TO THIRD PARTIES THE PERFORMANCE OF
PARTICULAR TASKS AND OBLIGATIONS WITH RESPECT TO THE DEVELOPMENT AND
COMMERCIALIZATION OF THE PRODUCT AS SCHERING DEEMS APPROPRIATE.
(B)
IN THE CASE WHERE SCHERING WISHES TO SUB-LICENSE ALL OR
SUBSTANTIALLY ALL OF ITS RIGHTS UNDER THIS AGREEMENT IN ANY MAJOR MARKET COUNTRY
OR MAJOR MARKET COUNTRIES TO A THIRD PARTY (EFFECTIVE OUT-LICENSE), [***].
FOR
THE AVOIDANCE OF DOUBT, ANY CO-PROMOTION OR CO-MARKETING ARRANGEMENT IN SUCH
MAJOR MARKET COUNTRY WITH A THIRD PARTY SHALL NOT CONSTITUTE AN EFFECTIVE
OUT-LICENSE.
[***], SCHERING WILL [***] BY WRITTEN NOTICE TO METABASIS
DISCLOSING THE IDENTITY OF THE PROPOSED THIRD PARTY SUBLICENSEE AND THE PROPOSED
SCOPE AND OTHER MATERIAL COMMERCIAL (BUT NOT FINANCIAL) TERMS OF THE
SUBLICENSE.
METABASIS WILL NOT [***] WITHIN [***] OF RECEIPT OF SUCH WRITTEN
NOTICE.
THE PARTIES HEREBY AGREE [***]
***Confidential Treatment Requested
14
[***] IN ACCORDANCE WITH THIS AGREEMENT.
IN ADDITION, METABASIS WILL NOT
[***].
ANY FAILURE TO RESPOND WITHIN SUCH [***] TIME PERIOD [***] BY
METABASIS.
IN THE CASE OF SUBLICENSES OUTSIDE OF MAJOR MARKET COUNTRIES
SCHERING SHALL USE REASONABLE COMMERCIAL EFFORTS TO GIVE NOTICE PROMPTLY TO
METABASIS OF ANY SUBLICENSE TO A THIRD PARTY WHERE SUCH THIRD PARTY ASSUMES A
SUBSTANTIAL PORTION OF THE RESPONSIBILITIES OF SCHERING UNDER THIS AGREEMENT,
PROVIDED THAT SCHERING SHALL HAVE NO LIABILITY FOR ANY INADVERTENT FAILURE TO DO
SO.
(C)
SCHERING SHALL REMAIN RESPONSIBLE FOR ENSURING COMPLIANCE WITH
THE TERMS OF THIS AGREEMENT BY SUBLICENSEES.
SCHERING SHALL ALSO PAY TO
METABASIS ROYALTIES ON NET SALES BY THIRD PARTY SUBLICENSEES PURSUANT TO SECTION
4.3 OF THIS AGREEMENT AND SCHERING WILL PAY SUCH ROYALTIES IRRESPECTIVE OF
WHETHER SCHERING RECEIVES PAYMENTS OR OTHER CONSIDERATION DUE FROM SUCH THIRD
PARTY SUBLICENSEES.
(D)
ANY SUBLICENSE GRANTED BY SCHERING OTHER THAN IN CONFORMITY
WITH THE PROVISIONS OF THIS SECTION 2.2 SHALL BE NULL AND VOID.
2.3
EXCLUSIVITY
(A)
EXCEPT AS PROVIDED IN SECTION 2.1 AND AS PERMITTED BY
SECTIONS 6.1, 12.3, AND 12.4, DURING THE TERM, METABASIS WILL NOT LICENSE OR
OTHERWISE GRANT TO ANY THIRD PARTY ANY RIGHTS UNDER THE LICENSED PATENTS OR THE
LICENSED TECHNOLOGY TO RESEARCH, DEVELOP, MANUFACTURE, HAVE MANUFACTURED,
MARKET, EXPORT, HAVE EXPORTED, IMPORT, USE, OFFER TO SELL, OR SELL, HAVE SOLD,
DISTRIBUTE, PROMOTE, DETAIL OR OTHERWISE COMMERCIALIZE LICENSED COMPOUNDS OR
PRODUCTS IN THE TERRITORY WITHIN THE FIELD.
2.4
PROVISION OF INFORMATION
(A)
WITHIN [***] FOLLOWING THE AMENDED CLOSING DATE, METABASIS WILL
DISCLOSE AND PROVIDE ALL INFORMATION IN ITS POSSESSION OR CONTROL RELATING TO
THE LICENSED PATENTS AND THE LICENSED TECHNOLOGY TO SCHERING OR ITS DESIGNATED
AFFILIATE TO THE EXTENT NECESSARY OR USEFUL TO ENABLE SCHERING TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT TO DEVELOP, MANUFACTURE, REGISTER, USE OR
MARKET THE LICENSED COMPOUND AND/OR PRODUCT AND PRACTICE THE LICENSES GRANTED
HEREUNDER EFFICIENTLY INCLUDING, TO THE EXTENT REASONABLY AVAILABLE TO
METABASIS, ANY CLINICAL DATA, STUDY REPORTS, ANY INFORMATION RELATING TO
MANUFACTURING, ANY AGREEMENTS IN RESPECT OF THE LICENSED COMPOUND, AND ANY
RELATED CORRESPONDENCE AND FILINGS WITH ANY APPROVAL AUTHORITY (INCLUDING NOTES
OR MINUTES OF ANY MEETING WITH ANY APPROVAL AUTHORITY).