(d) and Section 13.2, therights and remedies of the Parties under this Agreement are cumulative and notexclusive and accordingly, are in addition to, and not in lieu of any otherrights and remedies of the Parties at law or in equity.

 

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**14.20      Execution inCounterparts; Facsimile Signatures. **This Agreement may be executed in counterparts,each of which counterpart, when so executed and delivered, shall be deemed tobe an original, and all of which counterparts, taken together, shall constituteone and the same instrument even if both Parties have not executed the samecounterpart.  Signatures provided byfacsimile transmission shall be deemed to be original signatures.

**(Theremainder of this page is intentionally left blank.)**

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**IN WITNESS WHEREOF**, the Parties have executed this Agreement as ofthe 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 |

 

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**Guaranty**

OrthoBiotech hereby agrees to unconditionally and irrevocably guarantee theobligations and liabilities of OBI under this Agreement, including withoutlimitation OBI’s obligations under Section 14.14 to cause its Affiliates toperform obligations imposed on such Affiliates. Ortho Biotech hereby acknowledges and agrees that (a) OBI and MLNM mayamend or modify this Agreement without the requirement of providing notice ofsuch amendment or modification to Ortho Biotech or of obtaining Ortho Biotech’sconsent thereto and (b) MLNM shall be entitled to interact and deal with OBI onall matters relating to this Agreement (and any modification and amendments)without regard to the guaranty made by Ortho Biotech hereunder, and that ineach such case, the obligations and liabilities of Ortho Biotech under thisguaranty 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   |   |

 

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**Appendix A**

**Definitions**

**“Act”** means theFederal Food, Drug and Cosmetic Act, as amended from time to time, and therules, regulations, guidelines and requirements of the FDA (as hereinafterdefined) 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 thedevelopment of an undesirable medical condition or the deterioration of apre-existing medical condition following or during exposure to the Product,whether or not considered causally related to the Product, the exacerbation ofany pre-existing condition occurring during the use of the Product, or anyother adverse experience or adverse drug experience described in the FDA’sInvestigational 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” shallinclude symptoms (e.g. nausea, chest pain), signs (e.g. tachycardia, enlargedliver) 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 itsexpected pharmacological/biologic effect.

**“Agreement”** has the meaningassigned in the Preamble to this Agreement.

### **“Affiliate”**means,with respect to any Party, any Person controlling, controlled by or undercommon control with such Party.  Forpurposes of this definition, “control” shall mean (a) in the case of a Personthat 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 ofdirectors of such Person and (b) in the case of a Person that is an entity, butis not a corporate entity, the possession, directly or indirectly, of the powerto direct, or cause the direction of, the management or policies of suchPerson, whether through the ownership of voting securities, by contract orotherwise.

**“Annualized Net Sales”**means, with respect to a given calendar year, MLNM’scalculation of the estimated annual Net Salesbased on actual daily average of year-to-date Net Sales.  By way of example, for the 2007 calendaryear, if the actual Net Sales through August 17, 2007 were $[**] then theactual 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 “AnnualizedNet Sales” equals $[**] (i.e.$[**] x 365 days per year).

**“Appeal Arbitrator”** has themeaning assigned in Section 13.2.7 of this Agreement.

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

 

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

**“At Risk”** has the meaningassigned in Section 8.2 of this Agreement.

### **“Average Commission Rate”**means the rate equal to one-half of the sum of (a) the effective commissionrate for calculation of the Commission Payment for 2007 and (b) the effectivecommission rate for calculation of the Commission Payment for 2008.  For purposes of this definition, “effectivecommission rate” for a particular year shall be calculated by dividing  the actual Commission Payment earned by OBIfor such year by actual Net Sales above the baseline Net Sales amountfor such year (which baseline Net Sales amount is $[**] for 2007 and $[**] for2008).

**“Books and Records”** has themeaning assigned in Section 7.1 of this Agreement.

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

**“Call”**means an in-personpresentation of the Product made by a Sales Representative to a MLNM Targetduring which the Sales Representative describes the Product in a fair andbalanced manner consistent with the requirements of this Agreement andApplicable Law and in a manner that is customary in the industry for thepurpose of promoting a prescription pharmaceutical product.  “Calls” shall be deemed to include only fullsales presentations and shall not be deemed to include “reminder” details ore-details, in each case as such terms are generally understood in thepharmaceutical industry, or any presentations made at conventions, consultingprograms or similar gatherings.

**“Call Cost Payment”** has themeaning assigned in Section 5.1.2 of this Agreement.

**“Call Costs”** has the meaningassigned in Section 5.1.1 of this Agreement.

**“Call Plan”**has the meaningassigned in Section 2.2.2 of this Agreement.

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

**“Call Standard”** has the meaningassigned in Section 3.2.1.

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

 

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

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

**“Combination sNDA Filing”**hasthe meaning assigned in Section 3.1.2 of this Agreement.

**“Commission Payments”** has themeaning assigned in Section 5.3 of this Agreement.

**“Competitor”** means a Person (orany Person controlling, controlled by or under common control with such aPerson) that owns or markets, or that is reasonably expected to own or marketduring the Co-Promotion Term, a pharmaceutical product that is in the sametherapeutic class as * *Doxil® (e.g., doxorubicin),  Procrit® (e.g,hematopoietic growth factors) or any other OBI product marketed in theCo-Promotion Territory and/or expected to launch during the Co-PromotionTerm.  For purposes of this definition, “control”means (i) in the case of a Person that is a corporate entity, direct orindirect ownership of fifty percent (50%) or more of the stock or shares havingthe right to vote for the election of directors of such Person and (ii) in thecase of a Person that is an entity, but is not a corporate entity, thepossession, directly or indirectly, of the power to direct, or cause thedirection of, the management or policies of such Person, whether through theownership 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 theCo-Promotion Territory by OBI pursuant to this Agreement and the Co-PromotionPlan through activities normally undertaken by a pharmaceutical company’ssales force to implement marketing plans and strategies aimed at encouragingthe FDA approved use of a prescription pharmaceutical product (including without limitation conductingCalls).  “Co-Promote” and “Co-“Promoting”when used as a verb means to engage in such Co-Promotion.

** “Co-Promotionand Marketing Committee”**has the meaning assigned in Section4.2.1 of this Agreement.

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

**“Co-Promotion Plan”**has themeaning assigned in Section 2.2 of this Agreement.

**“Co-Promotion Representatives”**meanscollectively, all Sales Representatives, District Managers, Regional BusinessDirectors, OBI Trainers and the Co-Promotion Manager and any and all otheremployees of OBI engaged in the Co-Promotion of the Product hereunder or in thetraining and management of employees with respect to their Co-Promotion of the Producthereunder.

