TASK DEFINITION: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
PROBLEM: [ * ] = 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 406 of the Securities Act of 1933, as amended.   Exhibit 10.11      COLLABORATION AGREEMENT

BY AND BETWEEN

ASTELLAS PHARMA INC.

AND

FIBROGEN, INC.      June 1, 2005





CONFIDENTIAL   EXECUTION COPY   TABLE OF CONTENTS   ARTICLE 1 DEFINITIONS     1

1.1   Actions     1  1.2   Affiliate     1  1.3   Astellas Indemnitees     1  1.4   Astellas Territory     1  1.5   Authorized Designee     1  1.6   Bridging Strategy     1  1.7   Bulk Product     2  1.8   Commercialize     2  1.9   Completion     2  1.10   Confidential Information     2  1.11   Control or Controlled     2  1.12   Controlling Party     2  1.13   Data     2  1.14   Delivery or Delivered     2  1.15   Development Plan     2  1.16   Development Program     2  1.17   Enforcement Action     2  1.18   Event     2  1.19   Expanded Field     2  1.20   Expenses     2  1.21   FDA     2  1.22   FG Acquired Patents     3  1.23   FG Development Program     3  1.24   FG Indemnitees     3  1.25   FG Technology     3  1.26   FG Patents     3  1.27   FG Technical Information     3  1.28   FG Territory     3  1.29   Field     4  1.30   First Commercial Sale     4  1.31   Force Majeure Event     4  1.32   Fully Burdened Costs     4  1.33   Future Third Party Intellectual Property     4  1.34   GMP Guidelines     4  1.35   [ * ]     4  1.36   [ * ] Percentage     5  1.37   HIF     5    -i-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





TABLE OF CONTENTS (continued)           Page   1.38   IND     5  1.39   Indemnitee     5  1.40   Indemnitor     5  1.41   Indications     5  1.42   Initial Development Plan     5  1.43   Initiate or Initiation     5  1.44   Inspected Party and Inspecting Party     5  1.45   Joint Development Committee or JDC     5  1.46   Lead Compound     5  1.47   Listed Price     5  1.48   Litigation Agreement     5  1.49   Major Indication     6  1.50   Marketing Approval     6  1.51   Marketing Approval Application or MAA     6  1.52   Net Sales     6  1.53   Phase I     6  1.54   Phase II     6  1.55   Phase III     6  1.56   Product Specification     7  1.57   Preexisting Third Party Intellectual Property     7  1.58   Proof of Concept     7  1.59   Prosecution and Interference Activities     7  1.60   Protected Field     7  1.61   Reference Materials     7  1.62   Relevant Standards     7  1.63   Sales Price     7  1.64   Standard Materials     7  1.65   Sublicensee     8  1.66   Technical Product Failure     8  1.67   Third Party Agreements     8  1.68   Third Party Licensor     8

ARTICLE 2 JOINT DEVELOPMENT COMMITTEE     8

2.1   Joint Development Committee     8  2.2   Membership     8  2.3   JDC Meetings     8  2.4   Decisions     9

ARTICLE 3 DEVELOPMENT PLANS     9

3.1   General     9  3.2   Annual Review     9  3.3   Periodic Reviews     9

ARTICLE 4 DEVELOPMENT PROGRAM     10

4.1   Development Program for the Astellas Territory     10    -ii-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





TABLE OF CONTENTS (continued)           Page  4.2   Global Harmonization     10  4.3   Selection of Lead Compounds     10  4.4   Regulatory Matters     11

ARTICLE 5 RECORDKEEPING; PUBLICATION     13

5.1   Reports and Records     13  5.2   Review of Publications     14

ARTICLE 6 DEVELOPMENT PROGRAM FUNDING     15

6.1   Payments for Reimbursement; Net Payments     15

ARTICLE 7 USE OF PRECLINICAL AND CLINICAL DATA     17

7.1   Exchange     17  7.2   Disclosure     18  7.3   Regulatory Requirements     18  7.4   Review of Protocols     18

ARTICLE 8 MARKETING RIGHTS     19

8.1   Astellas     19  8.2   FibroGen     19  8.3   Covenants     19

ARTICLE 9 TRANSFER PRICING     20

9.1   Transfer for Non-Commercial Purpose     20  9.2   Transfer for Commercial Purpose     21  9.3   Payment     22  9.4   Reference Materials; Standard Materials     22

ARTICLE 10 ADDITIONAL PAYMENTS; BOOKS AND RECORDS     22

10.1   Quarterly Reports     22  10.2   Payment Method     22  10.3   Currency Conversion     23  10.4   Taxes     23  10.5   Records; Inspections     24

ARTICLE 11 DUE DILIGENCE     24

11.1   Astellas' Due Diligence     24  11.2   FG's Due Diligence     24  11.3   Development Diligence     25

ARTICLE 12 MANUFACTURING RIGHTS     26

12.1   Procedures     26  12.2   FG Right     27  12.3   Manufacture and Supply     27  12.4   Product Specifications     27  12.5   Orders Forecast     27    -iii-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





TABLE OF CONTENTS (continued)           Page   12.6   Shipment     28  12.7   Inspection of Shipment/Right to Reject     28  12.8   Inspection of Facilities     28  12.9   Recall     29  12.10   Warranty     29  12.11   Interruption in Supply     29  12.12   Reference and Standard Materials     29

ARTICLE 13 LICENSE GRANTS     29

13.1   Grant to Astellas     29  13.2   Sublicenses     29  13.3   No Rights Beyond Lead Compounds     30  13.4   Expanded Field Negotiation     30

ARTICLE 14 INTELLECTUAL PROPERTY     30

14.1   Ownership of Inventions     30  14.2   Patent Prosecution     31  14.3   Defense of Third Party Infringement Claims     31  14.4   Enforcement     32  14.5   Third Party Agreements     33

ARTICLE 15 REPRESENTATIONS AND WARRANTIES     34

15.1   FG Warranties     34  15.2   Astellas Warranties     34  15.3   Disclaimer of Warranties     34

ARTICLE 16 CONFIDENTIALITY     35

16.1   Confidential Information     35  16.2   Permitted Disclosures     35  16.3   Clinical Data     36  16.4   Press Releases     36

ARTICLE 17 INSURANCE; INDEMNIFICATION     36

17.1   Insurance     36  17.2   Indemnification of FG     36  17.3   Indemnification of Astellas     37  17.4   Procedure     37

ARTICLE 18 TERM AND TERMINATION     37

18.1   Term     37  18.2   Termination for Cause or Technical Product Failure     37  18.3   Termination in case of Generic Competition     38  18.4   Negative Advice from Authorities     39  18.5   Admission of Invalidity or Unenforceability of FG Patent     39  18.6   Termination upon Notice     39    -iv-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





TABLE OF CONTENTS (continued)           Page   18.7   Effect of Termination     39

ARTICLE 19 DISPUTE RESOLUTION     40

19.1   Disputes     40  19.2   Full Arbitration     40

ARTICLE 20 MISCELLANEOUS     41

20.1   Confidential Terms     41  20.2   Governing Law     41  20.3   Force Majeure     41  20.4   No Implied Waivers; Rights Cumulative     42  20.5   Independent Contractors     42  20.6   Notices     42  20.7   Assignment     43  20.8   Modification     43  20.9   Severability     43  20.10   Counterparts     43  20.11   Headings     43  20.12   Export Laws     43  20.13   Language     43  20.14   Entire Agreement     43

EXHIBIT A LIST OF PATENTS     45

EXHIBIT B INDICATIONS     46

EXHIBIT C INITIAL DEVELOPMENT PLAN     47    -v-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   COLLABORATION AGREEMENT

This COLLABORATION AGREEMENT (Agreement), effective as of June 1, 2005 (the Effective Date), is made by and between FibroGen, Inc., a Delaware corporation having offices at 225 Gateway Boulevard, South San Francisco, California 94080 (FG or FibroGen), and Astellas Pharma Inc., a Japanese corporation having offices at 3-11 Nihonbashi-Honcho, 2-Chome, Chuo-ku, Tokyo, 103-8411 Japan (Astellas).

BACKGROUND

A. FG has a research and development program focused on the development of small molecule prolyl hydroxylase inhibitors which stabilize hypoxia inducible factor (HIF), for the treatment of anemia.

B. Astellas desires to collaborate with FG on the development and commercialization of, and license the rights to use as therapeutics, certain small molecule prolyl hydroxylase inhibitors on the terms and conditions set forth below for use in the Astellas Territory (as defined below).

NOW THEREFORE, for and in consideration of the covenants, conditions, and undertakings hereinafter set forth, it is agreed by and between the parties as follows:

ARTICLE 1 DEFINITIONS

1.1 Actions shall have the meaning as set forth in Section 14.3 below.

1.2 Affiliate shall mean any entity which controls, is controlled by or is under common control with Astellas or FG. For purposes of this definition only, control shall mean beneficial ownership (direct or indirect) of at least fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority).

1.3 Astellas Indemnitees shall have the meaning as set forth in Section 17.3 below.

1.4 Astellas Territory shall mean the country of Japan.

1.5 Authorized Designee shall mean an officer of FG or Astellas, as the case may be, designated by the Chief Executive Officer of the respective corporation, that has been granted full authority to resolve a dispute arising between FG and Astellas as required under Section 2.4 or Section 19.1 hereof.

1.6 Bridging Strategy shall mean the decision by Astellas to file an MAA in the Astellas Territory by submitting the data from the Phase III clinical trial of FG or its Affiliate or Sublicensee.   -1-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.7 Bulk Product shall mean a Lead Compound supplied by FG to Astellas as a bulk formulated drug (such as in a form, including, but not limited, to a capsule, tablet or caplet formulation) without packaging.

1.8 Commercialize shall mean directly or indirectly develop, manufacture, sell, market or distribute.

1.9 Completion shall be deemed to occur, with respect to a particular clinical trial for a Lead Compound, upon clinical database lock for such trial.

1.10 Confidential Information shall have the meaning as set forth in Section 16.1 below.

1.11 Control or Controlled shall mean possession of the ability to grant a license or sublicense as provided for herein without violating the terms of an agreement with a third party.

1.12 Controlling Party shall have the meaning as set forth in Section 14.3 below.

1.13 Data shall have the meaning as set forth in Section 7.1 below.

1.14 Delivery or Delivered shall mean when Lead Compound is made available by FG to Astellas at the Ex Works location.

1.15 Development Plan shall mean the plan for the Development Program in effect from time to time, as established in accordance with Article 3 below.

1.16 Development Program shall mean all Astellas activities with respect to the development and commercialization of Lead Compounds for applications within the Field in the Astellas Territory, in accordance with the Development Plan in effect at that time.

1.17 Enforcement Action shall have the meaning as set forth in Section 14.4 below.

1.18 Event shall have the meaning as set forth in Article 6 below.

1.19 Expanded Field shall mean the treatment of any indications in which therapeutic utility is derived from [ * ], including, without limitation, [ * ]. The Expanded Field shall not include the Field.

1.20 Expenses shall have the meaning as set forth in Section 14.3 below.

1.21 FDA shall mean the U.S. Food and Drug Administration, or any successor agency.   -2-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.22 FG Acquired Patents shall mean those FG Patents that are in-licensed or otherwise acquired by FG.

1.23 FG Development Program shall mean those activities by or on behalf of FG directly related to the development and commercialization of Lead Compounds for applications within the Field in the FG Territory that are directly useful or necessary for Commercialization in the Astellas Territory.

1.24 FG Indemnitees shall have the meaning as set forth in Section 17.2 below.

1.25 FG Technology shall mean FG Patents and FG Technical Information.

1.26 FG Patents shall mean all patents including all reissues, renewals, re-examinations and extensions thereof, and any patent applications therefor, including all divisionals or continuations, in whole or in part, thereof, which claim or otherwise cover the composition, manufacture, sale or use of a Lead Compound and that are Controlled by FG or its Affiliates during the term of this Agreement, subject to Section 14.5.1. For purposes of this definition, a patent or patent application shall be deemed to cover a Lead Compound if the manufacture, use or sale of such Lead Compound would, but for the license granted herein, infringe, contributorily infringe or constitute inducement to infringement of such patent or patent application, if issued or granted as pending. All patents and patent applications listed on Exhibit A, as revised from time to time to remove patents and/or patent applications by mutual agreement or to add patents and/or patent applications by FG, shall be within the scope of definition of the FG Patents, provided, however, that in the event FG designates any additional Lead Compounds, FG shall add to the list on Exhibit A patents and patent applications which claim or otherwise cover the composition, or manufacture, sale or use of the additional Lead Compounds within the Field and the Astellas Territory, and upon the cessation of the designation as any compound as Lead Compound and Astellas' cessation of development of such Lead Compound, FG shall remove at its sole discretion the related patent or patent application from Exhibit A.

1.27 FG Technical Information shall mean confidential information, tangible and intangible, and materials, including, but not limited to: trade secrets and know how, pharmaceutical, chemical, biological and biochemical compositions; and technical and non-technical data and information, and/or the results of tests, assays, methods and processes; and plans, specifications and/or other documents containing said information and data; in each case that is possessed by FG as of the Effective Date or discovered, developed or Controlled by FG or its Affiliates during the term of this Agreement, to the extent such relates to the development, manufacture, sale or use of a Lead Compound subject to Section 14.5.1, and such information related to a candidate for use as a Lead Compound provided by FG to Astellas in connection with the Lead Compound selection decision consultation process described in Section 4.3.

1.28 FG Territory shall mean all areas of the world outside of the Astellas Territory.   -3-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.29 Field shall mean the treatment of anemia solely in the Indications, by means of the stabilization of HIF causing the stimulation of erythropoiesis (including an increase in endogenous erythropoietin production) and/or a subsequent increase in hematocrit through modulation of prolyl hydroxylase and/or asparaginyl hydroxylase. For purposes of clarity, FG and Astellas agree and acknowledge that the Field and the Indications exclude [ * ].

