SIXTY (60)-DAY PERIOD AS SET FORTH ABOVE OR (B) TEN (10) BUSINESS DAYS
AFTER BMS HAS NOTIFIED MEDAREX IN WRITING OF THE AMOUNT OF THE SHORTFALL,
WHICHEVER IS THE LATER DATE.
B.
IF THERE IS A LOSS FOR SUCH QUARTER, THEN (I) THE PARTY THAT HAS BORNE
LESS THAN ITS SHARE OF THE ALLOWABLE EXPENSES IN SUCH QUARTER SHALL MAKE A
RECONCILING PAYMENT TO THE OTHER PARTY TO ASSURE THAT EACH PARTY BEARS ITS SHARE
OF SUCH ALLOWABLE EXPENSES DURING SUCH QUARTER AND (II) MEDAREX SHALL MAKE A
RECONCILING PAYMENT TO BMS (EITHER BY DIRECT PAYMENT TO BMS OR BY OFFSET OF
OTHER AMOUNTS PAYABLE BY BMS TO MEDAREX FOR SUCH QUARTER) EQUAL TO THE AGGREGATE
BMS CO-PROMOTION ROYALTY PAYABLE TO BMS FOR SUCH QUARTER.
6.5.2
LAST CALENDAR QUARTER.
NO SEPARATE PAYMENT SHALL BE MADE FOR
THE LAST QUARTER IN ANY YEAR.
INSTEAD, AT THE END OF EACH SUCH YEAR, A FINAL
RECONCILIATION SHALL BE CONDUCTED BY COMPARING THE SHARE OF PROFIT OR LOSS TO
WHICH A PARTY IS OTHERWISE ENTITLED FOR SUCH YEAR PURSUANT TO SECTIONS 6.4 AND
6.5 AGAINST THE SUM OF ALL AMOUNTS (IF ANY) PREVIOUSLY PAID OR RETAINED BY SUCH
PARTY FOR PRIOR QUARTERS DURING SUCH YEAR, AND THE PARTIES SHALL MAKE
RECONCILING PAYMENTS TO ONE ANOTHER NO LATER THAN NINETY (90) DAYS AFTER THE END
OF SUCH QUARTER, IF AND AS NECESSARY TO ENSURE THAT (I) EACH PARTY RECEIVES FOR
SUCH YEAR ITS SHARE OF PROFITS AND BEARS ITS SHARE OF LOSSES IN ACCORDANCE WITH
SECTIONS 6.4.1 AND 6.4.3, AS APPLICABLE, AND (II) BMS RECEIVES ITS FULL BMS
CO-PROMOTION ROYALTY DUE AND PAYABLE FOR SUCH YEAR."
4.
SECTION 6.6 OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND
REPLACED WITH THE FOLLOWING:
"6.6
ROYALTIES TO MEDAREX.
IN PARTIAL CONSIDERATION OF THE LICENSE RIGHTS
GRANTED BY MEDAREX TO BMS HEREUNDER, SUBJECT TO SECTIONS 3.8 AND 6.7, BMS SHALL
PAY TO MEDAREX ROYALTIES ON (I) EACH NON-CO-PROMOTED PRODUCT SOLD IN
[ * ] = 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.
3
THE UNITED STATES AND (II) EACH PRODUCT AND MDX-1379 SOLD IN THE ROYALTY
TERRITORY, ON THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 6.6.
6.6.1
UNITED STATES.
SUBJECT TO SECTION 6.7.3:
A.
BMS SHALL PAY MEDAREX A ROYALTY ON NET SALES AGGREGATED ACROSS ALL
NON-CO-PROMOTED PRODUCTS SOLD IN THE UNITED STATES IN A GIVEN YEAR EQUAL TO:
I.
FOR THAT PORTION OF AGGREGATE NET SALES OF NON-CO-PROMOTED PRODUCTS IN A
YEAR THAT IS LESS THAN OR EQUAL TO [ * ] OF SUCH AGGREGATE NET SALES, PROVIDED
THAT TO THE EXTENT THAT SOME OR ALL OF THE NET SALES OF SUCH NON-CO-PROMOTED
PRODUCTS IN SUCH TERRITORY WERE FOR USE IN INDICATIONS (A) WITH RESPECT TO WHICH
MEDAREX OPTED-OUT PURSUANT TO SECTION 3.8.2) AND (B) FOR WHICH INITIAL APPROVAL
HAS BEEN OBTAINED IN SUCH TERRITORY