NOTICE.
SCHERING
SHALL NOTIFY EPIX OF ITS DECISION WITHIN SUCH [*****] PERIOD.
IF NO NOTICE IS
PROVIDED TO EPIX WITHIN SUCH [*****] PERIOD, THE SCHERING OPTION FOR SUCH
DEVELOPMENT CANDIDATE SHALL EXPIRE.
4.2
FAILURE TO EXERCISE; EPIX LICENSE OPTION.
FOR ALL DEVELOPMENT CANDIDATES FOR WHICH SCHERING FAILS TO EXERCISE THE SCHERING
OPTION, SCHERING HEREBY GRANTS TO EPIX THE EXCLUSIVE RIGHT AND OPTION (THE "EPIX
OPTION") TO OBTAIN AN EXCLUSIVE LICENSE UNDER THE TERMS SET FORTH IN SECTION 7
AND TO FURTHER DEVELOP AND COMMERCIALIZE PRODUCTS BASED UPON, DERIVED FROM OR
INCORPORATING SUCH DEVELOPMENT CANDIDATE, WITH THE RIGHT TO SUBLICENSE.
EACH
EPIX
11
OPTION SHALL COMMENCE UPON THE EXPIRATION OF THE CORRESPONDING SCHERING OPTION
AND SHALL BE EXERCISED WITHIN [*****] UPON NOTIFICATION TO SCHERING. IF NO
NOTICE IS PROVIDED BY EPIX WITHIN SUCH [*****] PERIOD, THE EPIX OPTION FOR SUCH
DEVELOPMENT CANDIDATE SHALL EXPIRE.
4.3
FAILURE TO EXERCISE THE OPTION BY BOTH
PARTIES.
IN CASE THAT NEITHER SCHERING NOR EPIX EXERCISE THEIR RESPECTIVE
OPTION FOR THE RELEVANT DEVELOPMENT CANDIDATE DURING THE PERIOD SET FORTH IN
SECTION 4.1 OR SECTION 4.2 AS APPLICABLE, BOTH THE EPIX OPTION AND THE SCHERING
OPTION SHALL AGAIN BECOME OPERATIVE AND EITHER PARTY MAY THEREAFTER EXERCISE ITS
OPTION BY WRITTEN NOTICE TO THE OTHER PARTY.
OPTIONS SHALL THEN BE EXERCISABLE
ON A FIRST-COME, FIRST-SERVED BASIS.
4.4
JOINT TECHNOLOGY OPTION.
EACH PARTY HEREBY
GRANTS TO THE OTHER THE RIGHT AND OPTION
TO OBTAIN AN EXCLUSIVE, WORLDWIDE,
ROYALTY-BEARING LICENSE, WITH THE RIGHT TO GRANT SUBLICENSES, UNDER SUCH PARTY'S
INTEREST IN THE JOINT TECHNOLOGY, TO THE EXTENT REQUIRED TO PERMIT SUCH OTHER
PARTY TO DEVELOP, MAKE, HAVE MADE, USE, SELL, PROMOTE, HAVE SOLD, AND IMPORT A
PRODUCT BASED UPON, DERIVED FROM OR INCORPORATING JOINT TECHNOLOGY FOR USE IN
[*****] THE [*****].
THE JOINT TECHNOLOGY OPTION SHALL NOT APPLY TO DEVELOPMENT
CANDIDATES.
THIS OPTION SHALL COMMENCE UPON THE EXPIRATION OF THE RESEARCH
PROGRAM AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL THE [*****]
ANNIVERSARY OF THE TERMINATION OF THE RESEARCH PROGRAM.
THE JOINT TECHNOLOGY
OPTION SHALL BE EXERCISABLE BY WRITTEN NOTICE FROM ONE PARTY TO THE OTHER PARTY
AND ON A FIRST-COME, FIRST-SERVED BASIS. FOR ALL EXCLUSIVE LICENSES OPTIONED
UNDER THIS SECTION 4.4 THE ROYALTY RATE OF SECTION 7.2.1 (B) (ROYALTIES FOR
[*****] SHALL APPLY AS WELL AS SECTION 7.2.3 AND SECTION 7.5. NOTWITHSTANDING
ANY RIGHTS WHICH THE PARTIES MAY HAVE AT LAW OR OTHERWISE AS JOINT OWNERS OF THE
JOINT TECHNOLOGY, THE PARTIES HEREBY AGREE THAT NEITHER OF THEM WILL PRACTICE
ANY JOINT TECHNOLOGY, EXCEPT AS PROVIDED IN THIS SECTION 4.4 OR IN THEIR
PERFORMANCE HEREUNDER, WITHOUT THE EXPRESS WRITTEN CONSENT OF THE OTHER PARTY
DURING THE TERM AND FOR A PERIOD OF [*****] YEARS THEREAFTER.
5.
ADMINISTRATION OF THE COLLABORATION
5.1
ESTABLISHMENT AND FUNCTION OF RSC.
EPIX AND
SCHERING HEREBY ESTABLISH A "RESEARCH STEERING COMMITTEE" (OR "RSC") TO OVERSEE
THE RESEARCH PROGRAM.
THE RSC SHALL HAVE THE RESPONSIBILITIES AS SET FORTH IN
SECTION 5.1.4.
5.1.1
MEMBERSHIP.
(A)
THE RSC SHALL BE COMPRISED OF TWO (2) NAMED
REPRESENTATIVES