1.30 First Commercial Sale shall mean, with respect to each Lead Compound, the first bona fide commercial sale of such Lead Compound to a non-Affiliate third party by or under authority of Astellas or FG, or their Affiliates or Sublicensees, as the case may be, in the FG Territory or the Astellas Territory, respectively.

1.31 Force Majeure Event shall mean the occurrence of any event causing a failure to perform where failure to perform is beyond the reasonable control of the non-performing party, as described in Section 20.3.

1.32 Fully Burdened Costs with respect to a Lead Compound shall mean all costs to produce, package and distribute the product to Astellas or its carrier at the Ex Works location (in compliance with Section 12.6) and any royalties or other consideration (not reimbursed by Astellas) paid to third parties related to the acquisition or sale of product, with costs to produce and package the product to include the direct material, labor and indirect costs that are incurred by FG or its Affiliate(s) associated with the manufacture, filling, packaging, labeling, preparation of product for shipment and/or other preparation of such Lead Compound, as applicable, including, but not limited to taxes, fees, and customs incurred, as applicable. Costs will be determined in accordance with U.S. Generally Accepted Accounting Principles (U.S. GAAP) and will include but not be limited to the costs of facilities, labor, purchasing, depreciation of equipment, materials, payments to third parties for any necessary contract work related to the manufacture or testing of the product, the validation studies, quality assurance, quality control and other testing, storage, shipping (if requested by Astellas), costs related to distribution and a reasonable allocation of general and administrative overhead. Costs related to distribution include the labor, materials and overhead necessary to prepare and package the final product for shipment to the Ex Works location.

1.33 Future Third Party Intellectual Property shall mean any intellectual property rights, including without limitation all patents, trademarks, or copyrights, and any applications therefor, including any applications for registration, issuance, or grant thereof, owned or Controlled by a third party that are necessary for the practice of the license granted hereunder that were not owned or Controlled by FG as of the Effective Date and that do not qualify as Pre-existing Third Party Intellectual Property under Section 1.56.

1.34 GMP Guidelines shall mean then-current applicable Good Manufacturing Practices guidelines and regulations of the FDA.

1.35 [ * ] shall have the meaning as set forth in Section 1.36 below.   -4-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.36 [ * ] Percentage shall be determined, for any Lead Compound, (i) by dividing (a) the [ * ], which shall be defined as the difference between (x) the [ * ], and (y) the [ * ], by (b) the [ * ]; and (ii) multiplying the result of (i) above by 100.

1.37 HIF shall mean hypoxia inducible factor.

1.38 IND shall mean an Investigational New Drug application, as defined in the U.S. Federal Food, Drug and Cosmetic Act and the regulations promulgated thereunder, or comparable filing in a foreign jurisdiction, in each case with respect to a Lead Compound for use within the Field.

1.39 Indemnitee shall have the meaning as set forth in Section 17.4 below.

1.40 Indemnitor shall have the meaning as set forth in Section 17.4 below.

1.41 Indications shall mean those indications listed on Exhibit B and any other indications to be agreed upon hereafter between FG and Astellas, each of which shall be referred to as an Indication.

1.42 Initial Development Plan shall mean the Initial Development Plan as described in Section 3.2.1 hereof.

1.43 Initiate or Initiation shall mean with respect to a particular clinical trial for a Lead Compound, the initial dosing of the first patient in such trial in accordance with the protocol therefor.

1.44 Inspected Party and Inspecting Party shall have the meanings as set forth in Section 10.5 below.

1.45 Joint Development Committee or JDC shall have the meaning as set forth in Section 2.1 below.

1.46 Lead Compound shall mean any compound Controlled by FG that is designated by FG as a lead compound for clinical development in an Indication in accordance with Section 4.3 for the duration of such designation. Any Lead Compound which receives a Marketing Approval in the Astellas Territory shall remain a Lead Compound for the duration of such Marketing Approval. As of the Effective Date, FG-2216 shall be deemed to be a Lead Compound.

1.47 Listed Price shall have the meaning as set forth in Section 9.2.

1.48 Litigation Agreement shall have the meaning as set forth in Section 14.4 below.   -5-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.49 Major Indication shall have the meaning set forth in Section 11.3.1 below.

1.50 Marketing Approval shall mean, with respect to each Lead Compound, approval in the Astellas Territory by the Japanese Ministry of Health, Labour and Welfare, or in the FG Territory by U.S. or European regulatory authorities, as the case may be, to market such Lead Compound for an indication within the Field. It is understood that pricing or reimbursement approval shall constitute a part of the Marketing Approval. In any event, Marketing Approval shall be deemed to have occurred with respect to a Lead Compound no later than the date of the First Commercial Sale of such Lead Compound in the FG Territory or the Astellas Territory as the case may be, by or under authority of FG or Astellas respectively, or their Affiliate or Sublicensee, as the case may be, whether or not formal approval by the relevant health regulatory authority is required for the First Commercial Sale of such Lead Compound.

1.51 Marketing Approval Application or MAA shall mean, within the FG Territory, a New Drug Application or similar application as required under the U.S. Federal Food, Drug and Cosmetics Act and the regulations promulgated thereunder, or such similar filing in Europe, or a comparable filing for Marketing Approval in the Astellas Territory, in each case with respect to a Lead Compound for use within the Field.

1.52 Net Sales shall mean the gross amount billed or invoiced by Astellas, its Affiliates and its Sublicensees to unaffiliated third parties for the Lead Compound(s) in bona fide arm's length transaction, less the following deductions:

  i) credits or allowances, if any, given or made on account of rejection or return of the Lead Compound(s);

  ii) trade and quantity discounts actually allowed and taken in such amounts as are customary in the trade;

  iii) duties, sales taxes, excise taxes, insurance and transportation charges actually paid; and

  iv) charge back payments or rebates actually paid to wholesalers.

1.53 Phase I shall mean human clinical trials, the principal purpose of which is preliminary determination of safety in healthy individuals or patients as required in 21 C.F.R. §312.21, or similar clinical study in a country other than the United States, and for which there are no primary endpoints relating to efficacy included in the protocol.

1.54 Phase II shall mean human clinical trials, for which the primary endpoints include a determination of dose ranges and/or a preliminary determination of efficacy in patients with the Indication being studied as required in 21 C.F.R. §312.21, or similar clinical study in a country other than the United States.

1.55 Phase III shall mean human clinical trials, the principal purpose of which is to establish safety and efficacy of one or more particular doses in patients with the Indication being studied as required in 21 C.F.R. §312.21, or similar clinical study in a country   -6-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   other than the United States. For purposes of this Section 1.55, and Sections 1.53 and 1.54 above, a particular trial that (i) is intended to overlap two phases of trials, (ii) combines the elements of two phases of trials, or (iii) is treated by the FDA or comparable foreign agency as two phases of trials, such as a Phase I/II trial or a Phase II/III trial, shall be deemed a trial of the later, as well as the earlier, phase (i.e., a Phase II and a Phase III, respectively).

1.56 Product Specification shall mean, with respect to a Bulk Product, the written document describing, the testing procedures and results required to determine compliance with release specifications, including, and quality control testing procedures to be determined, and be amended from time to time, by mutual agreement of both parties. The release specifications of such Product Specifications shall be determined taking into account and shall be designed to meet the shelf life requirements of the Japanese Ministry of Health, Labor and Welfare for the Lead Compound, provided, that the Product Specifications shall not require compliance with such shelf life requirements.

1.57 Preexisting Third Party Intellectual Property shall mean any intellectual property rights, including without limitation all patents, trademarks, copyrights, and any applications therefor, including any applications for registration, issuance, or grant thereof, owned or Controlled by a third party that are necessary for the practice of the license granted hereunder and that the existence of which was discoverable or otherwise could have been known on or prior to the Effective Date and were not owned or Controlled by FG as of the Effective Date.

1.58 Proof of Concept shall mean for any Indication, a demonstration of correction of anemia in relevant patients in a human clinical study.

1.59 Prosecution and Interference Activities shall mean the preparation, filing, prosecution and maintenance of patent applications and patents and any continuing applications thereof, and any re-examinations, reissues, renewals and requests for patent term extensions therefor, and any U.S., international or foreign counterparts of any of the foregoing, together with the conduct of any interference, opposition or other similar proceeding pertaining to patent applications or patents.

1.60 Protected Field shall have the meaning as set forth in Section 14.1.

1.61 Reference Materials shall have the meaning as set forth in Section 12.12 below.

1.62 Relevant Standards shall have the meaning as set forth in Section 12.8 below.

1.63 Sales Price shall mean the price per unit obtained by dividing the Net Sales during the relevant calendar quarter by the number of units sold during the same period.

1.64 Standard Materials shall have the meaning as set forth in Section 12.12 below.   -7-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   1.65 Sublicensee shall mean a third party to whom FG or Astellas has directly or indirectly granted the right in its respective territory to make, use and sell a Lead Compound or a third party to whom FG or Astellas has directly or indirectly granted the right to distribute a Lead Compound supplied by FG or Astellas (respectively). For purposes of this Agreement, FG and Astellas shall not be deemed Sublicensees of the other.

1.66 Technical Product Failure shall mean as a [ * ], which is not attributed to Astellas' failure to fulfill its obligations hereunder.

1.67 Third Party Agreements shall mean collectively those agreements between FG and a third party existing as of the Effective Date, pursuant to which FG obtained rights applicable to the development, manufacture, sale or use of Lead Compounds hereunder (but excluding options or similar agreements to acquire such rights). If, after the Effective Date, FG enters into an agreement to license or acquire rights from a third party with respect to subject matter to be utilized in connection with Lead Compounds in accordance with Section 14.5 below, such agreements shall also be deemed Third Party Agreements for purposes of this Agreement.

1.68 Third Party Licensor shall have the meaning as set forth in Section 14.5.1 below.

ARTICLE 2 JOINT DEVELOPMENT COMMITTEE

2.1 Joint Development Committee. Astellas and FG shall establish a joint development committee to oversee, review and coordinate the research and development of Lead Compounds for applications within the Field pursuant to the Development Program (Joint Development Committee or JDC). From time to time, the JDC may establish subcommittees or project teams to oversee particular projects or activities, and such subcommittees or project teams will be constituted as the JDC agrees (e.g., for oversight of the development or other day-to-day matters).

2.2 Membership. The JDC shall be comprised of an equal number of representatives from each of Astellas and FG, selected by such party. The exact number of such representatives shall be [ * ] for each of Astellas and FG, or such other number as the parties may agree. Subject to the foregoing provisions of this Section 2.2, FG and Astellas may replace its respective JDC representatives at any time, upon prior written notice to the other party.

2.3 JDC Meetings. The JDC shall meet no fewer than [ * ] times each calendar year, or as otherwise agreed by the parties, with the understanding that [ * ] meetings are to be held at mutually agreed locations alternating among Japan, California, Hawaii, or at such other locations as the parties agree, and the other [ * ] meetings are to be held by means of telecommunication, videoconference or correspondence as deemed appropriate. The parties shall conduct team meetings at the same time and location as the JDC meetings. At its meetings, the JDC will, as applicable, (i) formulate and review the Development Program objectives, including approval of all proposed pre-clinical and clinical studies to be performed, (ii) monitor the progress of the Development Program toward those objectives, (iii) review and approve the   -8-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   Development Plan, pursuant to Section 3.3 of this Agreement, including review, approve and monitor the progress of the clinical and regulatory plans, (iv) resolve issues surrounding the marketing of the Lead Compounds, (v) discuss the selection of Lead Compounds, (vi) coordinate manufacturing issues, including the development of standards, scheduling of batch production, and qualification with regulatory requirements for the Astellas Territory, (vii) resolve issues arising out of the Development Program or this Agreement, and (viii) undertake and/or approve such other matters as are specifically provided for the JDC under this Agreement. One meeting each year will be focused specifically on setting Development Program goals and strategy. Other representatives of FG or Astellas may attend JDC or subcommittee meetings as non-voting observers. Astellas' lead representative shall chair the meetings and shall be responsible for preparing the agenda and minutes for such meetings, and shall provide such minutes to FG in English. Such minutes as approved by the JDC shall constitute the official record of the actions of the JDC. The JDC may also convene or be polled or consulted from time to time by means of telecommunications, videoconferences or correspondence, as deemed necessary or appropriate. Each party shall bear its own personnel, travel and lodging expenses relating to JDC meetings.

2.4 Decisions. Decisions of the JDC shall be made by unanimous agreement of the members present in person or by other means (e.g., teleconference) at any meeting; provided that at least two (2) representatives of each party is present at such meeting. In the event that the JDC is unable to reach unanimous agreement on an issue, the issue shall be referred for resolution in accordance with Article 19 hereof.

ARTICLE 3 DEVELOPMENT PLANS

3.1 General. Subject to Section 3.2 below, Astellas shall prepare and propose to the JDC a detailed Development Plan pursuant to which the Development Program will be performed. The Development Plan shall specify the objectives and work plan activities by Astellas with respect to the Development Program.

3.2 Annual Review

3.2.1 Initial Development Plan. The initial Development Plan is attached hereto as Exhibit C (the Initial Development Plan), and shall be fixed for the period from the Effective Date through March 31, 2006, unless otherwise agreed by the JDC.

3.2.2 Other. Beginning upon the date of signing of this Agreement and by December 31 of each year thereafter until expiration or termination of this Agreement, Astellas shall submit to the JDC the proposed plan required under Section 3.1 above for the following fiscal year, including for regulatory activities within the Astellas Territory. The JDC shall review such proposals as soon as possible and shall approve the Development Plan for such following fiscal year, with such changes as the JDC may agree to the plan proposed by Astellas, no later than March 15 of the current fiscal year.