**“Co-Promotion Term”**has themeaning assigned in Section 1.3.1 of this Agreement.

 

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“**Co-PromotionTerritory”**means the United States of America not including itsterritories and possessions.

**“Core Promotional Materials”** hasthe meaning assigned in Section 2.4.1 of this Agreement.

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

**“CPR”**has the meaning assignedin Section 13.2.1 of this Agreement.

**“Doxil**®** License”**has the meaning assignedin Section 3.1.2 of this Agreement.

**“Effective Date”**has the meaningset 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 meaningassigned in Section 1.3.2 of this Agreement.

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

**“FederalHealth Care Programs”**has the meaning assigned in Section 11.7.2 of this Agreement.

**“Field Alert”**has the meaningset forth in Section 6.2 of this Agreement.

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

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

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

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

 

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

**“Incentive Payments”** has themeaning assigned in Section 5.2.1 of this Agreement.

**“In Kind Payments”** has themeaning assigned in Section 5.2.2 of this Agreement.

**“Indemnified Party**” has themeaning set forth in Section 12.3.1 of this Agreement.

**“Indemnifying Party”** has the meaningset forth in Section 12.3.1 of this Agreement.

**“Intellectual Property”** meansall (a) patents, patent applications, patent disclosures and inventions; (b)Trademarks, service marks, trade dress, trade names, logos and corporate namesand registrations and applications for registration thereof together with allof the goodwill associated therewith; (c) copyrights (registered orunregistered) and copyrightable works and registrations and applications forregistration thereof; (d) mask works and registrations and applications forregistration thereof; (e) computer software (excluding off-the-shelfsoftware 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, withoutlimitation, ideas, formulas, compositions, inventions (whether patentable orunpatentable and whether or not reduced to practice), know-how, manufacturingand production processes and techniques, research and development information,drawings, specifications, designs, plans, proposals, technical data,copyrightable works, financial and marketing plans and customer and supplierlists and information); (h) other intellectual property rights; and (i) copiesand tangible embodiments thereof (in whatever form or medium).

**“Losses”** has the meaningassigned in Section 12.1.1 of this Agreement.

**“Measurement Period”**means theeach of the following periods:

#### (a)           April1, 2007 through June 30, 2007;

#### (b)           July1, 2007 through September 30, 2007;

#### (c)           October1, 2007 through December 31, 2007;

#### (d)           January1, 2008 through March 30, 2008;

#### (e)           April1, 2008 through June 30, 2008;

#### (f)            July1, 2008 through September 30, 2008; and

#### (g)           October1, 2008 through December 31, 2008.

 

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**“MinimumCommitment”** has the meaning assigned in Section 3.2.2 of thisAgreement.

**“Minimum Frequency”**has themeaning set forth in Section 3.2.2 of this Agreement.

“**Minimum Pre-Commencement Activities**” means:

### (a)           The Target List and the Call Planshall have been developed and agreed upon by the Parties as contemplated inSections 2.2.1 and 2.2.2, respectively;

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

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

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

(e)           TheSales Representatives shall have substantially completed their “home study”requirements and shall have had training with respect to obligations to handleAdverse Event reporting and Product Medical Inquiries to the reasonablesatisfaction of MLNM.

**“MLNM”**has the meaning assignedin the preamble to this Agreement.

**“MLNM Indemnified Parties”** hasthe meaning assigned in Section 12.1.2 of this Agreement.

**“MLNM Target”**means any FirstPosition Target or Second Position Target.

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

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

**“NDA”**means New DrugApplication.

**“Net Sales”**means, with respectto the Product, the grossinvoiced sales of the Product byMLNM, its Affiliates and its sublicensees in the Co-Promotion Territory and PuertoRico to non-sublicensee Third Parties, less good faith estimates of thefollowing deductions to the extent specifically relating to sales of the Product, which shall be adjustedto actual on a periodic basis (no less frequently than annually), of:

 

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#### (a)           discounts,credits, retroactive price reductions, rebates, refunds, chargebacks,allowances and adjustments granted to non-sublicensee Third Parties, includingMedicaid, managed care and similar types of rebates, and provisions for baddebts 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 feespaid to distributors (other than to a distributor that is an Affiliate ofMLNM);

#### (c)           sales,excise, turnover, inventory, value-added, and similar taxes assessed on thesale of theProduct (other than income taxes of MLNM, its Affiliates orsublicensees), and import and customs duties;

#### (d)           transportation,importation, shipping insurance, postage, customs clearance, freight and otherhandling expenses;

#### (e)           governmentimposed rebates or discounts;

#### (f)            theportion of any management fees paid during the relevant time period to grouppurchasing organizations; and,

#### (g)           anyinventory management fees.

Sales of Product by and between MLNM and itsAffiliates and sublicensees are not sales to Third Parties and shall beexcluded 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 oftermination of this Agreement, (2) is covered under Section 5.2 of thisAgreement, and (3) for which OBI uses commercially reasonable efforts to, atthe 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 assignedin the preamble to this Agreement.

**“OBI Indemnified Parties”** hasthe meaning assigned in Section 12.1.1.

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

**“OBI Trainers”**has the meaningassigned in Section 2.3 of this Agreement.

**“OBI Sales Force”** has themeaning assigned in Section 3.3.2 of this Agreement.

**“Ortho Biotech”**has the meaningassigned in the first recital of this Agreement.

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

 

53

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

**“Pre-Commencement Period”**hasthe meaning assigned in Section 1.3.1 of this Agreement.

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

**“Product Copyrights”**shall meanall copyrightable subject matter included in the Product Labels and Inserts,the Promotional Materials, and the Product training programs and materialsdeveloped and produced in accordance with this Agreement.

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

**“Product Medical Inquiries”** hasthe meaning set forth in Section 3.8.1 of this Agreement.

** “ProductTrademark”**shall mean any Trademark (as hereinafter defined)that includes the name “VELCADE”, or any other Trademark under which MLNM sellsthe Product  in the Co-PromotionTerritory.

