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 LICENSE AGREEMENT
 Agreement Effective Date LICENSEE nd PFIZER Party Parties
 RECITALS
    1.
    
    DEFINITIONS
 1.1.
    
    Affiliate means, with respect to a Party, any Person that controls, is
controlled by, or is under common control with that Party. For the purpose of this
definition, control shall refer to: (a) the possession, directly or indirectly, of
the power to direct the management or policies of an entity, whether through the
ownership of voting securities, by contract or otherwise, or (b) the ownership,
directly or indirectly, of fifty percent (50%) or more of the voting securities of such
entity.1.2.
    
    Applicable Laws means all applicable laws, statutes, rules, regulations and
guidelines, including all good manufacturing practices and all applicable standards or
guidelines promulgated by the appropriate Regulatory Authority, the rules of the
Securities and Exchange Commission or any stock exchange and any court order or other
governmental order.1.3.
    
    Bankruptcy Code has the meaning as set forth in Section 13.3.1.4.
    
    Bankruptcy Event has the meaning as set forth in Section 13.3.1.5.
    
    Business Day means any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York, New York are authorized or required by law to
remain closed.1.6.
    
    Calendar Quarter means each of the three (3) month periods commencing on
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 1.7.
    
    Calendar Year means the twelve (12) month period commencing on January 1 and
each successive twelve (12) month period thereafter.1.8.
    
    cGMP means current Good Manufacturing Practices and standards as provided
for in the 21 CFR Parts 210-211 and in European Community Directive 91/356/EEC, each as
amended from time to time.1.9.
    
    Combination Product means any pharmaceutical product containing: (a) a
Compound(s) and (b) one or more other therapeutically active ingredients which are not
Compounds.1.10.
    
    Commence orCommencement when used with respect to a clinical trial, means
the first dosing of the first patient for such trial.1.11.
    
    Commercialize or Commercialization means to manufacture for sale, market,
promote, otherwise offer for sale, distribute, and sell.1.12.
    
    Commercially Reasonable Efforts means, with respect to a Product: (a) with
respect to Development of such Product, the efforts, budget, headcount and expenditures
that are directed toward seeking to obtain Regulatory Approval and are comparable to
those used by LICENSEE for one of LICENSEEs products that is at a similar stage of
development and has similar commercial potential as such Product, and (b) with respect
to Commercialization of such Product, the efforts, budget, headcount and expenditures
that are comparable to those used by LICENSEE for any of LICENSEEs products that has
similar commercial potential as such Product; in each of cases (a) and (b), as
determined on a country-by-country basis by reference to relevant scientific,
regulatory and commercial factors including product safety and efficacy profile,
development risk, regulatory environment, patent and other exclusivity protections and
risks, anticipated market size, competition from other products or treatments, product
labeling or anticipated labeling and competitive market conditions, all as measured by
the facts and circumstances at the time such efforts are due.1.13.
    
    Compound means each of the following, separately: ETC-216, alone, and each
Improvement thereto. ETC-216 and each modified version of ETC-216 which is an
Improvement shall be considered a separate Compound for purposes of this Agreement.1.14.
    
    Control or Controlled means, with respect to any Intellectual Property
Rights, the legal authority or right (whether by ownership, license or otherwise, other
than pursuant to a license granted under this Agreement) of a Party to grant a license
or a sublicense of or under such Intellectual Property Rights to the other Party
without breaching the terms of any agreement with a Third Party.1.15.
    
    Cover, Covering or Covered means, with respect to a Compound or Product,
in the absence of a license granted under a Valid Claim, the Use of such Compound or
Product would infringe such Valid Claim (or, in the case of a Valid Claim that has not
yet issued, would infringe such Valid Claim if it were to issue).
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 1.16.
    
    Danisco has the meaning as set forth in Section 2.1.3.1.17.
    
    Danisco Agreement has the meaning as set forth in Section 2.1.3.1.18.
    
    Danisco IP has the meaning as set forth in Section 2.1.3.1.19.
    
    Develop or Development means to conduct research and development
activities, and related manufacturing activities, necessary to obtain or for the
purpose of obtaining or maintaining Regulatory Approval.1.20.
    
    EMEA means the European Medicines Agency, or any successor agency thereof.1.21.
    
    ETC-216 means the compound designated by PFIZER as ETC-216 as described in
Schedule A hereto in the form existing as of the Effective Date.1.22.
    
    Europe means the member states of the European Union, as constituted from
time to time.1.23.
    
    FDA means the United States Food and Drug Administration, or a successor
federal agency thereto.1.24.
    
    Field means all therapeutic, prophylactic and diagnostic uses in humans and
animals.1.25.
    
    First Commercial Sale means, with respect to a Product in a country in the
Territory, the first sale for use or consumption by the general public of such Product
following receipt of Regulatory Approval for such Product in such country.1.26.
    
    GAAP means the generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board.1.27.
    
    Improvements means, with respect to ETC-216, any change or modification
thereof, including amino acid deletions, additions, duplications and substitutions, and
chemical or physical modifications thereto, in each case to the extent such modified
ETC-216 is or has been Covered by a Valid Claim under the Patent Rights.1.28.
    
    IND means: (a) an investigational new drug application filed with the FDA
for authorization for the clinical investigation of a Product, and (b) any of its
foreign equivalents as filed with the applicable Regulatory Authorities in other
countries or regulatory jurisdictions in the Territory, as applicable.1.29.
    
    Intellectual Property Rights means all trade secrets, copyrights, patents,
patent applications and other patent rights, Trademarks, moral rights, and any and all
other intellectual property or proprietary rights now known or hereafter recognized in
any jurisdiction.
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 1.30.
    
    Know-How means the confidential or proprietary information and data
(including pre-clinical, clinical and manufacturing data but specifically excluding the
Patent Rights and the Danisco IP) Controlled by PFIZER as of the Effective Date, which
PFIZER or its Affiliates have applied to or incorporated into ETC-216 and which are
necessary or optimal for LICENSEE to Use ETC-216.1.31.
    
    Knowledge means the actual present knowledge of PFIZERs current patent
counsel with responsibility for intellectual property matters relating to ETC-216, and
current director of regulatory affairs matters relating to ETC-216, and is not meant to
require or imply that any particular inquiry or investigation has been undertaken
including obtaining any type of search (independent of that performed by the actual
governmental authority during the normal course of patent prosecution, as applicable,
in a jurisdiction) or opinion of counsel1.32.
    
    Licensed Technology means collectively, the Patent Rights and Know-How.1.33.
    
    Major European Country means any of the following countries: France,
Germany, Italy, Spain and the United Kingdom.1.34.
    
    Milestone means each milestone as set forth in Section 5.1.2.1.35.
    
    NDA/BLA means: (a) a new drug application or a new biologic
license application filed with the FDA for authorization for marketing a Product, and
(b) any of its foreign equivalents as filed with the applicable Regulatory Authorities
in other countries or regulatory jurisdictions in the Territory, as applicable,
including a Marketing Authorization Application (MAA).1.36.
    
    Net Sales means the gross amount invoiced by or on behalf of LICENSEE, its
Affiliates and their respective sublicensees (the Selling Party) for sales of the
relevant Product (other than sales by a Selling Party to LICENSEE, its Affiliates or
sublicensees for subsequent resale, in which case the sale thereafter by LICENSEE, its
Affiliates or sublicensees to a Third Party other than a Selling Party (an End User)
shall be used for calculation of Net Sales), provided, however, that if
the price invoiced by LICENSEE for the transfer to such Affiliate or sublicensee is
higher than the price invoiced by such Affiliate or sublicensee for the subsequent
resale to the End User, the Net Sales shall be determined on the gross amount invoiced
by LICENSEE to such Affiliate or sublicensee, and not on the gross amount invoiced by
such Affiliate or sublicensee to the End User; less the following deductions if and to
the extent they are included in the gross invoiced sales price of the Product or
otherwise directly incurred by LICENSEE, its Affiliates and their respective
sublicensees with respect to the sale of the Product: (a) rebates, quantity and cash
discounts, and other usual and customary discounts to customers; (b) taxes and duties
paid, absorbed or allowed which are directly related to the sale of the Product; (c)
credits, allowances, discounts and rebates to, and chargebacks for spoiled, damaged,
out-dated, rejected or returned Product; (d) actual freight and insurance costs
incurred in transporting the Product to customers, provided that in no event shall
deductions for freight and insurance exceed three percent (3%) of the gross amount
invoiced; (e) discounts or rebates or other payments required by
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 Applicable Law, including any governmental special medical assistance programs; (f)
customs duties, surcharges and other governmental charges incurred in connection
with the exportation or importation of the Product; (g) fee-for-service wholesaler
fees and inventory management fees paid to non-Affiliate wholesalers, including
hospital buying group/group purchasing organization administration fees, which are
reasonably allocated to the Product, to the extent consistent with the usual course
of dealing of the Selling Party for its products other than a Product; and (h)
amounts that are written off as uncollectible in accordance with the accounting
procedures of the Selling Party, consistently applied, to the extent a royalty has
actually been paid to PFIZER therefor, provided that LICENSEE has made
reasonable efforts to collect on such receivable, and provided,
further, that if such receivable shall thereafter be paid or otherwise
satisfied, the amount thereof shall be added to Net Sales for the Calendar Quarter
in which so paid or satisfied. Subsections (a) through (h) shall be collectively
referred to as Deductions. 
The following principles shall apply in the calculation of Net
Sales:
 1.36.1.
    