3.3 Periodic Reviews. The JDC shall review the Development Plan on an ongoing basis and may make changes thereto including variances to the Development Plan in effect.   -9-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   ARTICLE 4 DEVELOPMENT PROGRAM

4.1 Development Program for the Astellas Territory. Astellas shall follow FG's development activities for the Lead Compounds, (i.e., Astellas shall develop, and shall have the right and obligation to develop, only those compounds that FG has designated as Lead Compounds, for the duration of such designation and for which FG or its Sublicensee is pursuing clinical development in the FG Territory), for those Indications being developed by FG or its sublicensee, and such Astellas development shall comply with, without limitation the procedures set forth in Section 11.3.1. In fulfillment thereof, Astellas shall conduct, directly or through third parties, the Development Program for the Astellas Territory, all in accordance with the Development Plan then in effect, and shall be responsible for all costs related to the Astellas Territory. Astellas agrees to keep the JDC informed as to the progress of its activities under the Development Program for Lead Compounds hereunder. FG shall, subject to Section 4.2.2, provide reasonable assistance to Astellas regarding Astellas' performance of its development activities within the scope of the Development Program hereunder and provide updates to Astellas as to the FG Development Program. It is understood and agreed that the Development Program for the Astellas Territory shall include all clinical trials and other development activities necessary to obtain Marketing Approvals for Lead Compounds for the Astellas Territory.

4.2 Global Harmonization

4.2.1 Reporting; Redundant Activities. FG shall provide to Astellas regular reports with respect to the FG Development Program with respect to the Lead Compounds. Such reports may be provided at the JDC meetings provided for in Section 2.3. Recognizing that the Lead Compounds may be developed on a global basis and that regulatory and budget efficiencies can be achieved through the worldwide use of appropriate data and files, the parties will seek to design pre-clinical and clinical development activities included in the Development Plan in a manner to maximize global clinical and regulatory harmonization.

4.2.2 Additional Activities. Without limiting the obligations set forth in 4.2.1, the costs of any non-clinical or clinical developmental work, whether performed by Astellas or FG, to support needs specific to the Astellas Territory and not required to be performed for the FG Territory, or at the request of Astellas, shall be borne by Astellas.

4.3 Selection of Lead Compounds. FG shall consult with Astellas with respect to Lead Compound selection, and shall provide to Astellas information as reasonably necessary to evaluate Lead Compound candidates in connection with the Lead Compound selection process, including without limitation the information relating to patent situations in the Astellas Territory. For the avoidance of doubt, such Lead Compound candidates shall potentially include any and all compounds Controlled by FG during the term hereof for use in the Field. Notwithstanding anything contained in this Agreement, FG shall designate, at its sole discretion but in line with the basic policy that the same Lead Compound shall be Commercialized both in Astellas Territory and FG Territory for the same Indication(s), Lead Compound(s) in accordance with the terms of this Section 4.3, and shall notify the JDC of such designations. At any one time, FG may designate up to two (2) Lead Compounds for Commercialization in any Indication; provided, that in the event that FG designates two (2) Lead   -10-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   Compounds for Commercialization in an Indication, it shall designate one (1) as the primary Lead Compound and one (1) as the secondary Lead Compound. In the event FG determines to cease development of a primary Lead Compound in an Indication, FG may designate the secondary Lead Compound as the primary Lead Compound for such Indication. In the event, prior to Marketing Approval in the Astellas Territory, FG determines to stop development of a Lead Compound, FG shall notify the JDC, and upon such notification, such compound shall no longer be considered a Lead Compound; provided, however, that Astellas may complete those development activities on-going at the time of such notification for such Lead Compound for a reasonable period of time, unless such notification is based on safety concerns. In the event FG determines to [ * ], FG shall [ * ] within [ * ] days of such [ * ]. In the event that FG [ * ], Astellas may, subject to the [ * ], [ * ], provided, however, that the [ * ] shall apply upon the [ * ] set forth in such Sections, rather than the [ * ].

4.4 Regulatory Matters

4.4.1 Regulatory Filing. FG shall be responsible, directly or through third parties, for the preparation, filing and maintenance of all regulatory documents in the FG Territory with respect to the Lead Compound(s), which shall be filed in the name of FG or its designee. Astellas shall be responsible for all preparation, filing and maintenance of all regulatory documents in the Astellas Territory with respect to the Lead Compound(s), which shall be filed in the name of Astellas. Astellas shall select and own the trademark(s) to be used to identify any Lead Compound in the Astellas Territory.

4.4.2 Reporting Adverse Experiences

(a) With respect to adverse drug experiences relating to any Lead Compound, the parties shall promptly report such experiences to the appropriate regulatory authorities in the countries in which such Lead Compound is being developed or commercialized, in accordance with the appropriate laws and regulations of the relevant countries and authorities, and each party shall ensure that its Affiliates and Sublicensees comply with such reporting obligations. In addition, in order that each party may be fully informed of these experiences, each party shall report to the other party all adverse events involving such Lead Compound. Serious adverse events for all fatal and life-threatening adverse events shall be reported to the designated safety contact person of the other party by e-mail within five (5) calendar days of a party's and/or its agent's becoming aware of such an event (a reporting party), and all other serious adverse events shall be forwarded to the other party within seven (7) calendar days of the reporting party's and/or its agent's becoming aware of such an event. To the extent legally possible, FG and Astellas shall report to the other all serious adverse events with respect to a Lead Compound in the Field at least twenty-four (24) hours prior to reporting the same to a regulatory authority, and shall report adverse events which may constitute a dose limiting toxicity in a reasonably prompt time after the occurrence of such event. The reporting party shall report all non-serious adverse events on a monthly basis; provided that, non- serious adverse event data arising from a clinical trial will be included in the clinical trial report which   -11-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   shall be prepared and sent to the other party as soon as practicable following completion of the final clinical report.

(b) An adverse event is any negative symptom experienced at the time of or after the taking of a medicinal (investigational) product, whether or not considered a medicinal (investigational) product related, including any side effects, injury, toxicity or sensitivity reaction, or significant failure of expected pharmacological action. Also included are instances of symptomatic overdose, abuse or withdrawal reactions.

(c) A serious adverse event includes any of the following outcomes: death, a life-threatening event; that is, an adverse event that puts the patient at risk of dying, requires hospitalization, prolongs existing hospitalization or results in persistent or significant incapacity or disability, congenital anomaly/birth defect. Other important medical events that may otherwise jeopardize a patient or may require intervention to prevent one of the statuses of patients listed in the preceding sentence shall also be considered serious.

(d) The parties also agree to develop and implement such other procedures as may be necessary or appropriate to ensure that each party remains in compliance with all reporting requirements imposed by any regulatory authority in the Astellas Territory, and in the FG Territory. Upon the Initiation of Phase III, FG shall implement and be responsible for the maintenance of a complete global safety database. FG will be responsible for preparing, with Astellas' cooperation set forth below in this Section 4.4.2(d), Periodic Safety Reports for clinical studies requested by European and U.S. authorities, and Periodic Safety Update Reports (PSURs). FG shall send a draft PSUR for review to Astellas in the beginning of week 5 after database lock point. Astellas has one week for review. FG shall provide copies of the final PSURs to Astellas in the same timing as they are submitted to the authorities. Astellas will provide FG with the data needed for making the PSURs. Maintenance of Company Core Safety Information (CCSI) is under the responsibility of FG who will communicate all revisions to Astellas. FG shall prepare the periodic safety reports for clinical studies requested by European and U.S. authorities and provide Astellas with the copy of such reports at the time of submission to the regulatory authorities in the FG Territory. Astellas will provide FG with the data needed for making such periodic safety reports.

(e) Each party shall immediately inform the other party of measures taken in order not to jeopardize public health or hygiene including but not limited to, discontinuation of manufacture, import and marketing, clinical trial suspension, recall and disposal of the Lead Compound or the product or the prescription product, irrespective of whether it is due to regulatory actions or voluntary actions.   -12-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   (f) Both parties hereby nominate the safety contact persons as follows:

Medical Affairs Department FibroGen, Inc. 225 Gateway Boulevard San Francisco, California 94080 Attn: Vice President, Medical Affairs Tel: 1-650-866-7875 Fax: 1-650-866-7360 E-mail:dyeowell@fibrogen.com

With a copy to: Chief Executive Officer FibroGen, Inc. 225 Gateway Boulevard San Francisco, California 94080 Tel: 1-650-866-7200 Fax: 1-650-866-7201 E-mail:tneff@fibrogen.com Pharmacovigilance Department, QA, RA, and Pharmacovigilance Division Astellas Pharma Inc. [ * ]

The safety contact persons for each party hereto may be updated from time to time as necessary upon notice to the other party.

ARTICLE 5 RECORDKEEPING; PUBLICATION

5.1 Reports and Records. Each of Astellas and FG shall use best efforts to maintain (or cause such records to be maintained) records of the Development Program and FG Development Program, respectively, in sufficient detail and in good scientific manner as will properly reflect all work done and results achieved in the performance of the Development Program or FG Development Program, as the case may be. Upon [ * ] days advance notice or such shorter time period as may be required in order to meet any regulatory requirements, each party shall allow the other party to have access to all records, materials and data generated by or on behalf of such party with respect to each Lead Compound for applications within the Field at reasonable times, in a reasonable manner and, upon request, to the extent required under Article 7 hereof.   -13-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   5.1.1 Retention. Each of Astellas and FG shall retain its records for the minimum period of time required by applicable law in all cases, and for not less than [ * ] following the expiration or termination of this Agreement.

5.1.2 Reports. Not less than [ * ] prior to each JDC meeting under Section 2.3 above, each of Astellas and FG shall provide the JDC with a written report in English; Astellas' report summarizing the progress of the Development Program, including the developmental, clinical and other activities performed by Astellas, its Affiliates and/or Sublicensees with respect to each Lead Compound during the preceding period; and FG's report summarizing the progress of the FG Development Program.

5.1.3 Activities Outside the Field. The parties understand and acknowledge that FG is engaged in other research and development activities directed to prolyl hydroxylase inhibition and/or the stabilization of HIF, and that the focus of this collaboration and the Development Program is directed to the Field. Accordingly, it is understood that, notwithstanding any other provision of this Agreement, the obligations of FG specified herein to make available and disclose to Astellas data, technical information, scientific results and findings and other subject matter is limited in each case to subject matter directed to Lead Compounds within the Field.

5.2 Review of Publications. As soon as is practicable prior to the oral public disclosure, and prior to the submission to any outside person for publication of scientific data resulting from the Development Program, in each case to the extent the contents of the oral disclosure or publication have not been previously disclosed pursuant to this Section 5.2 before such proposed disclosure, FG or Astellas, as the case may be, shall provide to the other party a copy of the publication, or a written summary of any oral disclosure, to be made or submitted, and shall allow the other party at least [ * ], to determine whether such disclosure or publication contains subject matter for which patent protection should be sought prior to publication or which either party believes should be modified to avoid disclosure of Confidential Information or regulatory or other issues. With respect to publications by investigators or other third parties of scientific data resulting from the Development Program, such disclosures and publications shall also be subject to review by the reviewing party under this Section 5.2.

5.2.1 Publication Rights. Subject to the provisions of Articles 7 and 16, after the expiration of [ * ] from the date of receipt of such disclosure or publication, unless the authoring party has received the written notice specified below, the authoring party shall be free to submit such publication or to orally disclose or publish the disclosed research results in any manner consistent with academic standards.

5.2.2 Disapproval of Publication. Prior to the expiration of the [ * ] period specified in Section 5.2.1 above, the reviewing party may notify in writing the submitting party of its determination that such oral presentation or publication contains Confidential Information of the reviewing party or objectionable material or material that consists of patentable subject matter of the reviewing party for which patent protection should be sought. In such event, and unless otherwise mutually agreed, the submitting party shall withhold publication of its disclosure.   -14-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   ARTICLE 6 DEVELOPMENT PROGRAM FUNDING

6.1 Payments for Reimbursement; Net Payments. FG hereby acknowledges receipt of U.S. $[ * ] on February 13, 2004, U.S. $[ * ] on January 28, 2005, and U.S. $[ * ] on March 22, 2005 as initial payments for reimbursement of historical research and development expenditures for the Lead Compounds. Astellas agrees to pay to FG the amounts set forth in Section 6.1.1 below. The parties hereto acknowledge that the Development Program hereunder involves a high degree of risk and uncertainty; accordingly, both parties hereto expressly disclaim any implied warranty as to the results of the Development Program.

6.1.1 Reimbursement Payments. As reimbursement and payment for FG's historical research and development expenditures with respect to pre-clinical and clinical development of Lead Compounds, Astellas agrees to make the following non-refundable, non-creditable (except as set forth in Section 14.3 below) reimbursement payments to FG upon the first occurrence of each event specified below (each, an Event):       EVENT   AMOUNT 1.   Upon [ * ], provided, that U.S. $[ * ] million of such amount shall be paid no later than [ * ] irrespective of whether the [ * ] has occurred.   U.S. $[ * ]

2.  Upon each of [ * ], for a total of U.S. $[ * ]   U.S. $[ * ]

3.   Upon [ * ] or in the event that Astellas chooses to utilize the Bridging Strategy, the payment shall be made concurrent with the payment required in paragraph 4 of this Section 6.1.1 below.   U.S. $[ * ]

4.  Upon the first [ * ].   U.S. $[ * ]

6.1.2 Product Approval Payments. As reimbursement and payment for FG's historical and ongoing research and development expenditures with respect to pre-clinical and clinical development of Lead Compounds and as payment for the successful marketing and sales of Lead Compound(s), Astellas agrees to make the following non-refundable, non-creditable (except as set forth in Section 14.3 below) reimbursement payments to FG upon the first occurrence of each Event (other than paragraph 5 of this Section 6.1.2 below) specified below. Notwithstanding the foregoing, in the event that Astellas decides not to pursue Commercialization in [ * ] set forth in paragraph 3 or 4 of this Section 6.1.2, the milestone payment associated with the [ * ] set forth in paragraph 3   -15-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   shall be due and payable upon the first [ * ] of either [ * ], and the milestone payment associated with the [ * ] set forth in paragraph 4 shall be due and payable upon the second [ * ] for a [ * ]; and in the event Astellas decides to pursue only [ * ] set forth in paragraph 3 or 4 of this Section 6.1.2, and pursues Commercialization of either of the [ * ], the milestone payment for associated with the [ * ] for the [ * ] shall be due and payable upon the first [ * ] for a [ * ]; and in the event that Astellas decides to pursue [ * ] set forth in paragraphs 3 and 4 of this Section 6.1.2 and also does not pursue [ * ], the parties shall a [ * ] for which the milestone payments associated with the [ * ] set forth in paragraph(s) 3 and/or 4 of this Section 6.1.2, as the case may be, shall be due, as negotiated in good faith by the parties hereto.       EVENT   AMOUNT 1.   Upon the first [ * ] for the [ * ]; provided, that in the event Astellas chooses the Bridging Strategy, such payment shall be increased by an additional U.S. $[ * ] for a total of U.S. $[ * ]   U.S. $[ * ]

2.   Upon the first [ * ] in the Astellas Territory for the [ * ]; provided, that in the event Astellas chooses the Bridging Strategy, such payment shall be increased by an additional U.S. $[ * ] for a total of U.S. $[ * ].   U.S. $[ * ]

3.   Upon the first [ * ] in the Astellas Territory for the [ * ]; provided, that in the event Astellas chooses the Bridging Strategy, such payment shall be increased by an additional U.S. $[ * ] for a total of U.S. $[ * ].   U.S. $[ * ]

4.