**“Promotional Materials”** has themeaning 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 ofCommission Payment earned up to the effective date of termination for thecalendar year in which this Agreement is terminated pursuant to Section 8.1 ofthis Agreement, as determined by (i) multiplying the amount of the CommissionPayment that would be payable in the applicable calendar year based onAnnualized Net Sales of that year by the number of days elapsed prior to theeffective date of termination in such calendar year and (ii) dividing thisamount by 365.  By way of example, if theAnnualized Net Sales in 2007 were $[**] and the effective termination date wasAugust 17, 2007, then the amount of Commission Payments earned for 2007 payableon Annualized Net Sales in 2007 would equal $[**].  The Pro Rata Commission would equal ($[**] x229) ÷ 365 = $[**].

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

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

 

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**“Sales Representative”**means anindividual who is regularly employed by OBI****on a full-timebasis as a member of its oncology field sales force, whose skills, training andexperience are consistent with industry standards applicable to theCo-Promotion of an oncology pharmaceutical product, and who, following thecommencement of the Co-Promotion Term, shall have (a) satisfactorily completedthe sales training described in this Agreement and the Co-Promotion Plan and(b) have become adequately equipped and knowledgeable with respect to theProduct, including the Product Label and Insert and the use of the CorePromotional Materials and any Promotion Materials provided to OBI to make Callsregarding the Product to MLNM Targets all in a timely manner in accordance withthis Agreement and the Co-Promotion Plan.

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

**“Second Position Target”** meansone of no more than [**]****physicians andother health care professionals in the Co-Promotion Territory with prescribingauthority for oncology products in the Co-Promotion Territory who is designatedas such on the Target List who shall receive a Second Position Call.

**“Severed Clause”** has the meaningassigned in Section 14.5 of this Agreement.

**“Steering Committee”**has themeaning assigned in Section 4.1.1 of this Agreement.

**“Tail Payment”** has the meaningassigned in Section 5.4.1 of this Agreement.

**“Target List”**has the meaningset 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 anyApplicable Laws.

 **“Third Party”** means any Person other than a Party or any ofits Affiliates.

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

**“Training Plan”**has the meaningassigned in Section 2.3 of this Agreement.

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

**“Variable Cost Payments”** has themeaning assigned in Section 5.2 of this Agreement.

 

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** **

**Appendix BCo-Promotion Plan**

** **

  

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** **

**MILLENNIUM PHARMACEUTICALS, INC.**

**and**

**ORTHO BIOTECH INC.**

CO-PROMOTION PLAN

APPENDIX B

Pursuant to the terms ofSection 2.2 of the Co-Promotion Agreement by, and between, MillenniumPharmaceuticals, Inc. (MLNM) and Ortho Biotech, Inc. (OBI) dated October 25,2006 (the “Agreement”), this Co-Promotion Plan is approved by the Co-Promotionand Marketing Committee  (“CPMC”) onJanuary 12, 2007, attached hereto and incorporated into the Agreement asAppendix B.  This Co-Promotion Plan shallbe in effect upon approval by the CPMC. To the extent anything in the Call Plan is inconsistent with theCo-Promotion Agreement it amends, the terms of the Co-Promotion Agreement shallgovern.

Capitalized terms usedbut not defined herein shall have the same meaning given to them in theAgreement.

The CPMC herebyapproves the attached Co-Promotion Plan.

Agreed to by theCPMC 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

 

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The processes describedherein may be modified from time to time to meet the needs of both partiesafter review and approval by the CPMC pursuant to Section 2.2 of the Agreement.

**I. Target List**

MLNM has provided OBIwith a Target List per Section 2.2.1 of the Agreement.  The Target List is attached to thisCo-Promotion Plan as Appendix A.

Target List Format

The Target List was formatted as an Excel spreadsheet and delivered byDirector, Commercial IT at MLNM to a dedicated OBI/MLNM ftp site hosted by OBIand 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

·                  DemoteCandidates

Development of Call Plan by OBI:

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

·                  OBI will comparethe Target List to its existing customer list of oncology health careproviders.

·                  The MLNM Targetson the Target List that are identified on OBI’s existing customer list ofoncology health care providers will be assigned to the applicable OBI salesrepresentative.  MLNM Targets that arenot listed on OBI’s existing list of oncology health care providers will besent to the OBI sales  representatives

·                  The OBI willinstruct its sales representatives to work with their MLNM sales representativecounterparts to validate the existence and location of the applicable MLNMTargets.  Counterparts will be identifiedthrough the shared rosters as laid out in this Co-Promotion Plan.

·                  If OBI, afterreasonable efforts and after consulting with MLNM, is unable to locate aparticular MLNM Target, MLNM will replace that MLNM Target with another MLNMTarget

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

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

 

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

Semi-Annual Updates to the Target List 

Every May 15 andNovember 15 MLNM will provide to OBI a new Target List pursuant to section2.2.1 of the Agreement in the same format as the original Target List unlessmutually agreed upon by the parties.

OBI will followthe above process to validate the Target List thereby developing a Target Listfor 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 Planfollowing approval by the CPMC and will replace the immediately preceding TargetList.

**II. CallPlan**

DistributeCall 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 managementSiebel database.  Additionally OBI willidentify all MLNM Targets in the Siebel system with a “Home Office Rating”(H.O. rating) and a “Call Goal”.   OBIwill assign a First Position Target a H.O. rating of VELCADE 1 and a SecondPosition Target a  H.O. rating of VELCADE2.  OBI will assign each MLNM Target aCall Goal of [**] calls per calendar quarter.

## **Figure 1: Sample Siebel Screen:****(does not represent actualscreen)**

[**]

 

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Semi-Annual Updates to the Call Plan

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

OBI will provide all OBISales Representatives with a copy of the most current Call Plan in the nextavailable production run of the Siebel Assignment Manager System after approvalby the CPMC.

New Indications

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

SalesDirection:

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

# CallPlan Reporting

OBI will send a varietyof weekly reports to its sales representatives and sales management to helpthem monitor their progress to the Call Plan.

OBI sales management willreceive reports that will help monitor District and Territory level Call Planperformance and will alert them to underperforming areas.

**Figure 2: Illustration of Call PlanPerformance Report: does not represent actual report**

[**]

**III. Sales Training**

The approved and signedsales training plan is attached as Appendix C.

**IV. Promotional Material**   

MLNM will develop proposed Core Promotional Materials (CPM)

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

·                  CPM materials will be reviewed byMLNM in accordance with the MLNM promotional materials standard operatingprocedure

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

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

·                  MLNM will provide OBI AllianceManager:

·                  Notification of expected review dateby MLNM

·                  Targeted delivery date to OBI forreview

Upon approval, MLNM willsubmit the following to OBI Alliance Manager:

 

4

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·                  A PDF of the CPM piece

·                  Twelve copies of the final draft CPMlayout, with three sets of annotated references, folded 8 1/2 X11".  A minimum of 3 CPM layoutsmust be in color and printed on non-glossy paper.

