Baxter (i) [ * ]
percent ([ * ]%) of the [ * ] received by Cerus from the sublicensee on sales of
systems for inactivation of pathogens in whole blood, and (ii) [ * ] percent ([
* ]%) of the [ * ] received by Cerus from the sublicensee on sales of other
Residual Products.
Such payment shall be in lieu of the royalty payable under
Section 5.3(a).
(c)
For the purpose of clarity, a system for
the inactivation of pathogens in whole blood will bear only the royalty set
forth in this Section 5.4, and not any royalty under Sections 5.1 through 5.3
above.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
11
5.5
Country Restrictions.
(a)
The Parties recognize that in certain
countries Cerus may have the royalty rate or Cerus' ability to withdraw currency
from the country limited by the government in the context of a foreign exchange
registration or other agreement with the government.
If such restrictions
prohibit Cerus from paying the above-described royalties, then the Parties will
discuss other terms and conditions to reach an agreement that fairly provides
compensation to Baxter, and to the extent permitted and financially practical,
such as payment in local currency.
(B)
THE PARTIES ALSO RECOGNIZE THAT IN CERTAIN
COUNTRIES WITHIN THE TERRITORY CERUS MAY TAKE AN OWNERSHIP POSITION IN AN
ENTITY, E.G. CERUS' AFFILIATE, IN ORDER TO MAKE, SELL OR DISTRIBUTE THE PRODUCTS
IN THE COUNTRY AND IN COMPLIANCE WITH SUCH COUNTRY'S REGULATIONS.
IF CERUS
RECEIVES COMPENSATION OR EQUITY IN THE ENTITY IN PLACE OF ROYALTY PAYMENTS, THEN
THE PARTIES WILL DISCUSS OTHER TERMS AND CONDITIONS TO REACH AN AGREEMENT THAT
FAIRLY PROVIDES COMPENSATION TO BAXTER AND CERUS IN AN AMOUNT EQUIVALENT TO THE
ABOVE-DESCRIBED ROYALTIES.
5.6
UP-FRONT AND MILESTONE PAYMENTS.
FOR THE
AVOIDANCE OF DOUBT, IN THE EVENT THAT CERUS RECEIVES ANY UP-FRONT, MILESTONE,
LICENSE FEE OR SIMILAR PAYMENTS (COLLECTIVELY "LUMP SUM PAYMENTS") FROM ANY
SUBLICENSEE, COLLABORATOR OR PARTNER IN CONNECTION WITH THE GRANTING OF ANY
DEVELOPMENT, MARKETING, DISTRIBUTION OR OTHER RIGHTS UNDER THIS AGREEMENT, CERUS
[ * ].
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT (A) RIGHTS REVERT FROM
BIOONE TO BAXTER AND CERUS IN JAPAN AND/OR CHINA AS TO THE PLATELET SYSTEM, AND
(B) WITHIN [ * ] MONTHS OF THE DATE OF SUCH REVERSION, CERUS ENTERS INTO A
LICENSE AGREEMENT WITH A THIRD PARTY FOR COMMERCIALIZATION OF THE PLATELET
SYSTEM IN JAPAN OR CHINA, AS THE CASE MAY BE, THEN CERUS SHALL PAY TO BAXTER [ *
] OF ANY LUMP SUM PAYMENTS THAT ARE RECEIVED BY CERUS FROM THE THIRD PARTY FOR
SUCH LICENSE AND THAT RELATE TO SUCH COUNTRIES.
LUMP SUM PAYMENTS SHALL NOT BE
CONSIDERED TO INCLUDE ANY FUNDS PAID TO CERUS SPECIFICALLY FOR DEVELOPMENT OR
SUPPORT ACTIVITIES RELATING TO COMMERCIALIZATION OF THE PLATELET SYSTEM OR ANY