Upon the first [ * ] in the Astellas Territory for the first indication within [ * ] (see Exhibit B); provided, that in the event Astellas chooses the Bridging Strategy, such payment shall be increased by an additional U.S. $[ * ] for a total of U.S. $[ * ].

U.S. $[ * ]

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[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY

5.   Upon [ * ] in the Astellas Territory for each of up to [ * ] indications listed on Exhibit B, including separate indications within [ * ] up to a total of U.S. $[ * ].   U.S. $[ * ]

6.1.3 Sales Success Payments. As reimbursement and payment for FG's historical and ongoing research and development expenditures with respect to pre-clinical and clinical development of Lead Compounds and as payment for the successful marketing and sales of the Lead Compound(s), Astellas agrees to make the following non-refundable, non-creditable (except as set forth in Section 14.3 below) reimbursement payments to FG upon the first occurrence of the Event specified below.   EVENT   AMOUNT Upon receipt of [ * ] aggregate annual Net Sales achieved for the first time in the Astellas Territory for all indications and Lead Compounds by Astellas and its Affiliates and Sublicensees.   U.S. [ * ]

If at the occurrence of an Event (except for Event 2) as set forth in Section 6.1.1 above with respect to a particular Lead Compound the payment corresponding to the occurrence of any preceding Event (except for Event 2) (i.e., previous as contemplated by the Event number sequence specified above) has not been made, then the corresponding payment(s) for such preceding Event (except for Event 2) shall then be due.

The payments set forth in Sections 6.1.1, 6.1.2 and 6.1.3 hereof shall each be due and payable within [ * ] after occurrence of the corresponding Event. Astellas agrees to promptly notify FG in writing of its achievement of any Event under Sections 6.1.1, 6.1.2 and 6.1.3.

ARTICLE 7 USE OF PRECLINICAL AND CLINICAL DATA

7.1 Exchange. Subject to the provisions of this Article 7 and Article 16 below, the parties shall have access to the underlying preclinical and clinical data (including raw data thereof), analysis, reports, protocols and correspondence (collectively with such filings, Data), at reasonable times, upon fifteen (15) days advance notice or such shorter notice as may be required in order to meet any regulatory requirements and (upon request) in English, (it being understood and agreed that Astellas shall provide in English without cost to FG summaries of all final reports and all documents necessary to comply with regulatory and legal requirements, and   -17-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   shall provide all other documents in English with reasonable costs shared equally between the parties) of the other party in accordance with the following:

(a) FG shall have access to and the right to use for any purpose, any Data developed by or on behalf of Astellas or its Affiliates or Sublicensees in the course of the Development Program with respect to indications within the Field for Lead Compounds. Astellas shall obtain from such Sublicensees access to all Data prepared by or for such Sublicensee with respect to a Lead Compound, with the right to provide such Data and/or access to FG and its Sublicensees, and any sublicense failing to provide such obligation on the part of the Sublicensee shall be voidable at the option of FG.

(b) Astellas shall have access to and the right to use solely for the purpose of this Agreement, any Data developed by or on behalf of FG or its Affiliates or Sublicensees with respect to Lead Compounds in connection with the Field (i) to the extent necessary to support the application to the regulatory authority in the Astellas Territory or to fulfill other Japanese Ministry of Health, Labor and Welfare regulatory requirements, or (ii) if not necessary to support such application or to fulfill such Japanese Ministry of Health, Labor and Welfare regulatory requirements, to the extent FG is permitted subject to FG's third party obligations; provided that FG shall [ * ] negotiate the availability of such Data to Astellas from such Sublicensee, and provided, further, that Astellas agrees not to use or disclose to third parties any such data for purposes outside the Field except as authorized under this Agreement.

7.2 Disclosure. Subject to the provisions of this Section 7.2, FG and Astellas may each provide copies or summaries of Data to its Affiliates and/or its permitted Sublicensees to the extent reasonably necessary for the development and commercialization of Lead Compounds in accordance with this Agreement, or in the case of FG of products other than Lead Compounds. It is understood that the foregoing shall include the right to disclose Data to third parties with whom Astellas or FG are discussing entering into agreements for such permitted purposes, subject to reasonable conditions of confidentiality, provided, that Astellas may not disclose any Data to any third party competitor of FG within the Field worldwide without the prior written consent of FG.

7.3 Regulatory Requirements. Notwithstanding the provisions of Section 7.2, in all agreements with third parties or Affiliates involving the development of Data, FG and Astellas, respectively, shall require that such third parties and Affiliates provide the other party with all such Data, to the extent such Data is required in order for each party to meet its obligations to the other party under Section 4.4.2 above.

7.4 Review of Protocols. Astellas agrees that all final protocol summaries for all clinical trials and GLP toxicology studies to be conducted by or under authority of Astellas will be subject to the review and approval of the JDC, in accordance with the following procedures set forth in this Section 7.4. Astellas shall submit to FG and the JDC the original draft protocol summary in English for any clinical trial or GLP toxicology study it proposes to conduct, and such protocol summary shall be reviewed and approved by the JDC. The protocol summary shall contain all information as may be requested by the JDC. Upon Astellas' completion of the final protocol for the proposed clinical trial or GLP toxicology study, in the   -18-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   event that such protocol deviates from the original protocol summary, Astellas shall resubmit to FG and the JDC for review and approval a revised, final protocol summary that indicates all changes from the original protocol summary. Notwithstanding the foregoing, FG reserves the right to request and Astellas shall provide any portion of full text of the protocols in English for review by the JDC, which portion is at issue. In the event FG requests such a full text protocol, it shall review and provide comments to the JDC as soon as practicable, and within five (5) business days of receipt.

ARTICLE 8 MARKETING RIGHTS

8.1 Astellas. Astellas shall have the exclusive right to market, sell and distribute the Lead Compounds supplied by FG for use in the Astellas Territory within the Field under the license granted in Article 13. Astellas may exercise its rights under this Section 8.1 through one or more Sublicensees; provided, that any such Sublicensee agrees to terms identical in all material respects to those contained in this Agreement, and, provided, further, that any arrangement between Astellas and an Astellas Sublicensee with respect to a Lead Compound shall be subject to the requirements of Section 13.2.

8.2 FibroGen. FG shall have the exclusive right, including the right to authorize others, to market, sell and distribute the Lead Compounds for any use in the FG Territory. Subject to the restrictions contained in Section 8.3.4 hereof, FG retains the exclusive right, including the right to authorize others, to market, sell and distribute worldwide the Lead Compounds for use outside the Field.

8.3 Covenants

8.3.1 General. It is understood that, with respect to any particular Lead Compound, whether or not the use and sale of such Lead Compound by FG and/or Astellas in any country requires a license under intellectual property rights of the other, neither FG nor Astellas shall market, sell or distribute a Lead Compound anywhere in the world except in accordance with this Agreement, including this Article 8.

8.3.2 Independent Activities by Astellas. During the term of this Agreement, in the event Astellas seeks to Commercialize any molecules for the Field or the Expanded Field, except for actions taken within the Field in the course of the exercise of the license granted under Section 13.1 hereof and expressly authorized under this Agreement, Astellas shall notify FG immediately upon the commencement of any such activities, and provided that [ * ] such activities are and will be in the future conducted completely independently of any of FG Technology and/or any other FG materials, confidential information, intellectual property or other related information provided by or on behalf of FG to Astellas under this Agreement or any other agreement between FG and Astellas relating to the subject matter hereof, Astellas may proceed with such Commercialization, subject at all times to the obligations contained in this Agreement with respect to any intellectual property in connection with or related to such activities and FG's right to terminate this Agreement pursuant to Section 18.2.1 hereof.   -19-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   8.3.3 Use of FG Technology by Astellas. Astellas shall use the FG Technology only to exercise the rights granted under Section 13.1 of this Agreement and as expressly authorized under the Development Program, and shall not under any circumstances use or apply any FG Technology, including without limitation any FG know-how and/or any other FG materials, confidential information, intellectual property or other related information provided by FG to Astellas under this Agreement or any other agreement between FG and Astellas relating to the subject matter hereof, for any use outside the Field at any time or within the Field after the expiration or termination of this Agreement.

8.3.4 Activities Outside Field by Astellas. Without limiting the foregoing, Astellas agrees that during the term of this Agreement it will not (and will not authorize any third party, including, without limitation, any Affiliates or Sublicensees, to) (i) Commercialize any Lead Compound within the Field in the Astellas Territory, except a Lead Compound that has been designated a Lead Compound by the JDC and that has received Marketing Approval in the Astellas Territory for use in the Field, (ii) Commercialize any Lead Compound for use outside the Field or outside the Astellas Territory, (iii) provide any supplies of any Lead Compound to any third party, including, without limitation, any Affiliates or Sublicensees, which Astellas knows or has reason to know is being marketed, sold or distributed for use outside the Field or outside the Astellas Territory, (iv) conduct or sponsor, or provide any supplies of any Lead Compound for use in, any clinical trial designed to demonstrate that a Lead Compound can be used outside the Field, or (v) seek regulatory approval of, or use labeling for a Lead Compound stating that such Lead Compound is for use outside the Field.

8.3.5 Activities in Astellas Territory by FG During the term of this Agreement, FG shall not Commercialize by itself or through its Sublicensee any Lead Compound or other compound, whether or not designated as a Lead Compound, within the Field in the Astellas Territory, or any Lead Compound outside the Field in the Astellas Territory, provided, however, that FG may develop a Lead Compound or other compound in the Astellas Territory in those Indications for which Astellas has determined not to pursue Commercialization or for which Astellas has lost the right to pursue Commercialization due to failure to meet diligence obligations hereunder; and provided, further, that FG may Commercialize compounds other than Lead Compounds outside the Field in the Astellas Territory, irrespective of whether such compound has the effect of stabilizing HIF causing the stimulation of erythropoiesis (including an increase in endogenous erythropoietin production) and/or a subsequent increase in hematocrit through modulation of prolyl hydroxylase and/or asparaginyl hydroxylase.

ARTICLE 9 TRANSFER PRICING

9.1 Transfer for Non-Commercial Purpose. In exchange for the transfer of any Lead Compound to Astellas for a non-commercial purpose, Astellas shall pay FG the total amount of the Fully Burdened Costs for such Lead Compound as reasonably determined by FG. Lead Compound transferred to Astellas for a non-commercial purpose shall not be used for a commercial purpose.   -20-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   9.2 Transfer for Commercial Purpose. For any Lead Compound transferred to Astellas to be used for any commercial purpose, in exchange for the transfer of such Lead Compound to Astellas, Astellas shall pay FG the amounts set forth in this Section 9.2. All transfers of Lead Compound for use following Marketing Approval shall be deemed transfers for a commercial purpose, except transfers under Section 9.2(c), and transfers for the purpose of conducting clinical trials, which shall be considered transfers for a non-commercial purpose.

(a) For any quantities of Lead Compound shipped by FG to Astellas prior to the issuance of the national health insurance price as determined by the Japanese Ministry of Health, Labour and Welfare (the Listed Price), Astellas shall pay for such quantities at a price equal to [ * ] of the estimate of the Listed Price as determined in good faith by FG and Astellas, subject to adjustment upon the issuance of the actual Listed Price. Upon the issuance of such Listed Price by the Japanese Ministry of Health, Labour and Welfare, Astellas shall pay to FG, or FG shall reimburse Astellas, as the case may be, the amount of any difference between the payment made for such Lead Compound at the estimated Listed Price and the payment required based upon the actual Listed Price.

(b) For all other transfers of Lead Compound, except as set forth in subparagraphs (c) or (d) below, Astellas shall pay for such quantities at a price equal to [ * ] of the Listed Price. In the event that a new Listed Price has been notified to Astellas by the Japanese Ministry of Health, Labour and Welfare before implementation of the new Listed Price, then such new Listed Price shall be used for calculation of the price of Lead Compound to be shipped on and after the later to occur of (i) [ * ] before implementation of the new Listed Price, and (ii) the date upon which Astellas has amended the price of Lead Compound to wholesalers in response to such notification by the Japanese Ministry of Health, Labour and Welfare, even before implementation of the new Listed Price.

(c) With respect to Lead Compound to be distributed as samples to medical providers and for which Astellas shall not receive any payment or other consideration, Astellas shall pay to FG the sum of its Fully Burdened Costs for amounts of Lead Compound shipped to Astellas; provided, however, that the parties shall mutually agree upon the amount of such samples for distribution without consideration in the Astellas Territory.