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

·                  Layout and manuscript must match ifboth are submitted.

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

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

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

OBI Alliance Manager will:

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

·                  All materials submitted for reviewrequire a promotional code.  Contactsalessupply@obius.jnj.com to request form and instructions.

·                  Complete Promotional ReviewSubmission Cover Sheet

·                  Provide the following information forthe Promotional Review submission:

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

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

·                  Target audience

·                  Documentation of approval from MLNMPromotional Review Committee for OBI use of the materials that is consistentwith the usage and target audiences specified to the OBI Promotional ReviewCommittee.

·                  Seibel Key Communication Point andSiebel Key Message

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

·                  Ensure delivery of twelve completesets of draft CPM and 3 sets of annotated references to Advertising and PromotionManager either hard copy or electronic to: promotialreview@prdus.jnj.commailbox

·                  Annotated references are fordistribution to Medical, Regulatory and Alliance Manager

·                                                                      Coordinatewith MNLM Alliance Director a joint meeting of representatives of bothcompanies to provide OBI feedback on Core Promotional Materials

·                  This meeting must be scheduled tooccur [**] business days from receipt of approved Core Promotional Materialsfrom MNLM

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

·                  OBI

·                  OBI Alliance Manager

·                  OBI Regulatory Advertising andPromotion

·                  OBI Medical Director

·                  MNLM

·                  MLNM Promotional Material Review Team(“PMRT”)

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

·                  Documentation of plan by MNLM fortimely notification to OBI of discontinuation or required changes to CorePromotional materials

 

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

·                  OBI Advertising and Promotion Managerwill:

·                  Schedule the piece for PRC reviewincluding 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 Materialprior to use by the OBI sales organization. Those members non-bolded are not required to approve the CPM prior touse by the OBI Sales organization.

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

·                  Summarizeand document all comments on behalf of OBI to be provided to MNLM with regardto the CPM.

·                  EnsureMLNM Core Materials are scheduled for 12-month review process

·                  Joint MLNM and OBI Review Committeewill:

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

·                  Facilitate formal sign off on finalmaterials

 

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**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 weremade during the previous calendar month.  The Excel file will betransmitted automatically to a dedicated OBI/MLNM ftp site hosted by OBI [**]via the Johnson & Johnson NCS Secure File Transfer System and will containthe 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 theproduct on the call

·                  The communication/message point usedduring the call

·                  Thematerials used during the call

Quarterly Call Report

OBI will also provide to MLNM,each quarter, data summarizing the Call activity for the calendar quarter, nolater than [**] days after the end of that quarter.  The data will be sent electronically to adedicated OBI/MLNM ftp site hosted by OBI [**] in Excel format.

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

·                  the number of First Position Calls bymonth

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

·                  Calls eligible for Minimum Frequencycalculations

·                  Reach Attained

·                  Calls eligible for reimbursement

·                  Calculatedpayment due

 

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Sales Reports

**Weekly VELCADE Sales Data to TrinityPartners, LLC**

MLNMand OBI have entered into an arrangement for the purpose of having TrinityPartners, a vendor with whom OBI has a contract services agreement for datareporting services, provide sales data reporting services to OBI in fulfillmentof Millennium’s obligation to provide such information to OBI.  OBI willbe responsible for compensating Trinity Partners for the services it providesin connection with the co-promote agreement.  A copy of the agreementbetween Millennium and Trinity Partners as well as the letter of agreementbetween Millennium and OBI are attached to the Co- Promotion Plan as AppendicesD and E, respectively.

Toassist Trinity Partners in its performance of these services, MLNM has agreedto provide, by noon on the [**] business day of each calendar quarter, TrinityPartners with a transaction level sales data file containing VELCADE sales TheMLNM file will be transmitted automatically via ftp over a secure VPN tunneland 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 provideTrinity and OBI a master VELCADE account file by noon on the [**] business dayof each calendar week. The file is to provide an update on any organizationdata 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 |
|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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**Ongoing VELCADE Sales Account Matching Process**

Millennium and OBI have conducted a preliminary organization andprofessional matching exercise. The parties will continue to reconcileorganizations and professionals on an ongoing basis. This is to ensure thatsales are being properly credited to the correct OBI sales personnel and forcross company data consistency.

 

**Sales Reports**

Trinity will then processthat data to create individual sales reports for each and every OBIterritory.  These weekly reports will bemade available to the OBI Sales Representatives via a secure web page, hostedby Trinity, that the OBI Representatives and District Managers will accessusing individual passwords.

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

Millennium fieldpersonnel will not share their sales reports with their OBI counterparts due topotential differences in territory alignments and sales credit allocations.

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

 

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**Monthly VELCADE Sales Reports****from Trinity**Trinity, on OBI’s behalf will generate and distribute VELCADE sales reports aslaid out in the Data Use Agreement between MLNM and Trinity Partners (AppendixD).  Millennium field personnel will notshare their sales reports with their OBI counterparts due to potentialdifferences in territory alignments and sales credit allocations.

Millennium will passthrough to OBI any competitive sales data sharing costs charged by WoltersKluwer Health at the request of OBI.

**Quarterly VELCADE Product Sales Reports for OBISales Operations**

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

**Initial VELCADE Sales Data to TrinityPartners, LLC for OBI POAI**

Trinity Partners willgenerate a one-time report in PDF form only for the OBI territory and districtmanagers for use at the OBI POAI.  To support this process, MLNM willprovide to Trinity a transaction level sales data file containing VELCADE salesfor Q405 — Q306.  The file will be transmitted automatically via ftp overa 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 |

 

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**Sales Rosters**

On the first day of eachcalendar month, MLNM will provide to OBI a MLNM Sales Force Roster datafile.  The file will be transmitted to a dedicated OBI/MLNM ftp sitehosted by OBI [**] via the Johnson & Johnson NCS Secure File TransferSystem with contact information for the MLNM field force.  This MLNM Sales Force Roster data file willcontain the following fields:

·                  Territory Number & Name

·                  Region Number & Name

·                  Area Number & Name

·                  Contactinformation for level:  Name, Email, Office Phone, Title

On the first day of eachcalendar month, OBI will provide to MLNM an OBI Sales Force Roster datafile.  The file will be transmitted to a dedicated OBI/MLNM ftp sitehosted by OBI [**] via the Johnson & Johnson NCS Secure File TransferSystem with contact information for OBI Sales Representatives.  This OBI Sales Force Roster data file willcontain 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)

·                  Contactinformation for level:  Name, Email, Phone

The roster informationwill be used by Sales Force personnel to identify their respective counterpartsand facilitate communication between the two sales forces.