    In the case of any sale of a Product which is not invoiced or is delivered
before invoice, Net Sales shall be calculated at the time of shipment or when
the Product is paid for, if paid for before shipment or invoice.1.36.2.
    
    In the case of any sale or other disposal of a Product for non-cash
consideration, Net Sales shall be calculated as the fair market price of the
Product in the country of sale or disposal. Notwithstanding the foregoing,
provision of the Product for the purpose of conducting pre-clinical or clinical
research or Development shall not be deemed to be a sale, so long as the
Product is provided at a price which does not exceed the reasonably estimated
cost of production and distribution thereof.1.36.3.
    
    In the event a Product is sold as a Combination Product, the Net Sales of
the Product, for the purposes of determining royalty payments, shall be
determined by multiplying the Net Sales of the Combination Product by the
fraction, A/(A+B) where A is the weighted (by sales volume) average sale price
in a particular country of the Product when sold separately in finished form
and B is the weighted average sale price in that country of the other
product(s) sold separately in finished form. In the event that such average
sale price cannot be determined for both the Product and the other product(s)
in combination, Net Sales for purposes of determining royalty payments shall be
agreed by the Parties based on the relative value contributed by each
component, such agreement not to be unreasonably withheld, or, if not agreed,
determined pursuant to Section 16.1.2.1.36.4.
    
    Unless otherwise specified herein, Net Sales shall be calculated in
accordance with GAAP generally and consistently applied.
 1.37.
    
    Patent Rights means (a) the patents and patent applications listed in
Schedule B, (b) all divisionals, continuations, and continuations-in-part that
claim priority to the patent applications described in subsection (a) or the patent
applications from which
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 the patents described in subsection (a) issued, (c) all patents that have issued or
in the future issue from any of the foregoing patent applications in subsections (a)
and (b), including utility, model and design patents and certificates of invention,
(d) any reissues, renewals, extensions or additions of any of the foregoing, and (e)
any foreign equivalents of any of the foregoing.1.38.
    
    Person means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, governmental authority or
any other form of entity not specifically listed herein.1.39.
    
    Phase II Clinical Trial means a clinical trial of a Product on patients (i)
the principal purpose of which is to make a preliminary determination that such Product
is safe for its intended use, (ii) which contains a primary efficacy endpoint pursuant
to the protocol established by LICENSEE and approved by the applicable Regulatory
Authority, and (iii) which is generally consistent with the description in 21 CFR
§312.21(b) (as hereafter modified or amended) and any of its foreign equivalents. For
clarity, such trial may be referred to and conducted as a Phase IIB Trial or a
De-Risking Imaging Trial so long as it satisfies all requirements under 21 CFR
§312.21(b).1.40.
    
    Phase III Clinical Trial means the first morbidity and mortality clinical
trial required for the filing of an NDA/BLA or equivalent with a regulatory agency for
a Product that is performed after collecting preliminary evidence suggesting dose and
effectiveness of such Product, and which trial has safety and efficacy endpoints that,
if met, are acceptable to the applicable Regulatory Authorities as a basis for approval
of such NDA/BLA, and which is generally consistent with the description in 21 CFR
§312.21(c) (as hereafter modified or amended) and any of its foreign equivalents.1.41.
    
    Product means, on a Compound-by-Compound basis, any product(s) in which such
Compound is used as an active ingredient, for any indication and through any mode of
administration, and any formulations and line extensions of such a product.1.42.
    
    Regulatory Approval means, with respect to a Product in any country or
jurisdiction, any approval (including where required, pricing and reimbursement
approvals), registration, license or authorization that is required by the applicable
Regulatory Authority to market and sell such Product in such country or jurisdiction.1.43.
    
    Regulatory Authority means any governmental agency or authority responsible
for granting Regulatory Approvals for pharmaceutical or biological products, as
applicable, in the Territory.1.44.
    
    Regulatory Filings means, with respect to a Product, any submission to a
Regulatory Authority of any appropriate regulatory application, including any IND,
NDA/BLA, any submission to a regulatory advisory board, any marketing authorization
application, and any supplement or amendment thereto.
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 1.45.
    
    Royalty Term means, on a Product-by-Product and country-by country basis
with respect to each Product and each country in the Territory, the period commencing
on the Effective Date and expiring upon the later of: (a) expiration or abandonment or
other termination of the last Valid Claim of the Patent Rights Covering such Product in
such country in the Territory, (b) the expiration of any market exclusivity period
granted by a Regulatory Authority for such Product in such country, or (c) ten (10)
years following the date of First Commercial Sale of such Product in such country.1.46.
    
    Sublicense Fees has the meaning as set forth in Section 5.1.4.1.47.
    
    Territory means all countries of the world.1.48.
    
    Third Party means any Person other than a Party or an Affiliate of a Party.1.49.
    
    Trademarks has the meaning as set forth in Section 13.6.4.1.50.
    
    United Statesmeans the United States of America, its possessions and territories.1.51.
    
    Use means to research, Develop, make, have made, use, sell, have sold, offer
for sale, otherwise Commercialize and import.1.52.
    
    Valid Claim means either (a) a claim of an issued and unexpired patent
included within the Patent Rights, which has not been permanently revoked or declared
unenforceable or invalid by an unreversed and unappealable or unreversed and unappealed
decision of a court or other appropriate body of competent jurisdiction, or (b) a claim
of a pending patent application included within the Patent Rights, which claim has not
been revoked, cancelled, withdrawn, or abandoned or finally disallowed without the
possibility of appeal or refiling of such application (or which is not
appealed or refiled within the time allowed for appeal).
 2.
    
    LICENSE GRANT
 2.1.
    License Grant. Patent Rights
 Know How
 Danisco Agreement Danisco
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 Danisco
Agreement Danisco IP provided however
 2.2.
    
    Sublicense Rights. Subject to Section 2.2.4 hereof, LICENSEE may sublicense
the rights granted to it by PFIZER under this Agreement to any of its Affiliates or to
any Third Party. Any and all sublicenses shall be subject to the following
requirements:
 2.2.1.
    
    All sublicenses shall be subject to and consistent with the terms and
conditions of this Agreement and shall: (a) preclude the assignment of such
sublicense without the prior written approval of PFIZER, such approval not to
be unreasonably withheld, conditioned or delayed, and (b) preclude the granting
of further sublicenses in contravention of the terms and conditions of this
Agreement. In no event shall any sublicense relieve LICENSEE of any of its
obligations under this Agreement.2.2.2.
    
    LICENSEE shall furnish to PFIZER a true and complete copy of each sublicense
agreement and each amendment thereto, within [**] days after the sublicense or
amendment has been executed.2.2.3.
    
    At least [**] days before granting a sublicense to a Third Party in any
country in the Territory, LICENSEE shall provide PFIZER with written notice of
its interest in granting a sublicense, which notice shall specify the
country(ies) in which LICENSEE is interested in granted a sublicense. If
PFIZER notifies LICENSEE within such [**] day period that PFIZER desires to
negotiate an agreement with respect to such proposed sublicense rights, then
LICENSEE shall negotiate with PFIZER during such [**] day period, or such
longer period as agreed between the Parties, regarding the terms pursuant to
which the Parties would enter into such an agreement.2.2.4.
    
    Any sublicense granted by LICENSEE to a Third Party in the United States,
Japan, China or any country in Europe, is subject to the prior written consent
of PFIZER, such consent not to be unreasonably withheld, conditioned or
delayed.
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 2.3.
    