(d) Upon the later of (i) the initial retail sale of a generic equivalent (as defined by the Japanese Ministry of Health, Labour and Welfare) of such Lead Compound in the Territory, and (ii) and the expiration of the last to expire of the FG Patents with respect to such Lead Compound effectively precluding third parties from selling said generic equivalent, for any quantities shipped by FG to Astellas, Astellas shall pay FG for such quantities [ * ] of the Sales Price; provided, however, that in the event that the payment of the [ * ] of the Sales Price would result in FG's [ * ] Percentage falling below [ * ], FG shall have the option to initiate a renegotiation of the transfer price upon notice to Astellas, in which case the parties shall use best efforts in good faith to renegotiate reasonable terms for the transfer price; provided, further, that in the event the transfer price is not renegotiated to FG's satisfaction or FG elects not to initiate a renegotiation, FG may elect to terminate its manufacturing obligations by written notice to Astellas, and FG and Astellas shall negotiate reasonable terms for transfer of manufacturing. During such period of renegotiation, FG shall transfer the Lead Compound to Astellas at a price   -21-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   equal to the greater of [ * ] of the Sales Price and the price resulting if FG's [ * ] Percentage for such Lead Compound is equal to [ * ].

9.3 Payment. Any payments to be made with respect to the transfer of any Lead Compound in accordance with Section 9.1 or 9.2 above shall be immediately due to FG upon shipment, which shall be paid by Astellas to FG no later than [ * ] of the date of invoice, which invoice FG shall deliver to Astellas upon Delivery of Lead Compound to Astellas pursuant to Section 9.2(a), (b) or (c), and shall be made in U.S. dollars. For transfer of any Lead Compound in accordance with Section 9.1 or 9.2(c) above, FG shall deliver to Astellas, within ten (10) days of receipt of a firm commitment order from Astellas, an invoice for the estimated Fully Burdened Costs of the Lead Compound to be transferred to Astellas. Within [ * ] after the transfer of the Lead Compound to Astellas, FG shall provide a revised final invoice to Astellas that shall indicate the actual Fully Burdened Costs of the Lead Compound. If the actual Fully Burdened Costs are less than the estimated Fully Burdened Costs, FG shall include a reimbursement payment to Astellas for the difference between the initial estimated Fully Burdened Costs and the actual Fully Burdened Costs. If the actual Fully Burdened Costs are greater than the estimated Fully Burdened Costs, Astellas shall pay such difference within [ * ] of receipt of an invoice from FG for such amounts. For payments for the transfer of Lead Compound under Section 9.2(d) hereof, FG's invoice to Astellas shall be calculated based on the current Listed Price as set by the Japanese Ministry of Health, Labour and Welfare. Upon calculation of the Sales Price, Astellas shall submit, for any amounts actually sold, the Sales Price to FG, and FG shall credit Astellas for the difference between the invoice cost, cost calculated based on the Listed Price and the cost calculated based on the Sales Price.

9.4 Reference Materials; Standard Materials. In exchange for the transfer by FG of any Reference Materials or Standard Materials for the purposes of conducting analytical, release, stability and other studies authorized under the Development Program, Astellas shall pay to FG, FG's Fully Burdened Costs of such materials as reasonably determined by FG.

ARTICLE 10 ADDITIONAL PAYMENTS; BOOKS AND RECORDS

10.1 Quarterly Reports. Astellas shall make quarterly reports to FG within sixty (60) days after the end of each calendar quarter (April 1 though June 30, July 1 through September 30, October 1 though December 31, January 1 through March 31), which reports shall include, (a) the Net Sales, unit shipments and other distributions, including samples, by Astellas, and its Affiliates and Sublicensees, in such calendar quarter and (b) such other information as may be reasonably requested by FG to ensure either proper payment by Astellas of amounts required under this Agreement or to calculate payments with respect to FG's Third Party Agreements. Concurrently with making such report, Astellas shall remit payment to FG for any payments due under this Agreement.

10.2 Payment Method. All payments under this Agreement shall be made by bank wire transfer in immediately available funds to an account designated by the payee. All   -22-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   such payments made by or on behalf of Astellas hereunder shall be made by a Japanese entity. All dollar amounts specified in this Agreement, and, except as specifically authorized under Section 10.3 hereof, all payments made hereunder, are and shall be made in U.S. dollars. Any payments due under this Agreement which are not paid by the date such payments are due under this Agreement shall bear interest to the extent permitted by applicable law at the U.S. prime rate per annum quoted in the Money Rates column of The Wall Street Journal (U.S., Western Edition) on the first business day after such payment is due, plus an additional [ * ], calculated on the number of days such payment is delinquent. This Section 10.2 shall in no way limit any other remedies available to either party.

10.3 Currency Conversion. In the event that the amount of an Astellas payment obligation in U.S. dollars must be determined by the calculation of an underlying amount received by Astellas in Japanese Yen utilizing the U.S. dollar-Japanese Yen exchange rate (i.e., a transfer payment under Section 9.2(a), (b) or (d) hereof), currency conversion from Japanese Yen to U.S. dollars shall be made using the closing exchange rate reported in the Wall Street Journal (U.S. Western Edition) for the date on which the Lead Compound is Delivered to Astellas. If any such payment is not made by the due date, the exchange rate utilized for determination of such payment obligation shall be the exchange rate [ * ] reported in the Wall Street Journal (U.S. Western Edition) during the period from the date of invoice through the due date, not including any additional amounts owed under Section 10.2 hereof.

10.4 Taxes

10.4.1 Generally. Each party shall bear and, except as otherwise expressly provided in this Section 10.4, pay any and all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated, imposed on that party as a result of the existence or operation of this Agreement. If laws or regulations require that taxes be withheld, the paying party will (i) timely pay the taxes to the proper taxing authority, and (ii) send proof of payment to the other party within [ * ] following that payment.

10.4.2 Certain Payments. Notwithstanding Section 10.4.1, all payments by Astellas required under this Agreement above, including under Section 6.1.1 are expressed as net amounts and shall be made free and clear of, and without reduction for, any withholding taxes, provided, however, that in the event that any withholding taxes are due on the payments Astellas shall make to FG under Sections 6.1.2 and 6.1.3, Astellas shall make such payments directly to the Japanese Tax Authority and shall be entitled to reduce the amount paid to FG by [ * ] of the amount of the withholding taxes paid to Japanese Tax Authority in respect of such payment, unless the amount of such withholding taxes is reduced by a decision of the Japanese tax authority, or is subsequently adjusted downward as result of appeal, in which event the next payment due hereunder, including, without limitation, a transfer payment or a payment upon termination, shall be increased by such amount. Any such taxes which are otherwise imposed on payments to FG shall be the sole responsibility of Astellas. Astellas shall provide FG with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by FG to establish that such taxes have been paid. Astellas and FG shall cooperate to minimize the withholding taxes due on the amounts payable by Astellas to FG hereunder to the extent permissible under law, including, but not limited to,   -23-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   making appropriate application(s) to the tax authorities within the Astellas Territory. If possible, FG shall use its reasonable efforts to apply for the tax refund from U.S. tax authorities for the withholding taxes paid to the Japanese Tax Authority on the payment U.S. $[ * ] payment made by Astellas to FG on January 13, 2004 as set forth in Section 6.1 when such application for the tax refund becomes possible, and if FG has received any such tax refund, FG shall reimburse to Astellas for the amounts corresponding to the withholding taxes paid in Astellas' accounts as set forth above.

10.5 Records; Inspections. Astellas shall keep, and require its Affiliates and Sublicensees to keep, complete, true and accurate books of accounts and records for the purpose of determining payments due pursuant to this Agreement. Such books and records shall be kept for at least [ * ] following the end of the calendar quarter to which they pertain. FG shall keep, and require its Sublicensee(s) to keep, complete, true and accurate books of accounts and records for the purpose of verifying the accuracy of the [ * ] Percentage and Fully Burdened Costs. Such records will be open for inspection at the principal place of business of each party (the Inspected Party) during such [ * ] period by an independent auditor chosen by the other party (the Inspecting Party) and reasonably acceptable to the Inspected Party for the purpose of verifying the amounts payable by Astellas to FG hereunder or the accuracy of the [ * ] Percentage and/or Fully Burdened Costs. Such inspections may be made no more than once each calendar year, at reasonable times and on reasonable notice. Any books of accounts or records shall not be inspected more than once. The independent auditor retained by the Inspecting Party shall be obligated to execute a reasonable confidentiality agreement with the Inspected Party prior to commencing any such inspection, which, among other customary clauses, contains the provisions to the effect that such auditor shall not disclose to the Inspecting Party any information other than as necessary to accomplish the purpose of the inspection. Inspections conducted under this Section 10.5 shall be at the expense of the Inspecting Party. Any underpaid or overcharged amounts that are discovered will be paid by the Inspected Party, and with interest on such underpaid or overcharged amounts at the rate set forth in Section 10.2 above. The parties will endeavor to minimize disruption of the Inspected Party's normal business activities to the extent reasonably practicable.

ARTICLE 11 DUE DILIGENCE

11.1 Astellas' Due Diligence. Astellas shall use its commercially reasonable efforts (i) to conduct any development work undertaken under the Development Program, and any and all clinical trials (including without limitation Phase III) required to obtain, and thereafter to take such other actions as are necessary to obtain, Marketing Approvals for any Lead Compound in the Astellas Territory as soon as practicable, and (ii) to launch each such Lead Compound in the Astellas Territory as soon as practicable after receiving Marketing Approval in the Astellas Territory for such Lead Compound.

11.2 FG's Due Diligence. FG shall use its commercially reasonable efforts to conduct, and to the extent possible taking into account safety and other applicable issues, complete a Phase II clinical trial with FG-2216 or another Lead Compound in the FG Territory.   -24-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   11.3 Development Diligence

11.3.1 Astellas shall pursue development of Indications according to the following terms: (i) Astellas shall pursue Commercialization in Treatment of anemia in patients with chronic kidney disease undergoing dialysis and Treatment of anemia in patients with chronic kidney disease not undergoing dialysis; (ii) Astellas shall notify FG within six (6) months of the execution of this Agreement whether it shall pursue Commercialization in [ * ]; (iii) Astellas shall notify FG within six (6) months of the date FG notifies Astellas that it has demonstrated Proof of Concept whether it will pursue Commercialization in [ * ]; (iv) Astellas shall notify FG within six (6) months of the date FG notifies Astellas that it has demonstrated Proof of Concept whether it will pursue Commercialization in [ * ]; and (v) Astellas shall notify FG, upon Marketing Approval for any Lead Compound in each of the following Indications, whether it will pursue Commercialization of such Indication: [ * ], and any other indications to be added hereafter to the definition of the Indication by mutual agreement; and (vi) if FG is pursuing Commercialization of [ * ], Astellas shall notify FG after Marketing Approval whether it shall pursue Commercialization of such Indication. Should Astellas inform FG that it does not wish to pursue Commercialization of any Indication, or should Astellas fail to meet the due diligence obligations under Section 11.3.2 for any Indication as set forth in Section 11.3.1(iv) or under Section 11.3.3 for any Indication as set forth in Section 11.3.1(v), such Indication shall no longer be considered an Indication for the purposes of this Agreement, and Astellas shall have no right or shall lose any right with respect to such Indication under this Agreement including, without limitation, the licenses granted under Sections 8.1 and 13.1 hereof. Each Indication for which Astellas is obligated to pursue Commercialization under Section 11.3.1(i) or for which it decides to pursue Commercialization under Sections 11.3.1(ii), (iii) or (iv) shall be a Major Indication.

11.3.2 In addition to the obligations set forth in Section 11.1 and 11.3, for each Major Indication, until such time as Astellas obtains Marketing Approval in the Astellas Territory for such Major Indication, with respect to each Lead Compound for each Major Indication, Astellas shall:

(a) If required for development of a Lead Compound in an Indication, Initiate Phase I clinical trials within [ * ] after the later of (i) the Effective Date, for Indications for which FG has commenced clinical trials prior to the execution of this Agreement, and (ii) FG's or its Sublicensees Initiation of a Phase I clinical trial for other such Indications.   -25-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   (b) Initiate Phase II clinical trials within the later of (i) [ * ] after FG's, or its Sublicensee's, Initiation of Phase II, (ii) [ * ] after Astellas' Completion of its Phase I clinical trial(s), (iii) if Astellas' obligations under this Subsection 11.3.2(b) are triggered upon FG's notification of demonstration of Proof of Concept in an Indication, [ * ] after the date Astellas notifies FG that it will pursue Commercialization in such Indication, and (iv) in the event Astellas' obligations under this Section 11.3.2(b) are triggered by the designation of a secondary Lead Compound as a primary Lead Compound, [ * ] after such designation.

(c) Either notify FG of its intent to employ the Bridging Strategy, if applicable, or Initiate Phase III clinical trials within [ * ] of the later of (i) FG's, or its Sublicensee's Initiation of a Phase III clinical trial and (ii) Astellas' Completion of its Phase II clinical trial(s).

11.3.3 For each of the Indications set forth in Section 11.3.1(v), Astellas shall Initiate Phase II clinical studies within [ * ] of its notification to FG that it will pursue Commercialization in such Indication.

11.3.4 Astellas' diligence obligations set forth in Section 11.3.2 shall apply to all Lead Compounds designated by FG, provided, that for each Indication for which such diligence obligations apply, the diligence obligations shall only apply to the primary Lead Compound designated by FG, and for the secondary Lead Compound, Astellas' diligence obligations shall be limited to those set forth in Section 11.3.2(a) until the designation of the secondary Lead Compound as the primary Lead Compound, provided, further, upon such designation, that such diligence obligation shall be expanded to include the requirement that Astellas complete the Phase I clinical studies required to Initiate Phase II clinical studies in the Indication with such secondary Lead Compound.

