RIGHTS, WHICH IS OF SIMILAR MARKET POTENTIAL AS THE
APPLICABLE SCHERING LICENSED PRODUCT.
FAILURE OF SCHERING TO COMPLY WITH THE
TERMS OF THIS SECTION 5.3 SHALL CONSTITUTE A DEFAULT UNDER SECTION 12.3 HEREOF
AND SHALL BE SUBJECT TO THE TERMS OF SECTION 12.3.2 HEREOF.
5.4.
LABELING AND PACKAGING.
IF EPIX HAS
EXERCISED ITS BUY-UP OPTION PURSUANT TO THE TERMS OF SECTION 6.1.4 HEREOF TO THE
MAXIMUM PERCENTAGE PROVIDED THEREUNDER FOR A SCHERING LICENSED PRODUCT, THE
LABELING AND PACKAGING FOR SUCH SCHERING LICENSED PRODUCTS SHALL BEAR EPIX'S
NAME AND LOGO, IN A FORM TO BE MUTUALLY AGREED UPON BY THE PARTIES, IN ADDITION
TO SCHERING'S NAME, TRADEMARK (TO BE SELECTED BY SCHERING IN ITS SOLE
DISCRETION), AND TRADE DRESS AND SUBJECT TO APPLICABLE LAWS AND REGULATIONS.
5.5.
REPORTS AND FORECASTS.
5.5.1.
REPORTS.
COMMENCING ON THE DATE THAT IS THREE MONTHS FOLLOWING THE
EXERCISE DATE SCHERING SHALL PROVIDE EPIX, NO LESS FREQUENTLY THAN ANNUALLY,
WITH BRIEF WRITTEN REPORTS SUMMARIZING SCHERING'S EFFORTS TO DEVELOP AND
COMMERCIALIZE SCHERING LICENSED PRODUCTS HEREUNDER.
11
5.5.2.
NOTIFICATION OF EVENTS.
IN ADDITION, SCHERING SHALL
PROVIDE EPIX WITH PROMPT WRITTEN NOTICE OF THE OCCURRENCE OF THE FIRST
COMMERCIAL SALE OF ANY SCHERING LICENSED PRODUCT IN ANY COUNTRY AND AGREES TO
PROVIDE EPIX WITH ADVERSE EVENT INFORMATION AND PRODUCT COMPLAINT INFORMATION
RELATING TO SCHERING LICENSED PRODUCTS AS COMPILED AND PREPARED BY SCHERING IN
THE NORMAL COURSE OF BUSINESS IN CONNECTION WITH THE DEVELOPMENT,
COMMERCIALIZATION OR SALE OF ANY SCHERING LICENSED PRODUCT, WITHIN TIME FRAMES
CONSISTENT WITH REPORTING OBLIGATIONS UNDER APPLICABLE LAWS AND REGULATIONS.
ALL REPORTS, UPDATES, ADVERSE EVENT, PRODUCT COMPLAINT, FORECASTS AND OTHER
INFORMATION PROVIDED BY ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT
(INCLUDING UNDER THIS SECTION 5.4), SHALL BE CONSIDERED CONFIDENTIAL INFORMATION
OF THE DISCLOSING PARTY, SUBJECT TO THE TERMS OF ARTICLE 9.
ARTICLE 6:
LICENSE PAYMENTS
6.1.
SCHERING LICENSE TERMS.
6.1.1.
UP-FRONT LICENSING FEE.
IN CONSIDERATION OF THE
GRANT OF THE LICENSE TO SCHERING BY EPIX AS DESCRIBED IN SECTION 5.1.2. HEREOF,
UPON THE EXERCISE DATE, SCHERING SHALL PAY TO EPIX AN UPFRONT LICENSE FEE (THE
"UPFRONT LICENSE FEE") EQUAL TO THE SUM OF [*****] ($[*****]) U.S. DOLLARS. THE
UPFRONT LICENSE FEE SHALL BE NONREFUNDABLE AND NONCREDITABLE.
6.1.2.
MILESTONE PAYMENTS.
IN FURTHER CONSIDERATION OF THE
GRANT OF THE LICENSE TO SCHERING BY EPIX AS DESCRIBED IN SECTION 5.1.2 AND
SUBJECT TO THE OTHER TERMS AND CONDITIONS OF THIS AGREEMENT, SCHERING SHALL MAKE
THE FOLLOWING NONREFUNDABLE, NONCREDITABLE PAYMENTS IN UNITED STATES DOLLARS TO
EPIX WITHIN THIRTY (30) DAYS OF THE FIRST OCCURRENCE OF EACH OF THE FOLLOWING
EVENTS BY SCHERING, ITS AFFILIATES OR SUBLICENSEES:
Milestone
Payment
[*****]
$
[*****]
[*****]
$
[*****]
[*****]
$
[*****]
It is hereby acknowledged and agreed that any milestone payment shall be made
only once, with respect to the first achievement of the relevant milestone for
the first Schering Licensed Product, regardless of how many times such
milestones are achieved by Schering Licensed Products and regardless of how many
times a particular Schering Licensed Product achieves such milestones.
6.1.3.
ROYALTIES.
IN