    Residuals. PFIZER may use for any purpose the Residuals resulting from
PFIZERs access to or work with the Products, but not for purposes of clinically
Developing, Commercializing or manufacturing for sale any Products in the Field in the
Territory. As used herein, Residuals means information in non-tangible form which
may be retained in the unaided memories of PFIZERs employees who have had access to
the Products, including ideas, concepts, know-how or techniques related thereto.2.4.
    
    365(n)Rights. All rights granted under this Agreement by PFIZER are, for the
purposes of Article 365(n) of the Bankruptcy Code, licenses of rights to intellectual
property as defined under Article 101 of the Bankruptcy Code. The Parties agree that
LICENSEE will retain, and may fully exercise, all of its rights and elections as a
licensee under the Bankruptcy Code.2.5.
    
    No Additional Rights. Nothing in this Agreement shall be construed to confer
any rights upon LICENSEE by implication, estoppel, or otherwise as to any technology or
Intellectual Property Rights of PFIZER or its Affiliates other than the Licensed
Technology, regardless of whether such technology or Intellectual Property Rights shall
be dominant or subordinate to any Licensed Technology; provided, however, that this
Section 2.5 shall not supersede the provisions of Section 2.4 and the representations
and warranties given by PFIZER pursuant to Article 10. Nothing in this Agreement shall
be construed to confer any rights upon PFIZER by implication, estoppel, or otherwise as
to any technology or Intellectual Property Rights of LICENSEE or it Affiliates other
than as expressly provided in Section 13.6.4.
 3.
    
    TECHNOLOGY TRANSFER
 3.1.
    
    Process.
 Documentation Transfer Period Schedule C provided however Documentation provided however
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  Manufacturing Technology
 Regulatory Filings; Regulatory Approvals provided however
 Transition Liaison.
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  4.
    
    DEVELOPMENT AND COMMERCIALIZATION
 4.1.
    
    Development. LICENSEE shall itself, or through its Affiliates or sublicensees,
use Commercially Reasonable Efforts to Develop at least one Product in the Territory.
In connection with its efforts to Develop Products, LICENSEE shall bear all
responsibility and expense for filing Regulatory Filings in LICENSEEs name and
obtaining Regulatory Approval for such Products. LICENSEE will undertake such
activities at its sole expense and shall provide to PFIZER reports regarding LICENSEEs
progress within [**] days following the expiration of each Calendar Year. For clarity,
the first such report shall pertain to LICENSEEs efforts during the 2010 Calendar
Year.4.2.
    
    Commercialization. With respect to each Product for which LICENSEE obtains
Regulatory Approval, LICENSEE shall itself, or through its Affiliates or sublicensees,
use Commercially Reasonable Efforts to Commercialize such Product in the Territory
following receipt of Regulatory Approval for such Product in the relevant country in
the Territory. LICENSEE will undertake such activities at its sole expense.4.3.
    
    Manufacturing. As between the Parties, LICENSEE shall have the sole right to
manufacture, or have manufactured, the Products, and LICENSEE, its Affiliates and
sublicensees, shall be entitled to use the manufacturing rights under the Licensed
Technology, and the rights granted under the Danisco Agreement, for such purposes.
 5.
    
    PAYMENT TERMS
 5.1.
    
    Payment Terms.
 Upfront Payment
 Milestone Payments Milestone Payment
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 CLINICAL MILESTONES
    
    PAYMENT(1) upon Commencement of first Phase II Clinical Trial of a
Product conducted by LICENSEE, its Affiliates or its or their
permitted sublicensees
    
    US$[**](2) upon Commencement of the first Phase III Clinical Trial of a
Product conducted by LICENSEE, its Affiliates or its or their
permitted sublicensees
    
    US$[**]REGULATORY MILESTONES
    
    PAYMENT(1) upon first acceptance by the FDA of the filing of a NDA/BLA
for a Product
    
    US$[**](2) upon first acceptance by the EMEA of the filing of an MAA for
a Product via the centralized procedure pursuant to Directive
93/41/EEC
    
    US$[**](3) upon first acceptance by the Pharmaceuticals and Medical
Devices Agency (PMDA) of the filing of a
manufacturing/distribution approval application for a Product in
Japan
    
    US$[**]COMMERCIAL MILESTONES
    
    PAYMENT(1) upon receipt by LICENSEE, its Affiliates or its or their
sublicensee(s) of the first Regulatory Approval by the FDA for a
Product
    
    US$[**](2) upon receipt by LICENSEE, its Affiliates or its or their
sublicensee(s) of the first Regulatory Approval by the EMEA for a
Product, including pricing and reimbursement approval with the
applicable Regulatory Authorities in three Major European
Countries
    
    US$[**](3) upon receipt by LICENSEE, its Affiliates or its or their
sublicensee(s) of the first Regulatory Approval by the PMDA of a
manufacturing/distribution approval application for a Product,
including pricing and reimbursement approval
    
    US$[**](4) upon achieving aggregate Net Sales of Products in any Calendar
Year equal to or greater than [**] US dollars (US$[**])
    
    US$[**]
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 COMMERCIAL MILESTONES
    
    PAYMENT(5) upon achieving aggregate Net Sales of Products in any Calendar
Year equal to or greater than [**] US dollars (US$[**])
    
    US$[**](6) upon achieving aggregate Net Sales of Products in any Calendar
Year equal to or greater than [**] US dollars (US$[**])
    
    US$[**]
  Royalty Payments
 (a)
    
    Royalties. In consideration of the licenses and rights
granted to LICENSEE hereunder, on a Product-by-Product and country-by-country
basis, LICENSEE will pay to PFIZER, subject to subsection (b) of this Section
5.1.3, royalties on Net Sales of a Product in the Territory, where such
royalties shall be calculated each Calendar Quarter by multiplying the Net
Sales for such Calendar Quarter by [**] percent ([**]%); provided, however,
that, if no Valid Claim Covers the Use of a Product in the U.S. or Japan, the
royalty rate for such Product in such country shall be reduced to [**] percent
([**]%) (collectively, the Royalties). LICENSEEs obligation to pay
Royalties shall commence on the date of the First Commercial Sale of the
Product in a country and end at the end of the applicable Royalty Term, on a
Product-by-Product and country-by-country basis. LICENSEE shall pay all such
payments within [**] days following the expiration of each Calendar Quarter.
All payments shall be accompanied by a report that includes reasonably detailed
information regarding a total sales calculation of Net Sales of Products
(including all Deductions) and all Royalties payable to PFIZER for the
applicable Calendar Quarter (including any foreign exchange rates employed).(b)
    
    Generic Competition. In the event of bona fide
commercial sales activities in any country in the Territory undertaken by any
Third Party (other than pursuant to a sublicense from LICENSEE) with respect to
(i) any product approved or to be approved for sale in such country using a
Product as its reference product, or (ii) any other product specifically
intended as a direct
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 generically substitutable product to a Product in such country
(collectively, a Generic Product with respect to such Product),
and in each case ((i) and (ii)) (1) after such Generic Product in such
country has obtained a market share greater than [**] percent ([**]%) of the
total market share for such Product and such Generic Product, as measured by
unit sales, and (2) for as long as such commercial sales activity is
undertaken in such country, the royalty rate payable with respect to such
Product in such country shall be [**] percent ([**]%) of the applicable
royalty rate pursuant to Section 5.1.3(a).(c)
    
    Royalty Term. Royalties will be payable on a
Product-by-Product and country-by-country basis commencing as of the First
Commercial Sale of the relevant Product in the relevant country until the
expiration of the Royalty Term for such Product in such country. Upon
expiration of the Royalty Term with respect to a Product and a country, the
licenses granted to LICENSEE under this Agreement shall convert to perpetual,
exclusive, fully paid-up, non-royalty-bearing licenses with respect to such
Product in such country.
 Sublicense Fees Sublicense Fees
 Other Payments
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 Late Payments Wall Street Journal
 5.2. Payment Method
 Wall Street Journal Wall
Street Journal
   5.3. Taxes
 Taxes
 Withholding Tax
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   6. RECORDS; AUDIT RIGHTS
 6.1. Relevant Records
 Relevant Records Relevant Records
 Audit Request
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  Audit Fees and Expenses
 Payment of Deficiency
 7. INTELLECTUAL PROPERTY RIGHTS
 7.1.
    