ARTICLE 12 MANUFACTURING RIGHTS

12.1 Procedures. FG shall have the exclusive right to determine the methods and procedures for the manufacture of all Lead Compounds. If FG intends to make any change in the methods or procedures, including, without limitation, manufacturing process, analyzing process and/or site change for manufacture of the Lead Compounds, FG shall notify Astellas in writing of such intended change; provided, that if in Astellas' reasonable opinion, such change may lead to any amendment to the relevant Marketing Approval or Marketing Approval Application, Astellas shall use best efforts to (i) as soon as possible petition the Japanese Ministry of Health, Labor and Welfare to make the change without an amendment to the Marketing Approval or MAA and shall concurrently prepare an application for amendment to the Marketing Approval or MAA, and (ii) if the Japanese Ministry of Health, Labor and Welfare determines such an amendment is required, shall notify FG and submit the application for amendment immediately following notice of such requirement, and FG shall not make the intended change without a prior written consent from Astellas, such consent not to be unreasonably withheld or delayed, provided, further, that consent shall be deemed granted upon notice that an amendment is not required or approval of an amendment from the Japanese   -26-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   Ministry of Health, Labor and Welfare. FG shall provide Astellas with all the data and information necessary for Astellas to amend the Marketing Approval or MAA in Astellas Territory and shall continue to supply Astellas with the Lead Compound as manufactured with the manufacturing methods and procedures or at the manufacturing site described in Astellas' (or its Affiliate's or Sublicensee's) then current Marketing Approval or MAA until Astellas will have finished the necessary amendment to the relevant Marketing Approval or MAA or received notice that an amendment is not required.

12.2 FG Right. FG shall have the worldwide exclusive right (itself or through third party vendors) to manufacture (or have manufactured) Lead Compounds. Astellas and its Affiliates and Sublicensees shall not directly or indirectly make, produce or manufacture any Lead Compounds.

12.3 Manufacture and Supply. FG shall have the exclusive right and obligation to supply the Lead Compounds to Astellas and its Affiliates and Sublicensees for all development and commercial purposes, and Astellas and its Affiliates and Sublicensees shall purchase such Lead Compounds exclusively from FG. It is understood that FG may engage subcontractors with respect to the manufacture of such Lead Compounds to fulfill its supply obligations to Astellas hereunder. In all cases, supply by FG of Lead Compounds hereunder shall be Ex Works (Incoterms 2000) the manufacturing facility. Subject to Section 8.3.5 hereof, nothing herein is intended to preclude FG from granting rights to supply or supplying (a) any Lead Compound outside of the Astellas Territory to any third party for use within or outside the Field, or (b) any compound Controlled by FG within the Astellas Territory except for a Lead Compound for the duration of its designation in compliance with the terms and conditions of this Agreement.

12.4 Product Specifications. The Lead Compounds to be supplied by FG hereunder shall meet the Product Specifications. In addition to, but not in limitation of, the foregoing, FG and Astellas agree that upon Marketing Approval for any Lead Compound, FG's obligation to supply Astellas with Lead Compound shall be limited to, and all payment obligations set forth in Section 9.2 shall be based on, the supply of Bulk Product, unless otherwise agreed by the parties. The packaging for the Lead Compound to be distributed commercially by Astellas shall contain a clearly visible acknowledgment that the Lead Compound was manufactured by FG, and shall contain a registered trademark of the FG logo or other trademark approved by FG.

12.5 Orders Forecast

12.5.1 Orders for Non-Commercial Use. In connection with the supply of any Lead Compound for non-commercial use in the Territory, Astellas shall provide FG with a firm purchase order as early as possible prior to its requirements, and in no event less than [ * ] prior to the shipment or other release date(s) requested by Astellas for such Lead Compound. FG shall provide such Lead Compound to Astellas as soon as practicable within such time period, subject, prior to Marketing Approval, to the reasonable lead time requirements of third party contract manufacturers. All forecasts shall be prepared in good faith in order to facilitate FG's manufacture and shipment of the Lead Compound in compliance with this Agreement.   -27-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   12.5.2 Forecast and Order for Commercial Use. In connection with the supply of any Lead Compound for commercial use in the Astellas Territory upon FG's request, Astellas and FG shall negotiate in good faith appropriate forecasting and firm purchase order lead times, taking into consideration the reasonable notice requirements of FG and its third party manufacturers. All forecasts shall be prepared in good faith in order to facilitate FG's manufacture and shipment of the Lead Compound in compliance with this Agreement.

12.6 Shipment. Astellas, or FG at Astellas' request if specified in a purchase order by Astellas, shall arrange for shipment of the Lead Compound as specified in each purchase order by Astellas, Ex Works (Incoterms 2000) the manufacturing facility. For purposes of this Agreement, and notwithstanding anything to the contrary contained within the term Ex Works, it is hereby acknowledged and agreed that title and risk of loss shall transfer to Astellas from receipt by Astellas at the manufacturing facility. Astellas shall bear the costs of such carrier, including the costs of insurance of the shipment, and all customs, duties, sales taxes and other governmental charges related to the importation and sales of the Lead Compound.

12.7 Inspection of Shipment/Right to Reject. Each shipment of Lead Compound from FG to Astellas shall contain such laboratory and quality control certificate as are necessary to show that the Lead Compound is in conformity with the Product Specifications. Astellas shall promptly inspect each shipment. In the event that any portion of the shipment fails to conform to the Product Specifications, Astellas shall notify FG within [ * ] of Astellas' receipt of such shipment. Such notice shall specify the manner in which the Lead Compound fails to meet the Product Specifications. In the absence of such notification, Astellas shall be deemed to have accepted the shipment. FG and Astellas agree to consult with each other to resolve any discrepancy between each other's determinations regarding any possible nonconformity of the Lead Compound. If such consultation does not resolve the discrepancy, the parties agree to nominate a reputable independent laboratory or other independent third party, in each case acceptable to both parties, to carry out tests on representative samples taken from such shipment, and the results of such tests shall be binding on both parties. If the results of such tests demonstrate that the Lead Compound does not meet the Product Specifications, then FG shall pay the costs of such tests; otherwise, Astellas shall pay for the costs of such tests. FG shall, at its expense, promptly replace any Lead Compound to the extent that, in accordance with this Section 12.7, it is determined that it does not conform to the Product Specifications. Unless otherwise instructed by FG, all non-conforming Lead Compound shall be returned to FG at the place of manufacture at FG's direction and at FG's expense. If Astellas detects at any time any defect in the Lead Compound which has not been found through Astellas' inspection, it shall notify FG to that effect within [ * ] of the discovery of such defect, and the procedures set forth above in this Section 12.7 shall be applied to such defective Lead Compound, provided, that FG shall only be responsible to pay for costs of defects that are the result of FG's gross negligence or willful misconduct.

12.8 Inspection of Facilities. Astellas shall have the right, upon reasonable advance notice and during regular business hours, to inspect and audit, either by itself or through its Affiliates or consultants, the facilities (including any facilities of sub-contractors) being used by FG for production of the Lead Compound to assure compliance with applicable laws, rules and regulations, including, without limitation, Japanese regulatory standards and FG quality control procedures (Relevant Standards). FG shall also reasonably comply with inspection   -28-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   requests of the Japanese Ministry of Health, Labor & Welfare. Such inspection and audit shall be conducted at Astellas' sole cost and expense in a manner so as to minimize disruption of FG's, or its subcontractor's or Sublicensee's, business operations. FG shall, within [ * ] after FG's receipt of written notice from Astellas detailing any deficiencies which may be noted in any such audit which relate to the Relevant Standards use good faith efforts to remedy such deficiencies, and submit a plan to the Astellas outlining steps proposed to be taken.

12.9 Recall. In the event that Astellas deems it necessary to recall any Lead Compound from the market, it may do so in its sole discretion, after notification to the FG. The costs and expenses for such recall shall be borne by Astellas unless caused by a failure for which FG is required to indemnify Astellas pursuant to Section 17.3, or by FG's gross negligence or willful misconduct, in which event it shall be borne by FG.

12.10 Warranty. FG represents and warrants that the Lead Compounds to be supplied to Astellas under this Agreement shall conform to the Product Specifications and shall, as appropriate, be manufactured in compliance with GMP Guidelines. Subject to Sections 12.9 and 17.3 hereof, FG's sole obligation and Astellas' sole remedy with respect to Lead Compound which does not meet the warranty contained herein is limited to replacement of such Lead Compound and reimbursement of Astellas' out of pocket expenses for shipping to FG at the address designated by FG.

12.11 Interruption in Supply. For any particular Lead Compound, in order to minimize any interruptions in supply hereunder, FG and Astellas agree that within [ * ], FG shall maintain two separate, validated manufacturing sites (which may either be its own manufacturing facilities or facilities of a contract manufacturer) for such Lead Compound.

12.12 Reference and Standard Materials. For any Lead Compound provided to Astellas hereunder, upon Astellas' request and pursuant to Section 9.4 hereof, FG shall provide to Astellas reasonable quantities of reference materials, including analogs, metabolites, impurities, degradates and radio-labeled compounds (Reference Materials) and standard materials, i.e. defined, highly purified Lead Compound (Standard Materials) for such Lead Compound for the purposes of conducting analytical, release, stability and other studies as may be authorized by the JDC under the Development Program.

ARTICLE 13 LICENSE GRANTS

13.1 Grant to Astellas. Subject to the terms and conditions of this Agreement including Article 12 above, FG hereby grants to Astellas an exclusive license under the FG Technology to: use, package, sell, have sold, import, market and otherwise distribute the Lead Compounds for use solely in the Field in the Astellas Territory

13.2 Sublicenses. The licenses granted under Section 13.1 above include the right to grant and authorize sublicenses, subject to the requirements of this Agreement and Section 7.2. Notwithstanding the foregoing, Astellas shall not have the right to authorize a Sublicensee to market, sell or distribute Lead Compounds without FG's prior written consent   -29-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   (which consent shall not be unreasonably withheld). For the purposes of the foregoing, and without limitation, it shall be deemed reasonable for FG to withhold consent for competitive concerns.

13.3 No Rights Beyond Lead Compounds. Except as expressly provided herein, nothing in this Agreement shall be deemed to grant to Astellas rights in FG Technology other than the rights granted hereunder to the Lead Compounds, or for applications outside the Field or outside the Astellas Territory, or to manufacture Lead Compounds; nor shall any provision of this Agreement be deemed to restrict FG's right to exploit any FG Technology and/or the Lead Compounds outside the Astellas Territory.

13.4 Expanded Field Negotiation. Following the signing of this Agreement, FG agrees to negotiate in good faith with Astellas for a license to develop compounds for the Expanded Field in the Astellas Territory, exclusively for a period of [ * ] following such date, and non- exclusively thereafter until the execution of a license agreement with a third party to develop compounds for the Expanded Field. FG and Astellas hereby agree that FG's obligation to negotiate non-exclusively for the Expanded Field shall not constitute a right of first offer, right of first refusal, right of first negotiation or any obligation to enter into any agreement with Astellas at any time, and the failure of such negotiations to result in an agreement between FG and Astellas with respect to the Expanded Field shall not constitute a breach of this Agreement.

ARTICLE 14 INTELLECTUAL PROPERTY

14.1 Ownership of Inventions. Subject to Section 14.1.1, title to all inventions and other intellectual property made related to (i) the Development Program, (ii) the Lead Compounds, (iii) FG Technology or FG Confidential Information, (iv) the Field, or (v) the Expanded Field (subsections 14.1(i)-(v), collectively, the Protected Field) shall be owned by or is hereby assigned to FG; provided, however that Astellas shall own inventions of general applicability relating solely to drug delivery systems created exclusively by Astellas under subsection 14.1(i), excluding inventions related to or based on subsections 14.1(ii), (iii), (iv), or (v), and provided, further, that Astellas hereby grants to FG a worldwide, fully paid non-exclusive license with the right to sublicense to practice such inventions with respect to the FG Technology. Astellas agrees to execute any and all assignments and other documents necessary to effectuate the foregoing.

14.1.1 Notwithstanding Section 14.1, in the event that Astellas develops, completely independently from any FG Technology and/or any other FG materials, confidential information, intellectual property or other related information provided by or on behalf of FG to Astellas under this Agreement or any other agreement between FG and Astellas relating to the subject matter hereof, any inventions or intellectual property rights related to the Field or the Expanded Field, [ * ], Astellas shall own such intellectual property and hereby grants to FG and its Sublicensees a non-exclusive, royalty-free, irrevocable license to such intellectual property for the FG Territory. Astellas agrees to execute any and all assignments and other documents necessary to effectuate the foregoing.   -30-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   14.2 Patent Prosecution

14.2.1 FG Inventions. FG shall control all Prosecution and Interference Activities pertaining to FG Patents and patent applications and patents related to its, its Affiliate's or its Sublicensee's inventions in the Protected Field worldwide using counsel of its choice and shall bear the costs of such Prosecution and Interference Activities, provided, however, that; and Astellas shall reimburse to FG, within [ * ] of receipt by Astellas of invoice therefor, any such costs to the extent incurred in connection with or reasonably allocable to the FG Patents registered and/or to be registered in the Astellas Territory and related to the Field and the Lead Compounds, provided, further, that, with respect to patents or patent applications excluding those covering composition of matter claims and all patents listed on Exhibit A hereto as of the Effective Date, Astellas may postpone such reimbursement until the respective FG Patent will have been registered in the Astellas Territory if [ * ], on condition that once the respective FG Patent has been registered in the Astellas Territory, Astellas shall pay to FG such costs, plus interest to the extent permitted by applicable law at the U.S. prime rate per annum quoted in the Money Rates column of The Wall Street Journal (U.S., Western Edition), calculated in each case from the date such costs were incurred, plus an additional [ * ] thereof.

14.2.2 Astellas Inventions. Astellas shall not file for or otherwise seek to obtain (directly or indirectly) patent or other intellectual property protection for inventions that are related to the Protected Field, without the prior written consent of FG, which may be withheld at FG's sole discretion, subject to Section 14.1.1, and provided also that Astellas may file for or otherwise seek to obtain patent protection for inventions related to drug delivery systems as described in Section 14.1. To the extent that FG consents to the filing of any patent application or other intellectual property protection related to the foregoing, such patent application or other intellectual property protection shall be subject to Section 14.1, unless otherwise agreed in writing.

