written approval of Sonus, which shall not be unreasonably withheld or
delayed.
All content or other specific graphic elements related to the Sonus
Marks provided by Sonus shall remain the property of Sonus and shall be used
only in the manner set forth in this Agreement except as otherwise approved by
Sonus.
(c)
Schering shall not take any action
inconsistent with Sonus' exclusive ownership of the Sonus Marks.
Schering shall
not publish, employ or cooperate in the publication of, any misleading or
deceptive advertising material with regard to Sonus or the Sonus Marks.
SECTION 2.04
IMPROVEMENTS.
SONUS SHALL PROMPTLY
NOTIFY SCHERING OF ANY IMPROVEMENTS AND OF ANY EFFORTS BY SONUS TO PATENT
IMPROVEMENTS IN THE TERRITORY INCLUDING, BUT NOT LIMITED TO, DESIGNATION OF THE
COUNTRIES IN WHICH ANY PATENT APPLICATION IN RESPECT THEREOF IS TO BE FILED- THE
OWNERSHIP, PROSECUTION AND MAINTENANCE WITH RESPECT TO ANY PATENT APPLICATION OR
TECHNOLOGY IN RESPECT OF SUCH IMPROVEMENT AND ANY PATENT ISSUED THEREFROM SHALL
BE HANDLED IN ACCORDANCE WITH ARTICLE IX OF THIS AGREEMENT.
ALL INTELLECTUAL
PROPERTY RIGHTS IN IMPROVEMENTS, INCLUDING UNDER SUCH PATENTS AND PATENT
APPLICATIONS, SHALL BECOME PART OF THE SONUS PATENT RIGHTS AND SONUS KNOW-HOW
LICENSED HEREUNDER, AND EXHIBIT B SHALL BE MODIFIED TO REFLECT THE ADDITION OF
SUCH PATENTS.
SECTION 2.05
COMPLIANCE WITH APPLICABLE LAWS.
SONUS AND SCHERING, AND THEIR RESPECTIVE AFFILIATES, SHALL PERFORM THEIR
OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
CO-PROMOTION ACTIVITIES, IN AN EFFORT TO DEVELOP AND COMMERCIALIZE THE PRODUCT
AND PERFORM ALL OF THEIR OBLIGATIONS HEREUNDER WITH RESPECT TO THE PRODUCT FOR
THE FIELD IN THE TERRITORY IN ACCORDANCE WITH ALL APPLICABLE LAWS.
NEITHER
PARTY NOR ITS AFFILIATES SHALL, OR SHALL BE REQUIRED TO, UNDERTAKE ANY
11
ACTIVITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WHICH VIOLATES, OR WHICH IT
BELIEVES, IN GOOD FAITH, MAY VIOLATE, ANY APPLICABLE LAW.
ARTICLE III
LICENSE FEE, MILESTONE AND ROYALTY PAYMENTS
SECTION 3.01
LICENSE FEE AND MILESTONE PAYMENTS.
IN PARTIAL CONSIDERATION FOR THE LICENSES GRANTED UNDER ARTICLE II, SCHERING
SHALL PAY TO SONUS THE AMOUNTS, AND AT THE TIMES, SET FORTH IN THIS SECTION.
(A)
INITIAL LICENSE FEE.
WITHIN TEN
(10) BUSINESS DAYS OF EXECUTION OF THIS AGREEMENT BY BOTH PARTIES, SCHERING
SHALL DELIVER INTO ESCROW AN INITIAL LICENSE FEE EQUAL TO TWENTY MILLION DOLLARS
($20,000,000) PURSUANT TO THE TERMS OF AN ESCROW AGREEMENT PROVIDED BY SCHERING
(THE TERMS OF WHICH SHALL BE REASONABLY ACCEPTABLE TO SONUS) WITH AN ESCROW
AGENT SELECTED BY SCHERING (AND REASONABLY ACCEPTABLE TO SONUS).
THE TERMS OF
THE ESCROW AGREEMENT WILL PROVIDE THAT (I) UPON EFFECTIVENESS OF THIS AGREEMENT
PURSUANT TO SECTION 16.01(A) HEREOF, THE INITIAL LICENSE FEE WILL BE PAID TO
SONUS AND (II) IF TERMINATION OF THE WAITING PERIOD OR APPROVAL UNDER THE HSR
ACT IS NOT RECEIVED WITHIN SIX MONTHS FROM THE DATE HEREOF THE INITIAL LICENSE
FEE SHALL BE RETURNED TO SCHERING.
(B)
PRODUCT MILESTONE PAYMENTS.
SCHERING SHALL
PAY THE FOLLOWING AMOUNTS WITHIN THIRTY (30) DAYS AFTER THE FIRST OCCURRENCE OF
EACH OF THE FOLLOWING PRODUCT-RELATED MILESTONES:
Milestone