    Pre-existing IP. Subject to the rights and licenses expressly granted under
this Agreement, each Party shall retain all rights, title and interests in and to any
Intellectual Property Rights that are owned, licensed or sublicensed by such Party
prior to or independent of this Agreement.7.2.
    
    Patent Prosecution.
 (a)
    
    Patent Prosecution and Maintenance. Subject to PFIZERs rights
set forth in Section 7.2(c) below, LICENSEE will be responsible for filing,
prosecuting (including in connection with any reexaminations, oppositions and
the like) and maintaining the Patent Rights in the Territory and in PFIZERs
name, at LICENSEEs own cost and expense, using reasonable efforts with respect
thereto. LICENSEE will select qualified outside patent counsel and
corresponding foreign associates to prepare, file, prosecute and maintain the
Patent Rights. Before each substantive submission is filed,
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 LICENSEE will provide PFIZER a reasonable opportunity to review and comment
on proposed submissions to any patent office and reasonably consider any
timely comments provided by PFIZER to LICENSEE. LICENSEE will keep PFIZER
reasonably informed of the status of the Patent Rights by timely providing
PFIZER copies of significant communications relating to such Patent Rights
that are received from any patent office or patent counsel of record or
foreign associate.(b)
    
    Assistance.
 (i)
    
    PFIZER will provide reasonable assistance to
LICENSEE, at LICENSEEs expense, in connection with the filing,
prosecution and maintenance of such Patent Rights, where such
assistance shall include providing access to relevant persons and
executing all documentation reasonably requested by LICENSEE. Promptly
after the Effective Date, PFIZER will provide to LICENSEE a list of all
Patent Rights, the applicable file wrappers for such Patent Rights and
any docket reports and status reports with respect to such Patent
Rights.(ii)
    
    As reasonably requested by LICENSEE in writing,
PFIZER shall cooperate, at LICENSEEs expense, in obtaining patent term
restoration (under, but not limited to, the Drug Price Competition and
Patent Term Restoration Act), supplementary protection certificates or
their equivalents, and patent term extensions with respect to the
Patent Rights in the United States, Europe and any other country in
which any patent term restorations, supplementary protection
certificates, patent term extensions or their equivalents are
available.
 (c)
    
    Failure to Prosecute or Maintain. In the event LICENSEE elects
to forgo filing, prosecution or maintenance of the Patent Rights, LICENSEE
shall notify PFIZER of such election at least [**] days prior to any filing or
payment due date, or any other due date that requires action (Election
Notice). Upon receipt of an Election Notice in accordance with the foregoing,
PFIZER shall be entitled, upon written notice to LICENSEE, at its sole
discretion and expense, to file or to continue the prosecution or maintenance
of such Patent Right in such country in PFIZERs name using counsel of its own
choice and at its own expense (Pfizer Patent Rights), in which case, the term
Patent Rights shall automatically be modified to exclude such Pfizer Patent
Rights as of the date LICENSEE provides PFIZER such Election Notice.
 8. INFRINGEMENT; MISAPPROPRIATION
 8.1.
    
    Notification. Each Party will promptly notify the other Party in writing of
any actual or threatened infringement, misappropriation or other violation by a Third
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 Party of any Licensed Technology in the Field and in the Territory of which it
becomes aware (Third Party Infringement).
 8.2. Infringement Action
 Right of First Enforcement
 (a)
    
    LICENSEE shall have the first right (but not the obligation),
at its own expense, to control enforcement of the Licensed Technology against
any Third Party Infringement and may name PFIZER as a party for standing
purposes. Prior to commencing any such action (unless delay would result in
the loss of rights), LICENSEE shall consult with PFIZER and shall consider
PFIZERs recommendations regarding the proposed action. LICENSEE shall give
PFIZER timely notice of any proposed settlement of any such action instituted
by LICENSEE and shall not, without the prior written consent of PFIZER (not to
be unreasonably withheld), enter into any settlement that would: (i) adversely
affect the validity, enforceability or scope of any of the Patent Rights, (ii)
give rise to liability of PFIZER or its Affiliates, (iii) admit
non-infringement of any Patent Rights, or (iv) otherwise impair PFIZERs rights
in any Licensed Technology or this Agreement.(b)
    
    Subject to subsection (c) hereof, if LICENSEE does not obtain
agreement from the alleged infringer to desist or fails to initiate an
infringement action: (i) within [**] days following LICENSEEs receipt of
notice of the alleged infringement, or (ii) no later than [**] days before the
expiration date for filing such action, whichever comes first, PFIZER shall
have the right, at its sole discretion, to control such enforcement of the
Licensed Technology at its sole expense.(c)
    
    In the case of a Paragraph IV Certification, the deadline for
LICENSEE to file an action before PFIZER can exercise the enforcements right in
subsection (b) hereof is [**] days before the expiration date for filing such
action, unless LICENSEE has notified PFIZER in writing at least [**] days
before the expiration date for filing such action that LICENSEE does not intend
to file an action with respect to such Paragraph IV Certification. Paragraph
IV Certification means any certification filed pursuant to 21 U.S.C.
§355(b)(2)(A)(iv) or 355(j)(2)(A)(vii)(IV), or any notice under any future
analogous provisions of U.S. law applicable to biologics (or any amendment or
successor statute thereto), or any comparable law under any other jurisdiction.
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 8.2.3.
    
    Recoveries.
 (a)
    
    Any recoveries resulting from an action relating to a claim of
Third Party Infringement shall first be applied against payment of the
non-prosecuting Partys costs and expenses incurred in connection therewith,
and then be applied against payment of the prosecuting Partys costs and
expenses.(b)
    
    For any action instituted by LICENSEE under 8.2.1(a), any
remaining recoveries shall be retained by (or if received by PFIZER, paid to)
LICENSEE; provided however, PFIZER shall be entitled to a
Royalty on such remaining recoveries in accordance with Section 5.1.3 as if the
amount of such remaining recoveries were Net Sales of LICENSEE in the Calendar
Year in which the recoveries were received by LICENSEE; provided, however,
that, if LICENSEE fails to institute an action or proceeding and PFIZER
exercise its right to prosecute such infringement pursuant to Section 8.2.1(b),
any remaining recoveries shall be retained by (or if received by LICENSEE, paid
to) PFIZER.
 9.

    CONFIDENTIALITY
 9.1.
    
    Definition. Confidential Information means the terms and provisions of this
Agreement (for which each Party shall be deemed to be the disclosing Party,
notwithstanding Section 9.3.1) and other proprietary information and data of a
financial, commercial, medical, scientific or technical nature that the disclosing
Party or any of its Affiliates has supplied or otherwise made available to the other
Party or its Affiliates, which are: (a) disclosed in writing or (b) if disclosed in a
form other than in writing, then declared to be confidential at the time of disclosure,
and summarized in writing and provided to the receiving Party within [**] days after
disclosure. Notwithstanding the foregoing and Section 9.3.1, all Know-How shall be
considered LICENSEEs and PFIZERs Confidential Information, provided,
however, that Know-How not solely applicable to the Use of ETC-216 shall be
considered the Confidential Information of PFIZER.9.2.
    
    Obligations. The receiving Party will protect all Confidential Information of
the disclosing Party against unauthorized disclosure to Third Parties with the same
degree of care as the receiving Party uses for its own similar information, but in no
event less than a reasonable degree of care. The receiving Party may disclose the
Confidential Information of the disclosing Party to its Affiliates, and their
respective actual and bona fide potential directors, officers, employees,
subcontractors, sublicensees, consultants, attorneys, accountants, banks, lenders,
acquirors and investors (collectively, Recipients) who have a need-to-know such
information (a) for purposes related to this Agreement; (b) in connection with a
potential merger, acquisition or reorganization; or (c) as a part of due diligence
investigations related to the receiving Party, provided that the receiving Party shall
hold such Recipients to written obligations of confidentiality with terms and
conditions at least as restrictive as those set forth in this Agreement, and provided,
further, that LICENSEE may not disclose any Know-How relating to the manufacturing of
ETC-216 pursuant to subclauses (b) and (c) hereof, except to a Recipient (A) with whom
LICENSEE has
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 executed a non-binding term sheet and with whom LICENSEE expects in good faith to
consummate a transaction, or (B) with whom LICENSEE has executed a binding
agreement. The receiving Party shall only use the disclosing Partys Confidential
Information to fulfill its obligations and exercise its rights under this Agreement.9.3.
    