The MLNM and OBI SalesForce Roster files are confidential.

**Territory Alignments**

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

·                  Zip Code

·                  City

·                  State

·                  TerritoryNumber & Name

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

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

·                  OBIidentifier for the Physician

 

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**List ofAppendices**

**Appendix A                                                                                                                                                                                                                                                                           TargetList (Electronic file)**

**Appendix B                                                                                                                                                                                                                                                                           QuarterlyCall Report**

**Appendix C                                                                                                                                                                                                                                                                           SalesTraining Plan**

**Appendix D                                                                                                                                                                                                                                                                           Millenniumand Trinity Partners Agreement**

**Appendix E                                                                                                                                                                                                                                                                            Millenniumand OBI Agreement**

 

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AppendixA

 

| **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 omittedand filed separately with the Securities and Exchange Commission.  [**]**

** **

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**AppendixB**
| 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** | ** ** |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               | [**]             |                                | [**]             |       |                                |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   | [**] |   |
| [**]                          |                               |             |                                |             |       |                                |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |

 

**Reachand 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                            |       |       |       |                     |       | [**]                       |       |             |       | [**]                      |       | [**]                                             |       | [**]               |       | [**]              |       | [**]               |       | [**]              |       |

 

**CallCost 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                      |       | [**]                                   |       | [**]                                    |       |                   |       |             |       |                   |       |

 

*Subjectto provisions of Section 3.2 of the co-promotion agreement*

 

----

**MILLENNIUM/OBI CO-PROMOTION**

SALES TRAININGPLAN

----

**APPENDIX C**

----

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

Capitalized termsused but not defined herein shall have the same meaning given to them in theAgreement.

This training planwill become effective upon approval and agreement by representatives of eachParty.

| Millennium  Pharmaceuticals, Inc    |   | Ortho Biotech, Inc. |
|-------------------------------------|--------|---------------------|
|                                |   |                |
|                                |   |                |
|                                |   |                |
|                                |   |                |
|                                |   |                |
| Grant Bogle                         |   | Lou Ferrari         |
| SVP, Oncology Sales & Marketing |   | VP, Sales           |

2006 Approved Training Plan

November 24th, 2006

----

 
|  |
|--|

----

 

CO-PROMOTIONTRAINING PLAN

21-NOV-06

----

APPENDIX C

----

----

----

**EXECUTIVE SUMMARY**

----

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

OBI is responsiblefor providing a sufficient number of OBI Trainers to train all OBI SalesRepresentatives and for ensuring that the OBI Sales Force is trained inaccordance with this Training Plan.

MLNM will providea minimum of one copy of all training materials for use by OBI solely inconnection with the training of OBI Trainers and Sales Representatives. OBI hasthe right to reproduce these training materials and to provide copies to OBITrainers and Sales personnel, only.

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

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

MLNM will providesupplementary training to OBI Trainers as deemed necessary and appropriate byMLNM during the term of the Agreement, for example in regards to any newlyapproved indication for VELCADE.  Inturn, OBI trainers will then deliver such additional training to all members ofthe OBI Sales Force.

----

**TRAININGOBJECTIVES**

----

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

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

·                  Effectivelydeliver the core message surrounding VELCADE in the treatment of multiplemyeloma and mantle cell lymphoma, as determined by MLNM.

·                  Successfullyaddress VELCADE objections.

·                  Appropriatelyreport, and respond to, reports of possible adverse events, product complaintsand unsolicited requests for information.

----

----

**TRAININGMODEL**

----

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

The actualtraining consists of four phases:

1.               HomeStudy

2.               WEBEXTraining

3.               [**]Live Training

4.               [**]Practical Application

----

**TRAININGSCHEDULE**

----

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

**October 28****th****, 2006:  **[**].

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

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

**November 28****th****, 2006:  **[**].

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

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

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

**OBITraining of OBI Sales Force with support from MLNM**

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

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

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

**January25****th,2007:**[**].

----

----

**TRAININGCONTENT**

----

 

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 ofaction

·      The disease of multiple myeloma

·      The current myeloma market

·      The Crest/029 clinical trials in relapsedand refractory multiple myeloma

·      The APEX phase III clinical trial inrelapsed and refractory multiple myeloma

·      The PINNACLE clinical trial in mantle celllymphoma

·      Competition in the multiple myeloma market

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

·      Pricing and reimbursement in the multiplemyeloma market.

·      Potential adverse events associated withmultiple myeloma therapies and all obligations around the reporting of suchevents.

Inaddition, all OBI Sales personnel will be able to:

·      Effectively deliver the core messagesurrounding VELCADE in the treatment of multiple myeloma and mantle celllymphoma, as determined by MLNM.

·      Successfully address VELCADE objections.

·      Appropriately report and respond toreports of possible adverse events, product complaints and unsolicited requestsfor information

----

# **trainingmaterials**

----

 

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

1.               Training Objectives

2.               Home Study Agenda

3.               Module 1:  **“Overview of Tumor Typesand Their Treatments”**

4.               Module 2: ** “Multiple Myeloma”**

5.               Module 3: ** “VELCADETM (bortezomib) forInjection**

----

6.               A section on **Clinical Data**which comprised copies of the followingdocuments:

[**]

7.               A section on **Competitor**Information which comprised copies of thefollowing documents:

[**]

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

a.               [**]

----

**TRAININGVALIDATION**

----

 

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

The training ofthe OBI Sales Force will also be validated via a series of learning assessments(quizzes and tests).  These learningassessments 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, thatall OBI Sales personnel receive the training and assessments as outlined inthis plan and meet the current standards of OBI applicable to otherpharmaceutical products and the applicable industry standards for comparablepharmaceutical products.

----

**AppendixD**

**DATA USE AGREEMENT**

THIS DATA USE AGREEMENT (including Exhibit A) (the “Agreement”) isbetween Millennium Pharmaceuticals, Inc. (“Millennium”), whose business addressfor all purposes related to this Agreement is 40 Lansdowne Street, Cambridge, Massachusetts02139; and Trinity Partners, LLC (“Trinity”), whose business address for allpurposes related to this Agreement is 230 Third Avenue, Prospect Place,Waltham, MA 02451.  Millennium andTrinity may each be individually referred to herein as a “Party” and may becollectively referred to as the “Parties.”

