CLINICAL WORK AND US$ [*****] FOR THE CHEMICAL AND PRE-CLINICAL WORK
(HEREINAFTER "THE SCHERING PAYMENT") BASED ON EPIX' BUDGET PLAN ATTACHED HERETO
AS EXHIBIT 3.1. COSTS INCURRED BY EPIX IN THE COURSE OF ITS PERFORMANCE UNDER
THE PROOF OF CONCEPT PLAN, IN EXCESS OF THE SCHERING PAYMENT, WILL BE THE
RESPONSIBILITY OF EPIX. IN CASE THAT EPIX' ACTUAL COSTS IN THE COURSE OF ITS
PERFORMANCE UNDER THE PROOF OF CONCEPT PLAN ARE LOWER THAN THE SCHERING PAYMENT,
EPIX HAS NO OBLIGATION TO PAY THE SCHERING PAYMENT BACK.
3.2.
FUNDING PAYMENTS.
THE SCHERING PAYMENT SHALL
BE PAID TO EPIX AS FOLLOWS:
(A)
US$ [*****] SHALL BE PAID TO EPIX WITHIN
TEN (10) BUSINESS DAYS OF THE DATE APPEARING IN THE FIRST PARAGRAPH OF THIS
AGREEMENT; AND
(B)
US$ [*****] SHALL BE PAID TO EPIX IN SUCH
INSTALLMENTS AS INDICATED BELOW, NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR TO
THE START OF CALENDAR QUARTER INDICATED BELOW:
Calendar Quarter
Amount to be paid to EPIX (US$)
Third quarter of 2003
[*****]
Fourth quarter of 2003
[*****]
First quarter of 2004
[*****]
Second quarter of 2004
[*****]
Third quarter of 2004
[*****]
Fourth quarter of 2004
[*****]
First quarter of 2005
[*****]
9
ARTICLE 4:
LICENSE OPTION
4.1.
SCHERING'S DEVELOPMENT OPTION.
SUBJECT TO THE
TERMS AND CONDITIONS SET FORTH HEREIN, EPIX HEREBY GRANTS TO SCHERING THE
EXCLUSIVE RIGHT AND OPTION
(THE "DEVELOPMENT OPTION") TO ACQUIRE A LICENSE AS
PROVIDED UNDER SECTION 5.1.2. HEREOF TO FURTHER DEVELOP AND COMMERCIALIZE
PRODUCTS BASED UPON, DERIVED FROM OR INCORPORATING A THROMBUS COMPOUND(S), AFTER
COMPLETION OF THE CLINICAL PROOF OF CONCEPT STUDY FOR SUCH THROMBUS COMPOUND(S)
(EACH A "SCHERING OPTION PRODUCT").
4.1.1.
COMMENCEMENT OF OPTION PERIOD AND EXERCISE.
UPON
COMPLETION OF THE CLINICAL PROOF OF CONCEPT STUDY, EPIX SHALL PREPARE, AND
DELIVER TO SCHERING, A FINAL STUDY REPORT CONTAINING THE DELIVERABLES IN ORDER
TO ENABLE SCHERING TO EVALUATE THE DATA FOR ITS OPTION PURPOSES (THE "FINAL
REPORT").
SCHERING SHALL EXERCISE THE DEVELOPMENT OPTION, IF AT ALL, BY
DELIVERING TO EPIX WITHIN NINETY (90) DAYS OF DELIVERY BY EPIX OF THE FINAL
REPORT (THE "OPTION PERIOD"): (I) A WRITTEN NOTICE TO EPIX OF ITS DESIRE TO
EXERCISE THE DEVELOPMENT OPTION AND (II) PAYMENT OF THE UPFRONT LICENSE FEE
DESCRIBED IN SECTION 6.1.1 HEREOF (THE DATE UPON WHICH EPIX RECEIVES SUCH NOTICE
AND PAYMENT IS, THE "EXERCISE DATE").
4.1.2.
EPIX LICENSED PRODUCT.
IF SCHERING DECLINES OR FAILS
TO EXERCISE THE DEVELOPMENT OPTION ON OR BEFORE EXPIRATION OF THE OPTION PERIOD
(THE "EPIX LICENSE DATE"), THE DEVELOPMENT OPTION SHALL IMMEDIATELY TERMINATE
AND
EPIX SHALL HAVE THE SOLE RIGHT, BUT NOT THE OBLIGATION, UNDER THE LICENSE
GRANTED PURSUANT TO SECTION 5.1.1 HEREOF TO FURTHER DEVELOP AND COMMERCIALIZE
SUCH SCHERING OPTION PRODUCT (THEREAFTER, AN "EPIX LICENSED PRODUCT"). SUCH
RIGHT AND LICENSE OF EPIX SHALL SURVIVE TERMINATION OF THIS AGREEMENT BY (I)
SCHERING, PURSUANT TO SECTION 12.2 HEREOF AND (II) EPIX, PURSUANT TO SECTION
12.3 HEREOF.
ARTICLE 5:
LICENSES
5.1.
LICENSE GRANTS.
5.1.1.
EPIX LICENSE.
SCHERING HEREBY GRANTS TO EPIX (I) A
NON-EXCLUSIVE,