    Exceptions.
  (a)
    
    is (at the time of disclosure) or becomes (after the time of
disclosure) known to the public or part of the public domain through no breach
of this Agreement by the receiving Party or any Recipients to whom it disclosed
such information;(b)
    
    was known to, or was otherwise in the possession of, the
receiving Party prior to the time of disclosure by the disclosing Party;(c)
    
    is disclosed to the receiving Party on a non-confidential basis
by a Third Party who is entitled to disclose it without breaching any
confidentiality obligation to the disclosing Party; or(d)
    
    is independently developed by or on behalf of the receiving
Party or any of its Affiliates, as evidenced by its written records, without
use or access to the Confidential Information.
  provided
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  Schedule D mutatis mutandis
 SEC provided provided that
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 Brewer/Matin Party
 9.4.
    
    Right to Injunctive Relief. The Parties agree that breaches of this Section 9
may cause irreparable harm to the non-breaching Party and shall entitle the
non-breaching Party, in addition to any other remedies available to it (subject to the
terms of this Agreement), the right to seek injunctive relief enjoining such action.9.5.
    
    Ongoing Obligation for Confidentiality. Upon expiration or termination of this
Agreement, the receiving Party shall, and shall cause its Recipients to, destroy or
return (as requested by the disclosing Party) any Confidential Information of the
disclosing Party, except for one copy which may be retained in its confidential files
for archive purposes.
 10.
    
    REPRESENTATIONS, WARRANTIES AND COVENANTS
 10.1.
    
    Representations and Warranties by Each Party. Each Party represents and
warrants to the other Party as of the Effective Date that:
 (a)
    
    it is a corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of formation;(b)
    
    it has full corporate power and authority to execute, deliver,
and perform this Agreement, and has taken all corporate action required by
Applicable Law and its organizational documents to authorize the execution and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement;
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 (c)
    
    this Agreement constitutes a valid and binding agreement
enforceable against it in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, bank moratorium or similar
laws affecting creditors rights generally and laws restricting the
availability of equitable remedies and may be subject to general principles of
equity whether or not such enforceability is considered in a proceeding at law
or in equity);(d)
    
    all consents, approvals and authorizations from all
governmental authorities or other Third Parties required to be obtained by such
Party in connection with the execution and delivery of this Agreement have been
obtained; and(e)
    
    the execution and delivery of this Agreement and all other
instruments and documents required to be executed pursuant to this Agreement,
and the consummation of the transactions contemplated hereby do not and shall
not: (i) conflict with or result in a breach of any provision of its
organizational documents, (ii) result in a breach of any agreement to which it
is a party that would impair the performance of its obligations hereunder; or
(iii) violate any Applicable Law.
 10.2.
    
    Representations and Warranties by PFIZER. Subject to any intellectual
property rights owned by Danisco and licensed to LICENSEE pursuant to the Danisco
Agreement (of which PFIZER makes no representations or warranties), PFIZER represents
and warrants to LICENSEE as of the Effective Date that:
 10.2.1.
    
    to the Knowledge of PFIZER, the Use of ETC-216 in the Field does not
infringe any Intellectual Property Rights of any Third Party;10.2.2.
    
    the Know-How and Patent Rights (except as noted with respect to the Patent
Rights on Schedule B2) comprise all patents, patent applications and
know-how owned or Controlled by PFIZER or its Affiliates that are necessary or
optimal for LICENSEE to Use ETC-216;10.2.3.
    
    to its Knowledge, there is no claim pending or threatened against PFIZER or
its Affiliates alleging that the Use of ETC-216 in the Field within the
Territory infringes, misappropriates or otherwise violates the Intellectual
Property Rights of a Third Party;10.2.4.
    
    to its Knowledge, PFIZER has not received written notice from a Third Party
asserting or alleging that the Use of ETC-216 on or before the Effective Date
infringed or misappropriated any Intellectual Property Rights of such Third
Party;10.2.5.
    
    there is no claim pending, or to the Knowledge of PFIZER, threatened, by
PFIZER alleging that a Third Party is or was infringing, misappropriating or
otherwise violating the Licensed Technology (except as noted with respect to
the Patent Rights on Schedule B2) in the Field in any country within
the Territory;
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 10.2.6.
    
    to its Knowledge, and except as noted with respect to the Patent Rights on
Schedule B2, all issued patents included in the Patent Rights are valid
and enforceable, and no Third Party has challenged the extent, validity or
enforceability of any of the Patent Rights;10.2.7.
    
    to its Knowledge, PFIZER has complied with all Applicable Laws, including
any disclosure requirements, in connection with the filing, prosecution and
maintenance of the Patent Rights (except as noted with respect to the Patent
Rights on Schedule B2);10.2.8.
    
    PFIZER is able to grant the licenses to LICENSEE as purported to be granted
pursuant to this Agreement, free and clear of any rights of any Third Party.
All Patent Rights (except as noted with respect to the Patent Rights on
Schedule B2) have been properly assigned to PFIZER and all assignment
documents with respect to the Patent Rights (except as noted with respect to
the Patent Rights on Schedule B2) have been properly executed and
recorded in the relevant U.S. and foreign patent offices;10.2.9.
    
    to PFIZERs Knowledge, each Regulatory Filing for ETC-216 submitted or filed
by PFIZER or any of its Affiliates was true, complete and accurate in all
material respects at the time of submission or filing and timely filed;10.2.10.
    
    to its Knowledge, PFIZER and its Affiliates have not received any written
notice that indicates that any of the Regulatory Filings submitted or filed for
ETC-216 are not currently in good standing with the relevant Regulatory
Authorities or that any clinical hold or similar regulatory action is in
effect, provided, however, that PFIZER has received a communication from the
FDA dated August 15, 2007, stating that the FDA would anticipate asking PFIZER
to comprehensively summarize all pertinent in-vitro, pre-clinical, and clinical
data both in a submission and at a face to face meeting prior to or at the time
of submission of any new clinical protocols for the ETC-216 program;10.2.11.
    
    to its Knowledge, (a) PFIZER and its Affiliates have complied in all
material respects with all Applicable Laws with respect to the Use of ETC-216
prior to the Effective Date, (b) neither PFIZER nor any employee of PFIZER or
its Affiliates involved in the Development of ETC-216 has been debarred under
Subsection (a) or (b) of Section 306 of the Federal Food, Drug and Cosmetic Act
(21 U.S.C. 335a), and (c) no employee of PFIZER or its Affiliates involved in
the Development of ETC-216 has been placed on any of the FDA clinical
investigator enforcement lists (including the (1) Disqualified/Totally
Restricted List, (2) Restricted List and (3) Adequate Assurances List);10.2.12.
    
    PFIZER has disclosed to LICENSEE the data (including pre-clinical and
clinical data and results), correspondence and information in the possession or
control of PFIZER or its Affiliates relevant to the
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 Development and Commercialization of ETC-216 that LICENSEE has requested;
 10.2.13.
    
    there are no agreements to which PFIZER or any of its Affiliates is a party
pursuant to which PFIZER or any of its Affiliates has a license or holds an
immunity from suit, with respect to patents which (i) are granted or
registered, or to the Knowledge of PFIZER, applied for or pending, and (ii) but
for PFIZERs or its Affiliates rights under such agreement, could be asserted
by a Third Party to be infringed by the Use of ETC-216 as a monotherapy.
PFIZER has previously delivered or made available to LICENSEE the written
agreements between PFIZER or its Affiliates, on the one hand, and any Third
Parties, on the other hand, necessary for the manufacture of ETC-216 for sale
in the Field in the Territory; provided, that LICENSEE acknowledges and agrees
that the Danisco Agreement has only been made available in redacted form, and
provided, further, that the foregoing is subject to the valid
execution and delivery of the Danisco Agreement by LICENSEE, PFIZER and Danisco
on or before the Effective Date hereof;10.2.14.
    
    certain provisions (Section 3.2, Section 4 and Section 7.2 in part of the
LICENSE AGREEMENT (as defined in the Danisco Agreement) and Sections 4 and 5 of
the FIRST AMENDMENT (as defined in the Danisco Agreement) have been redacted
because they are specific only to PFIZER and are not relevant to LICENSEEs
rights and assumed obligations under the Danisco Agreement, or they contain
confidential financial or other business information of PFIZER and Danisco; and10.2.15.
    
    all Transferred Inventory (a) was manufactured in accordance with (i) cGMP
and (ii) the specifications set therefor by PFIZER and provided to LICENSEE,
(b) conforms to such specifications, (c) shall, at the time of delivery to
LICENSEE, not contain any material that would cause the Transferred Inventory
to be adulterated or misbranded under Applicable Laws.
 10.3.
    