BACKGROUND

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

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

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

In consideration of the mutual promises set forth herein and attachedhereto, the Parties agree to be bound by the terms and conditions of thisAgreement and have caused this Agreement to be executed by their dulyauthorized representatives.

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

2.             Trinity License,Use and Restrictions.

(a)           Licenseand Use.  Subject to the terms andconditions of this Agreement, Millennium hereby grants to Trinity the limited,non-exclusive, non-transferable right during the Term to use Millennium Datafor the sole purpose of compiling VELCADE sales data reports within the OBIsales force alignment and providing such reports to OBI as set forthherein.  Trinity will maintain theMillennium Data in a secure database, as set forth in Exhibit A,****segregated from other data it is compiling on behalf of orreporting to OBI.  Trinity will providethe VELCADE sales data reports on weekly and monthly basis in a non-editableformat to the OBI sales operations and field sales personnel mutually agreedupon by Millennium and OBI and provided to Trinity.  Millennium will have access to the reportsthat are provided to OBI.

(b)           Restrictionson Use.  Trinity will not aggregateMillennium Data within the current quarter beyond the mutually agreed uponlevel, except for the quarterly data file. Trinity will not use or disclose the Millennium Data, including withoutlimitation to OBI, except as

----

expresslypermitted herein, without the express prior written consent of Millennium.  Trinity will not disseminate information thatwould allow for the compilation of national sales data within a currentquarter.  Millennium Data will only bedisclosed 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 Trinityfor any services that it performs in connection with this Agreement.  Millennium will have no obligation tocompensate Trinity.

4.             Confidentiality.

(a)           Definition.** **The term****“Confidential Information” includes all information thatMillennium treats as confidential or proprietary, including without limitationthe Millennium Data, whether or not labeled “Confidential,” in any format orcompilation.

(b)           TrinityConfidentiality Obligation.  Trinityacknowledges that Millennium is and will remain the sole owner of theConfidential Information.  During theterm of this Agreement and thereafter, Trinity will take all commerciallyreasonable precautions to protect the confidentiality of ConfidentialInformation, and will not disclose or use any Confidential Information exceptwith Millennium’s knowledge and as necessary to perform its obligationshereunder.  In particular, Trinity maydisclose Confidential Information to its employees who need to know suchConfidential Information in order to perform Trinity’s obligations hereunderand who are obligated to protect the confidentiality of such ConfidentialInformation under terms substantially similar to those set forth in thisSection 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 Trinityreasonably cooperates with Millennium to obtain confidentiality protection.

5.             Expiration andTermination.

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

(b)           Terminationby Millennium.  Millennium mayterminate this Agreement at any time upon thirty (30) days’ prior writtennotice to Trinity.  In addition,Millennium may terminate immediately upon written notice to Trinity if Trinitybreaches this Agreement.

(c)           Terminationby Trinity.  Trinity and/or OBI mayterminate this Agreement upon thirty (30) days’ prior written notice toMillennium if Millennium breaches this Agreement and fails to cure the breachduring the notice period.

(d)           Effectof Termination or Expiration.  Upontermination or expiration of this Agreement, neither Party shall have anyfurther obligations under this Agreement, except that Trinity will immediatelyreturn to Millennium all Confidential Information and Trinity will erase ordestroy any copies of Millennium Data from all media, disk files and datasystems and shall, upon Millennium’s request, deliver to Millennium a statementfrom an individual having sufficient knowledge of this Agreement and the statusof Millennium Data, certifying that Millennium Data has been erased from allstorage media of Trinity.

----

(e)           Survivalof Certain Terms.  The Partiesacknowledge that some obligations in this Agreement will survive the expirationor any termination of this Agreement, particularly obligations within theRestrictions on Use, Confidentiality, and Indemnification sections.

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

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

8.             Miscellaneous.

(a)           Nopartnership or Employment Relationship. This Agreement does not create a partnership or employment relationshipbetween the Parties.

(b)           Publicity.  Neither Party may use the other Party’s namein 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’sability to use the other Party’s name in filings with the Securities andExchange Commission, Food and Drug Administration, or other governmentalagencies, when required to do so.

(c)           Notice.  All notices must be written and sent to theaddress 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, withoutthe prior written consent of the other Parties. However, Millennium may assign this Agreement, in whole or in part, to asubsidiary, or in connection with a merger, consolidation, or a sale ortransfer of all or substantially all of the assets to which this Agreementrelates.

(e)           EntireAgreement.  This Agreementconstitutes the entire agreement of the parties with regard to its subjectmatter, and supersedes all previous written or oral representations, agreementsand understandings between the Parties

----

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

 (g)          Applicable Law.  This Agreement will be governed by, andconstrued in accordance with, the law of the Commonwealth of Massachusetts,without regard to any choice of law principle that would dictate theapplication 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**

**OperatingGuidelines**

TheseOperating Guidelines will be incorporated into the Data Use Agreement betweenand among Millennium Pharmaceuticals, Inc. (“Millennium”), Ortho BiotechProducts, LP (“OBI”) and Trinity Partners, Inc. (“Trinity”). Capitalized termsnot otherwise defined in this Operating Guidelines will have the same meaningas set forth in the Agreement.

In performingtheir obligations under the Agreement, the Parties will follow these OperatingGuidelines. The operating guidelines can be updated and modified as mutuallyagreed upon by the parties.

**1.0 DataReceipt from Millennium**

1.1                     Millenniumwill send raw VELCADE sales data to Trinity through a mutually agreed upon FTPserver.

1.2                     Data will besent on weekly, monthly and quarterly basis.

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

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

1.2.3                                    Quarterlydata 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 Millenniumpublic earnings release for the current quarter. The file will contain arolling 4 quarters worth of data.

1.3                     Millenniumdata files will contain at minimum sales within the specified time period invials by account. Additional data fields will be mutually agreed upon by OBIand Millennium.

**2.0****      ****Millennium Data Processing and Security by Trinity**

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

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

----

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

toinclude mix of numbers, mixed case letters and special characters) as these areless easy for others to deduce, and 

regular changes of passwordshall be enforced.

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

2.4                     To avoid unencrypted interceptions of data on Millennium data or reporttransfers between Trinity and OBI, secure file or data transfer methods must beused:  Secure File Transfer Protocol orSecure VPN.

**3.0 Sales Structure Mapping**

3.1                     To ensure sales on a weekly and monthly basis are not aggregated abovethe OBI District level unless expressly consented to by Millennium; the Partiesagree 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                   TheParties acknowledge that any OBI personnel receiving current aggregated salesdata above the District level within the current quarter will be considered tohave inside information and subject to Section 6 of the Agreement.