14.2.3 Cooperation. Astellas shall cooperate with and assist FG in connection with Prosecution and Interference Activities and shall use best efforts to consult with FG regarding the prosecution and maintenance of the FG Patents for the FG Territory and the Astellas Territory for those FG Patents for which Astellas or its Affiliates, Sublicensees or investigators are inventors, except solely for inventions (i) of general applicability relating solely to drug delivery systems created by Astellas under subsection 14.1(i), or (ii) created in compliance with Section 14.1.1 as determined solely by FG in good faith.

14.3 Defense of Third Party Infringement Claims. If the development, manufacture, sale or use of any Lead Compound pursuant to this Agreement results in a claim, suit or proceeding (collectively, Actions) alleging patent infringement against FG or Astellas (or their respective Affiliates or Sublicensees), such party shall promptly notify the other party hereto in writing. The party subject to such Action (for purposes of this Section 14.3, the Controlling Party) shall have the exclusive right to defend and control the defense of any such Action using counsel of its own choice; provided, however, that if such Action is directed to the subject matter of a patent of the other party (i.e., for Astellas, a FG Patent), such other party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice.   -31-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   Except as agreed in writing by Astellas and FG, Astellas shall not enter into any settlement relating to a Lead Compound, if such settlement admits the invalidity or unenforceability, or limits any claim, of any patent within the FG Technology. The Controlling Party agrees to keep the other party hereto reasonably informed of all material developments in connection with any such Action. Any cost, liability or expense associated with such action (including amounts paid in settlement) (together, Expenses) shall be borne by the Controlling Party; provided, that if Astellas is the Controlling Party, and the Action is related to Future Third Party Intellectual Property, with respect to Expenses related solely to such Future Third Party Intellectual Property, it shall be entitled to deduct up to [ * ] of the Expenses incurred on an annual basis from [ * ] in such year under this Agreement, provided, however, that (i) the total amount deducted shall not exceed [ * ] thereunder, and (ii) notwithstanding (i) above, Astellas' right to deduct Expenses incurred shall be further limited such that in no event shall the sum of (a) the Expenses deducted by Astellas under this Section 14.3, and (b) the consideration FG contributes for the acquisition of intellectual property from Third Party Licensors for the Astellas Territory as set forth in Section 14.5, exceed [ * ] hereunder, and, provided further, that if FG is the Controlling Party, it shall be entitled to reimbursement by Astellas of [ * ] of such Expenses, as incurred. Notwithstanding the foregoing, Astellas shall be solely responsible (without right of deduction) for all Expenses related to any Action relating to Preexisting Third Party Intellectual Property.

14.4 Enforcement. Subject to the provisions of this Section 14.4, in the event that FG or Astellas reasonably believes that any FG Technology necessary for the development, manufacture, use or sale of a Lead Compound is infringed or misappropriated by a third party or is subject to a declaratory judgment action arising from such infringement, in each case with respect to the development, manufacture, sale or use of a product within the Field and within the Astellas Territory, Astellas or FG (respectively) shall promptly notify the other party hereto. Promptly after such notice the parties shall meet to discuss the course of action to be taken with respect to an Enforcement Action (as defined below) with respect to such infringement or misappropriation, including the control thereof and sharing of costs and expenses related thereto, for the purposes of entering into a litigation agreement setting forth the same (Litigation Agreement). If the parties do not enter such Litigation Agreement, FG shall have the initial right (but not the obligation) to enforce the intellectual property rights with respect to the FG Technology, or defend any declaratory judgment action with respect thereto (such action, for purposes of this Section 14.4, an Enforcement Action).

14.4.1 Information. Absent a Litigation Agreement, the party initiating or defending any such Enforcement Action within the Field shall keep the other party hereto reasonably informed of the progress of any such Enforcement Action, and such other party shall have the right to participate with counsel of its own choice at its own expense.

14.4.2 Enforcement Costs; Recoveries. Absent a Litigation Agreement, FG shall have the initial right to initiate such an Enforcement Action, and shall notify Astellas within a reasonable time whether it elects to exercise such right. In the event that FG elects to initiate or defend such Enforcement Action, FG shall be responsible for [ * ] of the costs and expenses while Astellas shall be responsible for [ * ] of the costs and expenses, and all amounts recovered shall first be applied to reimbursement of each   -32-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   party's costs and expenses with the remainder to be allocated to FG and Astellas at the ratio of [ * ] and [ * ]. In the event that FG elects not to initiate or defend such Enforcement Action, Astellas shall have the right to initiate or defend such Enforcement Action in its own name, and to the extent permitted under Third Party Agreements, in the name of FG or in the names of both FG and Astellas, in which case, Astellas shall be responsible for [ * ] of the costs and expenses while FG shall be responsible for [ * ] of the costs and expenses, and all amounts recovered shall first be applied to reimbursement of each party's costs and expenses with the remainder to be allocated to Astellas and FG at the ratio of [ * ] and [ * ].

14.4.3 Cooperation in Enforcement Action. Absent a Litigation Agreement, at the request of the party which has the right to initiate or defend an Enforcement Action, the other party shall reasonably cooperate in the Enforcement Action, such cooperation to include, without limitation, furnishing records, information and testimony, and attending conferences, discovery proceedings, hearings, trials and appeals; provided, that the requesting party shall reimburse to the cooperating party for the out-of-pocket expenses incurred for such cooperation pursuant to the reimbursement regime set forth in Section 14.4.2.

14.5 Third Party Agreements

14.5.1 Future Agreements. It is understood that FG may find it necessary to utilize in connection with a Lead Compound intellectual property that is controlled by a non-Affiliate third party (such party, a Third Party Licensor), in addition to or in lieu of the FG Technology existing as of the Effective Date. FG shall have the right to obtain (by purchase, license, or otherwise) rights to such intellectual property with the right to sublicense to Astellas. In the event that FG determines that it must obtain such rights, it shall provide notice and submit a description of such rights to Astellas, and shall discuss with Astellas the need to obtain such rights. Astellas shall inform FG within [ * ] of receipt of such notice whether it believes it is necessary to obtain such rights for the Astellas Territory and wishes to obtain such rights. In the event Astellas determines to obtain such rights, FG shall obtain a worldwide license for the rights under such terms and conditions as are [ * ], and such intellectual property of the Third Party Licensor shall be deemed to be the part of FG Technology, provided, however, that, notwithstanding anything contained in this Agreement (i) for Preexisting Third Party Intellectual Property, [ * ] shall pay [ * ] of all consideration due in connection with the acquisition of such rights for the Astellas Territory, and (ii) for Future Third Party Intellectual Property, [ * ] shall [ * ] pay [ * ] of all consideration due in connection with the acquisition of such rights for the Astellas Territory, provided, however, notwithstanding FG's obligation to contribute to the consideration due for Future Third Party Intellectual Property under (ii) above, FG's obligation to contribute shall be limited such that in no event shall the sum of (a) the consideration FG contributes for the acquisition of intellectual property from Third Party Licensors for the Astellas Territory, and (b) the Expenses for which Astellas has the right to deduct under Section 14.3 exceed [ * ] hereunder, and Astellas shall be responsible for all consideration related to the acquisition of rights from Third Party Licensors in excess of such amount. In the event Astellas determines not to obtain such rights for the Astellas Territory, FG shall obtain a license for the FG Territory but not the Astellas Territory, and Astellas shall be solely responsible for the defense of any infringement   -33-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   Action, for all Expenses related to any such Action, and any right of Astellas to deduct Expenses under this Agreement against payments required to be made to FG hereunder shall not apply to any action brought with respect to such rights.

14.5.2 Payment; Reports. If FG is obligated to pay amounts to a Third Party Licensor, FG shall notify Astellas [ * ] in advance of the due date of such payment obligation (or such later date as FG may determine), and Astellas shall reimburse its share of such payments within [ * ] after receipt of notice therefor.

14.5.3 Limitation. To the extent that FG Patents includes any intellectual property licensed under FG's License Agreement with Imigen, Inc. relating to HIF stabilization technology dated as of October 30, 2003, and amended as from time to time of which a redacted copy shall have been provided to Astellas prior to the Effective Date, Astellas shall be considered a sublicensee and be subject to the applicable requirements thereunder.

14.5.4 Compliance with Third Party Agreements. Notwithstanding anything to the contrary contained herein, Astellas agrees to comply with the requirements (upon sublicensees or otherwise) of FG's License Agreement with Imigen, Inc. relating to HIF stabilization technology dated as of October 30, 2003. In addition, Astellas agrees to comply with the requirements (upon sublicensees or otherwise) of any future Third Party Agreements for which Astellas obtains rights through an FG license pursuant to Section 14.5.1 hereof.

ARTICLE 15 REPRESENTATIONS AND WARRANTIES

15.1 FG Warranties. FG warrants and represents to Astellas, as of the execution of this Agreement, that (i) it is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of FG; (iii) there is no pending litigation which alleges or any communication alleging that Commercialization of any Lead Compound or any compound Controlled by FG for use in the Field has infringed or misappropriated the intellectual property rights of any Third Party or has been obtained by misappropriating any Third Party's intellectual property right; and (iv) subject to the terms and conditions of the agreements for the FG Acquired Patents, FG has complete title to and ownership of the FG Patents, free and clear from any mortgages, pledges, liens, security interests, conditional and installment sale agreements, encumbrances, charges or claims of any kind.

15.2 Astellas Warranties. Astellas warrants and represents to FG, as of the execution of this Agreement, that (i) it is a corporation duly organized, validly existing and in good standing under the laws of Japan; and (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Astellas.

15.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH HEREIN, FG AND ASTELLAS EXPRESSLY DISCLAIM ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO   -34-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   THE DEVELOPMENT PROGRAM, OR THE FG TECHNOLOGY OR LEAD COMPOUNDS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF FG TECHNOLOGY, PATENTED OR UNPATENTED, AND NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

ARTICLE 16 CONFIDENTIALITY

16.1 Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose other than this Agreement any information furnished to it by the other party hereto pursuant to this Agreement which if disclosed in tangible form is marked Confidential or with other similar designation to indicate its confidential or proprietary nature or if disclosed orally is indicated orally to be confidential or proprietary by the party disclosing such information at the time of such disclosure and is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure (collectively, Confidential Information). Notwithstanding the foregoing, Confidential Information shall not include information that, in each case is demonstrated by written documentation:

(a) was already known to the receiving party, other than under an obligation of confidentiality directly or indirectly to the disclosing party at the time of disclosure hereunder;

(b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party hereunder;

(c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of this Agreement; or

(d) was subsequently lawfully disclosed to the receiving party by any third party without any confidentiality obligation directly or indirectly to the disclosing party or developed by the receiving party without reference to any information or materials disclosed by the disclosing party.

It is agreed and understood that all matters discussed and presented at the meetings of the JDC shall be considered Confidential Information hereunder, subject to the terms and conditions of this Agreement.

16.2 Permitted Disclosures. Notwithstanding the provisions of Section 16.1 above, each party hereto may disclose the other party's Confidential Information to the extent such disclosure is reasonably necessary to exercise the rights granted to it, or reserved by it, under this Agreement (including, without limitation, entering into and/or performing business or scientific relationships with respect to products outside the Field as permitted hereunder), in filing or prosecuting patent applications, prosecuting or defending litigation, complying with applicable governmental regulations, submitting information to tax or other governmental   -35-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   authorities (including regulatory authorities), or conducting clinical trials hereunder with respect to Lead Compounds, provided that if a party is required by law to make any such disclosure of the other party's Confidential Information, to the extent it may legally do so, it will give reasonable advance notice to the latter party of such disclosure and, save to the extent inappropriate in the case of patent applications or otherwise, will use its reasonable efforts to secure confidential treatment of such Confidential Information prior to its disclosure (whether through protective orders or otherwise).

16.3 Clinical Data. Except as expressly permitted under Sections 7.2 and 16.2, and for publications or disclosures in accordance with Section 5.2, neither party shall disclose to third parties pre-clinical data, clinical data or regulatory filings, comprising Confidential Information of the other party.

16.4 Press Releases. Except as may already be, or is agreed to be, publicly disclosed, in the event that either party proposes to release a press release with respect to this Agreement or the Development Program, such party shall obtain the prior written consent of the other party, which shall not be unreasonably withheld.

ARTICLE 17 INSURANCE; INDEMNIFICATION

17.1 Insurance. Each party shall secure and maintain in effect during the term of this Agreement and for a period of five (5) years thereafter insurance policy(ies) underwritten by a reputable insurance company and in a form and having limits standard and customary for entities in the biopharmaceutical industry for exposures related to the Lead Compounds. Such insurance shall include general liability, clinical trial liability and products liability coverage with respect to such party's performance of the Development Program and commercialization of Lead Compounds hereunder. Upon request by the other party hereto, certificates of insurance evidencing the coverage required above shall be provided to the other party.

17.2 Indemnification of FG. Astellas shall indemnify each of FG and its Affiliates and the directors, officers, and employees of FG and such Affiliates and the successors and assigns of any of the foregoing (the FG Indemnitees), and hold each FG Indemnitee harmless from and against any and all liabilities, damages, settlements, claims, actions, suits, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other expenses of litigation) incurred by any FG Indemnitee to the extent not otherwise covered by insurance, arising from or occurring as a result of any claim, action, suit, or other proceeding brought by third parties against a FG Indemnitee arising from or occurring as a result of any development, testing, manufacture, importation, use, offer for sale, sale or other distribution of any Lead Compound by or for the benefit of Astellas or its Affiliates or Sublicensees, distributors or agents (including, without limitation, product liability and infringement claims) except to the extent caused by failure of the Lead Compound supplied by FG to meet the Product Specifications in effect at the time of manufacture, or material deviation by FG or its sub-contractor from GMP Guidelines in manufacturing the Lead Compound, or FG's breach of this Agreement or willful misconduct.   -36-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   17.3 Indemnification of Astellas. FG shall indemnify each of Astellas and its Affiliates and the directors, officers, and employees of Astellas and such Affiliates and the successors and assigns of any of the foregoing (the Astellas Indemnitees), and hold each Astellas Indemnitee harmless from and against any and all liabilities, damages, settlements, claims, actions, suits, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other expenses of litigation) incurred by any Astellas Indemnitee to the extent not otherwise covered by insurance, arising from or occurring as a result of any claim, action, suit, or other proceeding brought by third parties against an Astellas Indemnitee to the extent caused by failure of the Lead Compound supplied by FG to meet the Product Specifications in effect at the time of manufacture, or material deviation by FG or its sub-contractor from GMP Guidelines in manufacturing the Lead Compound, except in each case in this Section 17.3 to the extent caused by Astellas' breach of this Agreement or willful misconduct.