    Representations and Warranties by LICENSEE. LICENSEE represents and warrants
to PFIZER that it shall comply in all material respects with all Applicable Law with
respect to the performance of its obligations hereunder. Without limiting the
generality of the foregoing, (i) neither LICENSEE nor, to the actual knowledge of
LICENSEE, any employee, agent or subcontractor of LICENSEE involved or to be involved
in the Development of the Products has been debarred under Subsection (a) or (b) of
Section 306 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 335a); (ii) no Person
who is known by LICENSEE to have been debarred under Subsection (a) or (b) of Section
306 of said Act will be employed by LICENSEE in the performance of any activities
hereunder; and (iii) to the actual knowledge of LICENSEE, no Person on any of the FDA
clinical investigator enforcement lists (including the (1) Disqualified/Totally
Restricted List, (2) Restricted List and (3) Adequate Assurances List) will participate
in the performance of any activities hereunder. LICENSEE further represents and
warrants to PFIZER
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 that LICENSEE has the financial resources to perform its obligations under this
Agreement.
 10.4.
    
    No Other Warranties.EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10, (a)
NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
TITLE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE; AND (b) ANY INFORMATION, DOCUMENTATION AND MATERIALS PROVIDED BY
PFIZER OR ITS AFFILIATES IS MADE AVAILABLE ON AN AS IS BASIS WITHOUT WARRANTY WITH
RESPECT TO ACCURACY, COMPLETENESS, COMPLIANCE WITH REGULATORY STANDARDS OR REGULATIONS
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND OF WARRANTY WHETHER EXPRESS OR
IMPLIED. FOR CLARITY, PFIZER MAKES NO WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, REGARDING THE DANISCO IP OR ANY OTHER RIGHTS ACQUIRED BY LICENSEE UNDER
THE DANISCO AGREEMENT.10.5.
    
    Tangible Materials. LICENSEE acknowledges and agrees that the Tangible
Materials are experimental in nature and may have unknown characteristics. LICENSEE
shall use prudence and reasonable care in the use, handling, storage, transportation,
disposition, and containment of the Tangible Materials. PFIZER makes no
representations or warranties, and assumes no liability, for LICENSEEs use of the
Tangible Materials.
 11.
    
    INDEMNIFICATION
 11.1.
    
    Indemnification by LICENSEE. LICENSEE agrees to indemnify, hold harmless and
defend PFIZER and its Affiliates, and their respective officers, directors, employees,
contractors, agents and assigns (collectively, Pfizer Indemnitees), from and against
any Claims to the extent arising or resulting from: (a) the Development of a Product by
LICENSEE, its Affiliates, subcontractors or sublicensees, (b) the Commercialization of
a Product by LICENSEE, its Affiliates, subcontractors or sublicensees, (c) the
negligence, recklessness or wrongful intentional acts or omissions of LICENSEE, its
Affiliates, subcontractors or sublicensees under this Agreement, (d) breach by LICENSEE
of any representation, warranty or covenant as set forth in this Agreement, (e) breach
by LICENSEE of the scope of the license set forth in Section 2.1, or (f) any claim by a
Brewer/Matin Party resulting from this Agreement or any agreement or arrangement
between LICENSEE and one or more Brewer/Matin Party(ies). As used in this Section 11,
Claims means collectively, any and all Third Party demands, claims, actions and
proceedings (whether criminal or civil, in contract, tort or otherwise) for losses,
damages, liabilities, costs and expenses (including reasonable attorneys fees).
Notwithstanding the foregoing, this Section 11.1 does not limit or negate the
representations and warranties made by PFIZER under this Agreement.
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 11.2.
    
    Indemnification by PFIZER. PFIZER agrees to indemnify, hold harmless and
defend LICENSEE and its Affiliates, and their respective officers, directors,
employees, contractors, agents and assigns (collectively, Licensee Indemnitees), from
and against any Claims to the extent arising or resulting from: (a) the Development of
a Product, on or before the Effective Date, by or on behalf of PFIZER, its Affiliates,
subcontractors, assignors or licensees, (b) the negligence, recklessness or wrongful
intentional acts or omissions of PFIZER, its Affiliates, subcontractors, assignors or
licensees, (c) breach by PFIZER of any representation, warranty or covenant as set
forth in this Agreement, or (d) breach by PFIZER of the exclusive license granted to
LICENSEE pursuant to Section 2.1.11.3.
    
    Indemnification Procedure. In connection with any Claim for which a Pfizer
Indemnitee or a Licensee Indemnitee seeks indemnification from LICENSEE or PFIZER,
respectively, (the Indemnitor) pursuant to this Agreement, PFIZER or LICENSEE,
respectively, shall: (a) give the Indemnitor prompt written notice of the Claim;
provided, however, that failure to provide such notice shall not relieve the Indemnitor
from its liability or obligation hereunder, except to the extent of any material
prejudice as a direct result of such failure; (b) cooperate with the Indemnitor, at the
Indemnitors expense, in connection with the defense and settlement of the Claim; and
(c) permit the Indemnitor to control the defense and settlement of the Claim; provided,
however, that the Indemnitor may not settle the Claim without the prior written consent
(which shall not be unreasonably withheld or delayed) of PFIZER or LICENSEE,
respectively, in the event such settlement imposes any liability or obligation on the
relevant Indemnitee or requires payments by the relevant Indemnitee. Further, PFIZER
or LICENSEE, respectively, shall have the right to participate (but not control) and be
represented in any suit or action by advisory counsel of its selection and at its own
expense.
 12.
    
    LIMITATION OF LIABILITY
 12.1.
    
    Consequential Damages Waiver. EXCEPT FOR A BREACH OF SECTION 9 AND EXCEPT FOR
ANY INDEMNIFICATION OBLIGATIONS ARISING UNDER SECTION 11, NEITHER PARTY SHALL BE LIABLE
FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING
DAMAGES FOR LOST PROFITS OR LOST REVENUES, REGARDLESS OF WHETHER IT HAS BEEN INFORMED
OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT
(INCLUDING NEGLIGENCE).
 13.
    
    TERM; TERMINATION
 13.1.
    
    Term. The term of this Agreement shall commence as of the Effective Date and
shall expire upon the last-to-expire Royalty Term. Upon expiration of the Royalty Term
with respect to a Product and a country, the licenses granted to LICENSEE under this
Agreement shall convert to perpetual, exclusive, fully paid-up, non-royalty-bearing
licenses with respect to such Product in such country.
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 13.2.
    
    Termination for Cause. Each Party shall have the right, without prejudice to
any other remedies available to it at law or in equity, to terminate this Agreement in
the event the other Party breaches any of its material obligations hereunder and fails
to cure such breach within [**] days of receiving notice thereof; provided,
however, if such breach is capable of being cured, but cannot be cured within
such [**] day period, and the breaching Party initiates actions to cure such breach
within such period and thereafter diligently pursues such actions, the breaching Party
shall have such additional period as is reasonable to cure such breach, but in no event
will such additional period exceed [**] days, and provided, further,
that if such breach is solely related to LICENSEEs failure to pay Milestone Payments
or Royalties on Net Sales pursuant to Section 5 hereof, and such breach is not cured
within [**] days after such notice, PFIZER shall have the right thereafter to terminate
this Agreement immediately by giving written notice to LICENSEE. All timeframes in
this Section 13.2 shall be tolled until the resolution pursuant to Article 16 of any
good faith dispute over the existence or nature of the breach, or over the adequacy of
the cure thereof. Any termination by a Party under this Section 13.2 shall be without
prejudice to any damages or other legal or equitable remedies to which it may be
entitled from the other Party.13.3.
    
    Termination for a Bankruptcy Event. To the extent permitted by Applicable
Law, each Party shall have the right to terminate this Agreement upon written notice to
the other Party in the event of a Bankruptcy Event with respect to the other Party.
Bankruptcy Event means the occurrence of any of the following: (a) the institution of
any bankruptcy, receivership, insolvency, reorganization or other similar proceedings
by or against a Party under any bankruptcy, insolvency, or other similar law now or
hereinafter in effect, including any section or chapter of the United States Bankruptcy
Code, as amended or under any similar laws or statutes of the United States or any
state thereof (the Bankruptcy Code), where in the case of involuntary proceedings
such proceedings have not been dismissed or discharged within one hundred (120) days
after they are instituted, (b) the making of an assignment for the benefit of creditors
as to all or substantially all of a Partys assets, or (c) appointment of a receiver,
custodian, trustee, liquidator, assignee or other similar official for all or
substantially all of a Partys assets.13.4.
    