**4.0 Contact Information**

**Millennium Pharmaceuticals, Inc.**

MillenniumPharmaceuticals, Inc.

40 Landsdowne Street

Cambridge, MA02139

Main TelephoneNumber: 1-617-670-7000

VELCADE CommercialOperations

Amy Winnen

Senior Manager,Commercial Operations

Telephone Number:1-617-444-1343

Fax Number: 1-617-679-7474

----

VELCADE CommercialData Warehouse

Sue Corwin

Senior Manager,Information Technology

Telephone Number:1-617-551-3982

**Trinity**

TrinityPartners, LLC

230Third Avenue

Waltham,MA 02451

Main Telephone number 781-487-7300

GlennWong

Directorof Operations

Telephone Number: 1-781-487-7300 x104

ZackaryKing

Directorof Technology

Telephone Number: 1-781-7300 x132

**OBI**

OrthoBiotech Products LP

POBox 6914

430Rt. 22

East Bridgewater, NJ 08807-0914

AmyRicca

Director,Sales Measurement

Telephone Number: 1-908-541-4876

ScottWearley

InformationManagement Lead

Telephone Number:1-908-541-4629

----

**AppendixE**

December 21, 2006

Brian MartinOrtho Biotech Products, L.P.P.O. Box 6914430 Route 22East Bridgewater, NJ  08807-0914

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

Dear Mr. Martin:

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

1.               Millennium willfulfill its obligation to provide VELCADE® (bortezomib) forInjection sales data reports to OBI by providing raw sales data to TrinityPartners, L.L.C. (“Trinity”) and having Trinity perform the activitiesdescribed in the Data Use Agreement, dated December 20, 2006, betweenMillennium and Trinity.  The Data UseAgreement is attached to this letter of agreement as an exhibit.  Trinity will provide weekly, monthly andquarterly VELCADE sales data reports (“Millennium Data”) to OBI as set forth inthe Data Use Agreement.

2.               OBI may use theMillennium Data for the purpose of determining incentive compensation andaccount planning activities for OBI sales representatives and for the purposeof better understanding VELCADE:Doxil combination usage.  OBI will not aggregate the Millennium Data ata national level for the prior quarter only after Millennium’s quarterlyearnings release.

3.               OBI will be solelyresponsible for compensating Trinity for the services it performs under theData Use Agreement.  Millennium will haveno obligation to compensate Trinity for such servies.  The terms of the Data Use Agreement will notbe revised without prior notice to OBI.

4.               The confidentialityand indemnification obligations set forth in the Co-Promotion Agreement willapply to the activities set forth in this letter of agreement.

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

----

Please acknowledge youracceptance of the terms set forth above by countersigning this letter ofagreement 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/OBICO-PROMOTION**

SALES TRAINING PLAN

 

----

**APPENDIXC**

----

#  

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

Capitalized termsused but not defined herein shall have the same meaning given to them in theAgreement.

This training planwill become effective upon approval and agreement by representatives of eachParty.

 

 

 
| Millennium Pharmaceuticals, Inc     |        | Ortho Biotech, Inc. |   |
|-------------------------------------|-------------|---------------------|--------|
|                                |        |
|                                |        |
|                                |        |
|                                |        |
|                                |        |
|                                |        |
| Grant Bogle                         | Lou Ferrari |
| SVP, Oncology Sales & Marketing | VP, Sales   |

1

----

 

----

 

 

CO-PROMOTION TRAININGPLAN

 

21-NOV-06

----

 

APPENDIX C

----

2

----

----

**EXECUTIVESUMMARY**

----

#  

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

OBI is responsiblefor providing a sufficient number of OBI Trainers to train all OBI SalesRepresentatives and for ensuring that the OBI Sales Force is trained inaccordance with this Training Plan.

MLNM will providea minimum of one copy of all training materials for use by OBI solely in connectionwith the training of OBI Trainers and Sales Representatives. OBI has the rightto reproduce these training materials and to provide copies to OBI Trainers andSales personnel, only.

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

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

MLNM will providesupplementary training to OBI Trainers as deemed necessary and appropriate byMLNM during the term of the Agreement, for example in regards to any newlyapproved indication for VELCADE.  Inturn, OBI trainers will then deliver such additional training to all members ofthe OBI Sales Force.

 

----

**TRAININGOBJECTIVES**

----

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

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

·                  Effectivelydeliver the core message surrounding VELCADE in the treatment of multiplemyeloma and mantle cell lymphoma, as determined by MLNM.

·                  Successfullyaddress VELCADE objections.

·                  Appropriatelyreport, and respond to, reports of possible adverse events, product complaintsand unsolicited requests for information.

3

----

----

**TRAININGMODEL**

----

#  

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

The actualtraining consists of four phases:

1.               HomeStudy

2.               WEBEXTraining

3.               [**]Live Training

4.               [**]Practical Application

----

**TRAININGSCHEDULE**

----

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

**October 28****th****, 2006: **[**].

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

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

**November 28****th****, 2006: **[**].

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

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

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

 

**OBI Training of OBI Sales Force with support fromMLNM**

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

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

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

**January25****th,2007: **[**].

4

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**TRAININGCONTENT**

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

·                  Proteasomeinhibition as a mechanism of action

·                  Thedisease of multiple myeloma

·                  Thecurrent myeloma market

·                  TheCrest/029 clinical trials in relapsed and refractory multiple myeloma

·                  TheAPEX phase III clinical trial in relapsed and refractory multiple myeloma

·                  ThePINNACLE clinical trial in mantle cell lymphoma

·                  Competitionin the multiple myeloma market

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

·                  Pricingand reimbursement in the multiple myeloma market.

·                  Potentialadverse events associated with multiple myeloma therapies and all obligationsaround the reporting of such events.

Inaddition, all OBI Sales personnel will be able to:

·                  Effectivelydeliver the core message surrounding VELCADE in the treatment of multiplemyeloma and mantle cell lymphoma, as determined by MLNM.

·                  Successfullyaddress VELCADE objections.