    Termination by PFIZER. If LICENSEE provides written notice to PFIZER of its
intent to permanently abandon the Development, manufacture and Commercialization, as
applicable, of the Products in the Territory, or if LICENSEE otherwise ceases to use
Commercially Reasonable Efforts for a period exceeding twelve (12) months with respect
to the Development, manufacture and Commercialization, as applicable, of at least one
Product in the Territory, PFIZER may, as its sole remedy, terminate this Agreement at
any time after the Effective Date by giving written notice to LICENSEE thereof, subject
to the cure periods and tolling provisions set forth in Section 13.2.13.5.
    
    Termination by LICENSEE For Convenience. LICENSEE shall have the right to
terminate this Agreement, in its entirety or on a Product-by-Product basis, for
convenience upon ninety (90) days prior written notice to PFIZER.
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 13.6.
    
    Effect of Termination or Expiration.
   provided however
  (a)
    
    LICENSEE hereby grants to PFIZER an exclusive, fully paid-up,
royalty-free, worldwide, transferable, perpetual and irrevocable license, with
the right to sublicense, under any Intellectual Property Rights (other than
Trademarks, for which Section 13.6.4(c) applies) Controlled by LICENSEE that
arose from the Development or Commercialization of the terminated Product by
LICENSEE under this Agreement, solely to Use the terminated Product in the
Field in the Territory.(b)
    
    To the extent permitted by applicable Regulatory Authorities,
LICENSEE shall: (i) transfer to PFIZER all Regulatory Filings (including drug
master files) and Regulatory Approvals held by LICENSEE with respect to the
terminated Product, and (ii) to the extent subsection (i) is not permitted by
the applicable Regulatory Authority, permit PFIZER to cross-reference and rely
upon any Regulatory Approvals and Regulatory Filings filed by LICENSEE with
respect to the terminated Product.(c)
    
    LICENSEE hereby grants to PFIZER a non-exclusive, fully
paid-up, royalty-free, worldwide, transferable, sublicensable, perpetual and
irrevocable license to use the Trademarks Controlled by LICENSEE solely
identifying the terminated Product (but, for the sake of clarity, excluding any
Trademark or part thereof that uses the company name of LICENSEE or any
Affiliate of
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 LICENSEE, except to the extent incorporated into the terminated Products
name, or required by a Regulatory Authority to be displayed to indicate
manufacturing source or other identifying information with respect to the
inventory or Inventory described in clause (d) during the Migration Period)
for the purpose of manufacturing, marketing, distributing and selling the
terminated Product. As used herein. Trademarks means all registered and
unregistered trademarks, service marks, trade dress, trade names, logos,
insignias, domain names, symbols, designs, and combinations thereof.
 (d)
    
    Upon PFIZERs request with respect to any clinical trial then
underway with respect to the terminated Product, LICENSEE shall continue such
trial for a mutually agreed upon period after termination of this Agreement,
which period, unless otherwise agreed to by the Parties, shall not exceed [**]
days after the date on which notice of termination of this Agreement was issued
(Migration Period), and PFIZER shall bear all costs arising with respect
thereto after the effective date of termination of this Agreement. During the
Migration Period, LICENSEE shall provide such knowledge transfer and other
training to PFIZER or its Affiliates or a Third Party that is designated in
writing by PFIZER (Designated Affiliate/Third Party) as reasonably necessary
for PFIZER or the Designated Affiliate/Third Party to continue such activities.
In connection with such transfer, LICENSEE shall, at PFIZERs option: (i)
transfer to PFIZER or the Designated Affiliate/Third Party the terminated
Product then in LICENSEEs inventory at the cost paid or incurred by LICENSEE
to manufacture or acquire such Product, (ii) transfer to PFIZER or the
Designated Affiliate/Third Party all Inventory owned by LICENSEE at the cost
paid or incurred by LICENSEE to manufacture or acquire for such Inventory; and
(iii) to the extent solely related to such Product and assignable in accordance
with the terms of the relevant agreement, and subject to Section 13.6.3, assign
to PFIZER or the Designated Affiliate/Third Party any agreements with Third
Parties with respect to the Development or Commercialization of the terminated
Product. PFIZER shall reimburse LICENSEE for all reasonable, documented
out-of-pockets costs and expenses (but not LICENSEEs internal costs or the
costs of packing and shipping such inventory or the Inventory) incurred in
connection therewith. As used herein, Inventory means all components and
works in process then held by LICENSEE with respect to the manufacture of the
terminated Product.
 13.7.
    
    Survival. Expiration or termination of this Agreement shall not relieve the
Parties of any obligation accruing hereunder prior to such expiration or termination.
In addition, the provisions of Sections 2.3, 2.4, 2.5, 6.1, 7.1, 9, 10.4, 11, 12, 13.6,
13.7, 14, 15, 16, 17.1, 17.2, 17.3, 17.5, 17.6, 17.7, 17.8, 17.10, 17.11, 17.12, 17.13
and 17.14 shall survive expiration or termination of this Agreement.
 14.
    
    TRADEMARKS.
 14.1.
    
    Trademarks. Subject to PFIZERs rights pursuant to Section 13.6.5(c) and each
Partys rights pursuant to Section 9, neither Party (nor any of its Affiliates or
agents)
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 shall use the Trademarks of the other Party or its Affiliates in any press release,
publication or other form of promotional disclosure without the prior written
consent of the other Party in each instance.
 15.
    
    LICENSEE INSURANCE
 15.1.
    
    Insurance Requirements. LICENSEE will maintain during the term of this
Agreement and until the later of: (a) three (3) years after termination or expiration
of this Agreement, or (b) the date that all statutes of limitation covering claims or
suits that may be instituted for personal injury based on the sale or use of the
Products have expired, commercial general liability insurance from a minimum A- AM
Bests rated insurance company or through self-insurance, including contractual
liability and product liability or clinical trials, if applicable, with coverage limits
of not less than five million US dollars ($5,000,000) per occurrence and five million
US dollars ($5,000,000) in the aggregate. LICENSEE has the right to provide the total
limits required by any combination of primary and umbrella/excess coverage. The
minimum level of insurance set forth herein shall not be construed to create a limit on
LICENSEEs liability hereunder. LICENSEE shall use reasonable efforts to ensure that
(y) such policies shall name PFIZER and its Affiliates as additional insured and
provide a waiver of subrogation in favor of PFIZER and its Affiliates, and (z) such
insurance policies shall be primary and non-contributing with respect to any other
similar insurance policies available to PFIZER or its Affiliates. Any deductibles for
such insurance shall be assumed by LICENSEE.15.2.
    
    Policy Notification. LICENSEE shall provide PFIZER with certified copies of
such policies or original certificates of insurance evidencing such insurance: (a)
prior to execution by both Parties of this Agreement, and (b) prior to expiration of
any one coverage. Such certificates shall provide that PFIZER shall be given at least
thirty (30) days (ten (10) days in the case of cancellation for non-payment of premium)
written notice prior to cancellation, termination or any change to restrict the
coverage or reduce the limits afforded.
 16.
    
    DISPUTE RESOLUTION
 16.1.
    
    General. The following procedures shall be used to resolve any dispute
arising out of or in connection with this Agreement:
 Meeting
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 Arbitration
 (a)
    
    Any disputes that are not otherwise resolved by the Parties or
by mediation shall be submitted to binding arbitration with the office of the
American Arbitration Association in New York County, New York in accordance
with the then-prevailing commercial arbitration rules of the American
Arbitration Association. The American Arbitration Association shall appoint a
single arbitrator who is neutral to the Parties.(b)
    
    The arbitrator shall not be an officer or employee of either
Party. The cost of the arbitration, including the fees and expenses of the
arbitrator, will be shared equally by the Parties. The substantially
prevailing Party shall be entitled to recover from the losing Party the
substantially prevailing Partys attorneys fees and costs. The arbitrator
shall have the right to apportion liability between the Parties, but will not
have the authority to award any damages or remedies not available under the
express terms of this Agreement. The arbitration award will be presented to
the Parties in writing, and upon the request of either Party, will include
findings of fact and, where appropriate, conclusions of law. The award may be
confirmed and enforced in any court of competent jurisdiction.(c)
    
    Either Party may seek injunctive relief from any court of
competent jurisdiction in order to enforce compliance with the provisions of
this Section 16.1.2.
 16.2.
    
    THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.
 17.
    
    GENERAL PROVISIONS
 17.1.
    
    Assignment. Neither Party may assign its rights and obligations under this
Agreement without the other Partys prior written consent, except that: (a) PFIZER may
assign to a Third Party its rights to receive some or all of the fees payable
hereunder, (b) each Party may assign its rights and obligations under this Agreement or
any part hereof to one or more of its Affiliates without the consent of the other
Party; and (c) either Party may assign this Agreement in its entirety to a successor to
all or substantially all of its business and assets to which this Agreement relates.
The assigning Party shall provide the other Party with prompt written notice of any
such assignment. Any permitted assignee pursuant to clauses (b) and (c) above shall
assume all obligations of its assignor under this Agreement, and no permitted
assignment shall relieve the assignor of liability for its obligations hereunder. Any
attempted assignment in contravention of the foregoing shall be void.17.2.
    
    Severability. Should one or more of the provisions of this Agreement become
void or unenforceable as a matter of law, then such provision will be ineffective only
to the extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement, and the Parties agree to substitute a valid and enforceable provision
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 therefor which, as nearly as possible, achieves the desired economic effect and
mutual understanding of the Parties under this Agreement.
 17.3.
    
    Governing Law; Exclusive Jurisdiction.
   17.4.
    
    Force Majeure. Except with respect to delays or nonperformance caused by the
negligent or intentional act or omission of a Party, any delay or nonperformance by
such Party (other than payment obligations under this Agreement) will not be considered
a breach of this Agreement to the extent such delay or nonperformance is caused by acts
of God, natural disasters, acts of the government or civil or military authority, fire,
floods, epidemics, quarantine, energy crises, war or riots or other cause outside of
the reasonable control of such Party (each, a Force Majeure Event), provided that the Party affected by such Force Majeure Event will promptly begin
or resume performance as soon as reasonably practicable after the event has abated. If
the Force Majeure Event prevents a Party from performing any of its material
obligations under this Agreement for one hundred eighty (180) days or more, then the
other Party may terminate this Agreement immediately upon written notice to the
non-performing Party.17.5.
    
    Waivers and Amendments. The failure of any Party to assert a right hereunder
or to insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to perform any
such term or condition by the other Party. No waiver shall be effective unless it has
been given in writing and signed by the Party giving such waiver. No provision of this
Agreement may be amended or modified other than by a written document signed by
authorized representatives of each Party.
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 17.6.
    
    Relationship of the Parties. Nothing contained in this Agreement shall be
deemed to constitute a partnership, joint venture, or legal entity of any type between
PFIZER and LICENSEE, or to constitute one Party as the agent of the other. Moreover,
each Party agrees not to construe this Agreement, or any of the transactions
contemplated hereby, as a partnership for any tax purposes. Each Party shall act
solely as an independent contractor, and nothing in this Agreement shall be construed
to give any Party the power or authority to act for, bind, or commit the other Party.17.7.
    
    Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted assigns.17.8.
    
    Notices. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when: (a)
delivered by hand (with written confirmation of receipt), (b) sent by fax (with written
confirmation of receipt), provided that a copy is sent by an internationally recognized
overnight delivery service (receipt requested), or (c) when received by the addressee,
if sent by an internationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and fax numbers set forth below
(or to such other addresses and fax numbers as a Party may designate by written notice
pursuant to this Section 17.8):
 If to PFIZER:Pfizer Inc.235 East 42nd StreetNew York, NY 10017Fax: 646-348-8157Attention: General CounselIf to LICENSEE:The Medicines Company8 Sylvan WayParsippany, NJ 07054Fax: 862-207-6062Attention: General CounselWith a copy to:WilmerHale60 State StreetBoston, MA 02109Fax: 1-617-526-5000Attention: David E. Redlick, Esq.
 17.9.
    
    Further Assurances. LICENSEE and PFIZER hereby covenant and agree, without
the necessity of any further consideration, to execute, acknowledge and
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 deliver any and all such other documents and take any such other action as may be
reasonably necessary or appropriate to carry out the intent and purposes of this
Agreement.
 17.10.
    
    No Third Party Beneficiary Rights. This Agreement is not intended to and shall not
be construed to give any Third Party (other than the Pfizer Indemnitees and Licensee
Indemnitees) any interest or rights (including any third party beneficiary rights) with
respect to or in connection with any agreement or provision contained herein or
contemplated hereby.17.11.
    
    Entire Agreement; Confidentiality Agreement. This Agreement, which includes its
Schedules, sets forth the entire agreement and understanding of the Parties as to the
subject matter hereof and supersedes all proposals, oral or written, and all other
prior communications between the Parties with respect to such subject matter, including
the Confidential Disclosure Agreement between LICENSEE and PFIZER dated as of July 7,
2009 (the CDA). The Parties acknowledge and agree that, as of the Effective Date,
all Confidential Information (as defined in the CDA) disclosed by PFIZER or its
Affiliates pursuant to the CDA shall be considered LICENSEEs and PFIZERs Confidential
Information and subject to the terms set forth in this Agreement.17.12.
    
    Counterparts. This Agreement may be executed in two or more counterparts, any of
which may be executed and transmitted by facsimile or other electronic method, and each
of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.17.13.
    
    Cumulative Remedies. No remedy referred to in this Agreement is intended to be
exclusive, but each shall be cumulative and in addition to any other remedy referred to
in this Agreement or otherwise available under law.17.14.
    
    Waiver of Rule of Construction; Interpretation. Each Party has had the opportunity
to consult with counsel in connection with the review, drafting and negotiation of this
Agreement. Accordingly, any rule of construction that any ambiguity in this Agreement
shall be construed against the drafting Party shall not apply. In construing this
Agreement, (a) use of the singular includes the plural and vice versa; (b) include or
including means including without limitation, and (c) except where the context
otherwise requires, the word or is used in the inclusive sense. References to
PFIZER herein shall include any Affiliate of Pfizer Inc. to the extent that the
relevant Intellectual Property Rights or other assets are held by such Affiliate, any
activities with respect to ETC-216 were conducted by such Affiliate or any rights are
exercised hereunder by such Affiliate, and Pfizer Inc. shall cause such Affiliates to
fulfill the relevant obligations under this Agreement. For the sake of clarity, the
materials described in Schedule C shall include such materials generated by or
on behalf of Esperion Therapeutics, Inc. prior to its acquisition by Pfizer Inc.
 [Signatures on next page]
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  THE MEDICINES COMPANY
    
    PFIZER INC.By:
    
    /s/ Glenn Sblendorio
    
    By:
    
    /s/ Willaim R. RingoName: Glenn Sblendorio
    
    
    
    Name: William R. RingoTitle: EVP and CFO
    
    
    
    Title: SVP, Worldwide Business Development,
Strategy and Innovation
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SCHEDULE A: ETC-216
 Description
 sn




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SCHEDULE B: PATENT RIGHTS
 Schedule B1:




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SCHEDULE C
 DOCUMENTATION AND TANGIBLE MATERIALS
  Non-Clinical Documentation
 GLP Studies Documentation GLP Studies
 Non-GLP Studies Documentation Non-GLP Studies
 Clinical Documentation
 Trial Master File Documentation
 Study Report Documentation
 Adverse Events Documentation
 Regulatory Documentation
 Manufacturing/Pharm. Sci. Documentation




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Data Room Documentation Schedule F
 Tangible Materials Tangible Materials
 Specimen Transfer Specimens
 Schedule E Transferred Inventory




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SCHEDULE D: PRESS RELEASE
 THE MEDICINES COMPANY ACQUIRES APOA-I MILANO FROM PFIZER
 Product Has Potential to Reverse Plaque Buildup in Arteries
 FOR U.S. AUDIENCES ONLY
 PARSIPPANY, NJ, and NEW YORK, NY, DECEMBER 21, 2009
    About ApoA-I Milano




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www.themedicinescompany.com
 About The Medicines Company
 ® ® www.themedicinescompany.com




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SCHEDULE E: TRANSFERRED INVENTORY




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SCHEDULE F: ELECTRONIC DATA ROOM SUMMARY