·                  Appropriately report and respond toreports of possible adverse events, product complaints and unsolicited requestsfor information

 

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**TRAININGMATERIALS**

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

1.               Training Objectives

2.               Home Study Agenda

3.               Module 1:  **“Overview of Tumor Typesand Their Treatments”**

4.               Module 2: ** “Multiple Myeloma”**

5.               Module 3: ** “VELCADETM (bortezomib) forInjection**

5

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6.               A section on **Clinical Data**which comprised copies of the followingdocuments:

[**]

7.               A section on **Competitor**Information which comprised copies of thefollowing documents:

[**]

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

a.               [**]

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**TRAININGVALIDATION**

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#  

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

 

The training ofthe OBI Sales Force will also be validated via a series of learning assessments(quizzes and tests).  These learningassessments 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, thatall OBI Sales personnel receive the training and assessments as outlined inthis plan and meet the current standards of OBI applicable to otherpharmaceutical products and the applicable industry standards for comparablepharmaceutical products.

6

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**Appendix D**

**Terms AndConditions Applicable To Product Orders**

 

7

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**VELCADE****® (bortezomib) forInjection Ordering and Billing Process Overview**

- 1 -

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| 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 -

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**Customer Setup Information andMaintenance**

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In order to facilitateordering through MillenniumDirectSM the following need tooccur:

1.       MillenniumDirectTM needs to pre-load validated Ship-to addresses foreach wholesaler/distributor andtheir 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 copyof an applicable and valid license must accompany the application. New wholesalers/distributors can also call1.866.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-uppacket has been returned toMillenniumDirectSM it can be done at the time of order by completing a “New Ship-To Request Form.” You will be askedto provide a DEA or HIN number/statelicense in addition to the ship-to address information.

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

** **

**VELCADE Orders**

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**OrderingMethods**

We have implemented thefollowing ordering methods to request VELCADE drop shipmentsto your customers:

1.       **Internet.**The site can be reached at **www.millenniumdirect.net**To obtain a personalizedlogin 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.**Placingorders via EDI will require an initial setup time. This time varies and is dependent on the availability of an EDIrepresentative from your company. If you are interested in placing EDI orders, please contact us at1.866.VELCADE (1.866.835.2233),option5.

- 3 -

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**Hours ofOperation**

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

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

Any order requiringexpedited delivery or other delivery options please contact1.866.VELCADE (1.866.835.2233), option 5

**OrderQuantities**

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

**Returns**

**VELCADE hasa 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, itwill only be accepted if all instructions are followed and returned fromthe Ship-to customer directly.

**ShipmentPackaging**

VELCADE will be shipped toShip-to customers in packaging labeled MillenniumDirectSM from Louisville, KY. The package will notcontain any ICS branding.

VELCADE is shipped underambient conditions and should be stored according to theproduct’s labeling.

**PackingSlip**

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

**OrderTracking**

All shipments can be trackedvia www.millenniumdirect.net Shipment tracking information isalso available by calling 1.866.VELCADE(1.866.835.2233), option 5

- 4 -

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**Invoicing and Chargebacks**

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**Invoices**

Invoices will be sent to thewholesaler/distributor that placed the order. Wholesalersubsidiaries and distribution centers willreceive 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 mayapply in certain states and are the responsibility of the order placingparty.

**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                                     |

 

**PaymentTerm**

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 CenterDrive

Chicago, IL 60693

**CreditLimits**

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

**ChargebackSubmission**

All wholesalers willpurchase VELCADE at wholesale acquisition cost (WAC). All validchargebacks should be submitted via EDIwithin 30 days of placing the qualifying order. If you need to set up EDI connectivity withMillenniumDirectSM, please call 1.866.VELCADE (1.866.835.2233), option 5.

- 5 -

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**Frequently Asked Questions (FAQs)**

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**General**

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**What isMillenniumDirect****SM****?**

MillenniumDirect is thedistribution channel for VELCADE® (bortezomib) forInjection. It is a sole sourceopen access drop ship model.

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

ICS will be the managing theordering, distribution, shipment, and monitoring of VELCADEinto the US oncology marketplace. They arealso responsible for accounts receivables on VELCADE orders.

**What is a drop ship model?**

Wholesalers and distributorsplace orders on behalf of their customers and the product is thenshipped directly to the end user such as ahospital or office-based practice.

**What is a Ship-to customer?**

Ship-to customers arerecipients of VELCADE. They are also referred to as end-customers,and are generally hospital or office-basedpractices.

**What is a Bill-to customer?**

Bill-to customers placeorders on behalf of the Ship-to customers. They are also invoiced byMillenniumDirect for the product shipped.Generally they are the wholesalers and distributors.

**Ordering**

----

 

**How will end customers order VELCADE underMillenniumDirect****SM****?**

All end-customers, such ashospitals or office-based practices, will order VELCADE throughtheir normal wholesaler or distributorprocess.

**How can wholesalers and distributors order VELCADE?**

All wholesalers anddistributors must have a MillenniumDirect account to order VELCADE.Ordering methods include Internet, Fax, Phoneand EDI.

**If I am a distributor that would like to sell VELCADEhow can I purchase the product?**

New distributors andwholesalers can complete a business application found onMillenniumDirect.net under the “New AccountSign Up Section.” A copy of an applicable and valid license must accompany the application.

**What is the order cut off time for same dayprocessing?**

Orders received by 6:00 PMCT are processed for same day shipping and will be delivered by10:30 AM Local time the next day, excludingmajor holidays. Friday orders are delivered on Monday mornings.

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

Expedited shipping can bearranged by calling 866.VELCADE, option 5. There will be a smallsurcharge on expedited shipments.

- 6 -

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**Can I place an emergency order after 6:00 PM CT fornext day delivery?**

Yes, emergency order can beaccommodated. There will be a surcharge on all emergencyorders.

**Can VELCADE be shipped outside of the United Statesthrough MillenniumDirect****SM****?**

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

**How do I add a new Ship-To customer?**

Complete the “New Ship-ToForm” found on MillenniumDirect.net under the “New AccountSign Up Section” and send via fax or mailwith a copy of the applicable license to MillenniumDirect.

**How can I track an order and receive deliveryconfirmation?**

Orders can be trackedthrough MillenniumDirect.net by logging into the website.

**Customer Service**

----

 

**What are the customer service hours?**

Customer servicerepresentatives are available to assist you between the hours of 7:30 AMand 7:00 PM CT Monday throughFriday, excluding major holidays. Holiday hours are posted on MillenniumDirect.net

**How will returns be handled?**

VELCADE has a limited returnpolicy. Approved returns must be sent directly toMillenniumDirectSM 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 otherinformation on VELCADE?**

Customers should call1.866.VELCADE (1.866.835.2233) regarding such information andselect the appropriate option.

**Where can customers obtain reimbursement informationon VELCADE?**

Customers should call1.866.VELCADE (1.866.835.2233) regarding such information andselect the appropriate option.

- 7 -

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