17.4 Procedure. A party (for purposes of this Section 17.4, the Indemnitee) that intends to claim indemnification under any provision of this Agreement shall promptly notify the indemnifying party (the Indemnitor) in writing of any claim, action, suit, or other proceeding brought by third parties in respect of which the Indemnitee or any of its Affiliates, or their directors, officers, employees, successors or assigns intend to claim such indemnification hereunder. As between the parties hereto the Indemnitor shall have the right to control the defense and settlement of such claim, action, suit, or other proceeding; provided, that the Indemnitee shall have the right to participate in such defense or settlement with counsel of its own choosing at its expense. The Indemnitee shall not make any settlement of any loss, claim, damage, liability or action without the consent of the Indemnitor, to the extent such consent is not withheld unreasonably or delayed. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 17 but the omission so to deliver written notice to the Indemnitor shall not relieve the Indemnitor of any liability that it may have to any Indemnitee otherwise than under this Article 17. Without limiting the foregoing, the Indemnitee shall keep the Indemnitor fully informed of the progress of any claim, action, suit, or other proceeding for which it intends to claim indemnification under this Article 17.

ARTICLE 18 TERM AND TERMINATION

18.1 Term. This Agreement shall become effective as of the Effective Date and, shall continue in full force and effect until terminated pursuant to this Article 18.

18.2 Termination for Cause or Technical Product Failure

18.2.1 Material Breaches. FG may forthwith terminate this Agreement in the event Astellas fails to make any payment due under Articles 6, 9 or 14, within [ * ] following receipt of written notice of such default, or materially breaches its obligations under Articles 8 or 14, and fails to cure such breach within [ * ] following receipt of written notice of such default. Astellas may forthwith terminate this Agreement in the   -37-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   event FG materially breaches its obligations under Article 7 or Article 12, and fails to cure such breach within [ * ] following receipt of written notice of such default. Any termination shall become effective at the end of such [ * ] or [ * ] period unless the defaulting or breaching party (or any other party on its behalf) has cured any such default prior to the expiration of the [ * ] or [ * ] period, as the case may be.

18.2.2 Independent Activities. Notwithstanding anything contained in Section 8.3.2 or Section 14.1.1, in the event that Astellas Commercializes any molecules for the Field or the Expanded Field, except for actions taken within the Field in the course of the exercise of the licenses granted under Sections 8.1 and 13.1 hereof and expressly authorized under this Agreement, even if FG determines that Astellas' activities are completely independent of any FG Technology and/or any other FG materials, confidential information, intellectual property or other related information provided by FG to Astellas under this Agreement or any other agreement between FG and Astellas relating to the subject matter hereof, FG shall have the right at its sole discretion to terminate this Agreement upon [ * ] notice to Astellas.

18.2.3 Technical Product Failure. Astellas may terminate this Agreement upon [ * ] notice to FG upon Technical Product Failure.

18.2.4 Development Diligence Failure. FG may terminate this Agreement upon thirty (30) days notice to Astellas in the event Astellas fails to meet any of its development diligence requirements as set forth in Article 11 hereof, provided, however, that with respect to the development diligence obligations set forth in Section 11.3.2, such termination right on behalf of FG shall be triggered only upon Astellas' failure to meet such development diligence obligations for a Major Indication (except those Major Indications set forth in Section 11.3.1(iv)), and Astellas may terminate this Agreement upon thirty (30) days notice to FG in the event FG fails to meet the development diligence requirement as set forth in Section 11.2 hereof.

18.2.5 Other Material Non-Performance/Misrepresentation. Other than a breach giving rise to a termination right as set forth in Sections 18.2.1 or 18.2.4, or a termination pursuant to a Technical Product Failure as set forth in Section 18.2.3 in the event of (i) a party's breach or default in any other material respect in the performance or observance of any other material term, covenant or provision of this Agreement, or (ii) if any representation by a party contained in this Agreement shall prove to have been incorrect in any material respect when made, resulting in material adverse consequences for the other party, (any such default or material incorrect representation a Material Non-Performance), such Material Non-Performance shall be remedied only as provided in Section 18.7.4 below.

18.3 Termination in case of Generic Competition. In the event generic equivalents has captured the [ * ] of the quantity of Lead Compound sold by Astellas during the [ * ] preceding such termination calculated on a annual basis; or in the event, after the entry into the market of generic equivalents, that Astellas' annual sales fall below $[ * ] for all Lead Compounds, Astellas may terminate this Agreement upon [ * ] written notice to FG; provided, that Astellas does not Commercialize any Lead Compound after such termination until the expiration of the last to expire FG Patents applicable to such Lead Compound.   -38-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   18.4 Negative Advice from Authorities. Astellas may terminate this Agreement upon [ * ] notice to FG in the event Astellas has commenced Phase III clinical studies in those of the following Indications that FG is developing: Treatment of anemia in patients with chronic kidney disease undergoing dialysis, Treatment of anemia in patients with chronic kidney disease not undergoing dialysis and [ * ], and the Japanese Ministry of Health, Labor & Welfare has provided written notification that it will not approve the Lead Compounds in such Indications or the JDC determines, after the submission by Astellas of Marketing Approval Applications for such Indications, and the receipt of a response or request of the Japanese Ministry of Health, Labor & Welfare that contains development demands that are so onerous that it is not reasonable to continue with Development of the Lead Compounds in such Indications.

18.5 Admission of Invalidity or Unenforceability of FG Patent. Astellas may terminate this Agreement upon [ * ] notice to FG in the event that FG enters into a settlement under Section 14.3 that admits the invalidity or unenforceability of all patents within the FG Technology, including patents covering Lead Compounds.

18.6 Termination upon Notice. Subject to Section 18.7.2, Astellas may terminate this Agreement upon six (6) months notice to FG for any reason or no reason.

18.7 Effect of Termination

18.7.1 Accrued Obligations. Termination of this Agreement for any reason shall not release either party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination nor preclude either party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.

18.7.2 Termination. In the event of (a) a termination by Astellas under Section 18.6 during the period from the execution of this Agreement until the last to expire of the FG Patents, or (b) by FG under Section 18.2.1, 18.2.2, 18.2.4 or 18.2.5 hereof, Astellas shall, upon the effective date of such termination, pay to FG (i) a termination fee of $[ * ] U.S. dollars and (ii) any payments to which FG is otherwise entitled to receive hereunder in the period from the date of such termination notice until the [ * ].

18.7.3 Survival. Articles 1, 5, 14, 16, 17, 18, 19 and 20, and Sections 8.3.3 and 10.5, shall survive any termination of this Agreement, along with FG's rights and Astellas' obligations (but not Astellas' rights or FG's obligations, except to the extent required by the Japanese Ministry of Health, Labor and Welfare) under Section 5.1.1 and Article 7. In addition, the following provisions shall survive termination of this Agreement for any reason: Astellas shall assign or cause to be assigned to FG (or if not so assignable, Astellas shall take all reasonable actions to make available to FG) all regulatory filings and registrations (including MAAs and Marketing Approvals) with respect to the Lead Compounds that have been filed or made by or under authority of Astellas, and the rights in trademark with respect to each Lead Compound as provided for in Section 4.4.1, in each case such assignment (or availability)   -39-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   shall be made within [ * ] after the notice of termination. From and after the date of a notice of termination, FG shall have no further obligations under this Agreement beyond those obligations that survive termination in such events as specified in this Section 18.7.3.

18.7.4 Material Non-Performance. In the event of any Material Non-Performance by a party, the other party shall, without reasonable delay following discovery of such Material Non-Performance notify the defaulting party in writing, and the parties shall consult with each other in good faith to endeavor to agree upon the most effective means to cure such Material Non-Performance and, if necessary, to effect a remedy in favor of the non-defaulting party for the consequences of such Material Non-Performance by the defaulting party (collectively, the Resolution). In the event (i) the parties are unable to agree upon Resolution, or (ii) the defaulting party, in the exercise of reasonable diligence shall have been unable to remedy such Material Non-Performance, then in either such event the remedy of the non-defaulting party with respect to the Material Non-Performance by the defaulting party shall be determined by arbitration pursuant to Section 19.2 hereof, and the arbitrators shall be authorized to fashion such remedy, including equitable relief, which may include termination of this Agreement in whole or in part, as the arbitrators shall determine appropriate, except that termination of this Agreement in whole shall only be the remedy of last resort.

18.7.5 License Upon Termination. In the event of a termination of this Agreement, FG shall have an irrevocable, exclusive, license, with the right to grant and authorize sublicenses, to any trademarks used by Astellas in association with the Lead Compounds hereunder to make, use, sell, import and otherwise exploit products within the Field in the Astellas Territory. Such license shall be royalty-free, provided, however, if such trademark is not a global trademark (i.e. materially different from the trademark used in the FG Territory) and either (i) if Astellas terminates this Agreement under Section 18.2.1 or 18.2.4, or (ii) if this Agreement is terminated in accordance with the procedure as provided for in Section 18.2.5 as a result of FG's Material Non-Performance, in which event FG and Astellas shall negotiate in good faith a reasonable fee for such license.

ARTICLE 19 DISPUTE RESOLUTION

19.1 Disputes. If the parties are unable to resolve any dispute between them regarding the breach, interpretation or enforcement of this Agreement, either party may, by written notice to the other, have such dispute referred to their Authorized Designees, provided that such individuals are not directly involved in the dispute (i.e., the dispute occurs at the JDC, such individuals shall not be members of the JDC), for good faith negotiations. If after [ * ] such executives are unable to resolve the issue, each of Astellas and FG shall have the right to refer the matter to mediation upon notice to the other party, and the parties shall choose a mediator within [ * ] of the receipt of such notice, and shall negotiate in good faith to resolve such matter through the mediator within [ * ] thereafter.

19.2 Full Arbitration. Any dispute, controversy or claim arising out of or relating to the breach, interpretation or enforcement of this Agreement, including disputes relating to termination of this Agreement, shall be settled by binding arbitration in the manner   -40-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   described in this Section 19.2. The arbitration shall be conducted pursuant to the rules of Arbitration of the International Chamber of Commerce then in effect. Notwithstanding those rules, the following provisions shall apply to the arbitration hereunder:

19.2.1 Arbitrators. The arbitration shall be conducted by a panel of three (3) arbitrators, with one (1) arbitrator chosen by each of FG and Astellas and the third appointed by the other two (2) arbitrators. If the parties are unable to agree upon a single arbitrator, or the third arbitrator in case of a panel of three (3), such third arbitrator (as the case may be) shall be appointed in accordance with the rules of the Arbitration of the International Chamber of Commerce.

19.2.2 Proceedings. Except as otherwise provided herein, the parties shall use their best efforts to complete the arbitration within [ * ] after the appointment of the Panel under Section 19.2.1 above, unless a party can demonstrate to the Panel that the complexity of the issues or other reasons warrant the extension of one or more of the time tables. In such case, the Panel may extend such time table as reasonably required. The Panel shall, in rendering its decision, apply the substantive law of the State of California, without regard to its conflicts of laws provisions, except that the interpretation of and enforcement of this Article 19 shall be governed by the U.S. Federal Arbitration Act. The proceeding shall be conducted in English and shall take place in the city of Vancouver, British Columbia, Canada. The judgment of the Panel shall be binding upon the parties and enforceable in any court of competent jurisdiction.

19.2.3 Interim Relief. Notwithstanding anything in this Article 19 to the contrary, FG and Astellas shall each have the right to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other similar interim or conservatory relief, as necessary, pending resolution under the above described arbitration procedures. Nothing in the preceding sentence shall be interpreted as limiting the powers of the arbitrators with respect to any dispute subject to arbitration under this Agreement.

ARTICLE 20 MISCELLANEOUS

20.1 Confidential Terms. Except as expressly provided herein, each party agrees not to disclose any terms of this Agreement to any third party without the consent of the other party, except (i) as required by securities or other applicable laws or (ii) to prospective and other investors and such party's accountants, attorneys and other professional advisors, or (iii) to others under reasonable conditions of confidentiality.

20.2 Governing Law. This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with, the laws of the State of California, without reference to conflicts of laws principles.

20.3 Force Majeure. Nonperformance of any party (except for payment of amounts due hereunder) shall be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-   -41-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   performing party. In such event FG or Astellas, as the case may be, shall promptly notify the other party of such inability and of the period for which such inability is anticipated to continue. Without limiting the foregoing, the party subject to such inability shall use reasonable efforts to minimize the duration of any force majeure event.

20.4 No Implied Waivers; Rights Cumulative. No failure on the part of FG or Astellas to exercise and no delay in exercising any right under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, nor shall any partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.

20.5 Independent Contractors. Nothing contained in this Agreement is intended implicitly, or is to be construed, to constitute FG or Astellas as partners in the legal sense. No party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of any other party or to bind any other party to any contract, agreement or undertaking with any third party.

20.6 Notices. All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, postage prepaid; facsimile transmission (receipt verified); or express courier service (signature required), in each case to the respective address specified below, or such other address or fax number as may be specified in writing to the other party hereto:   Astellas:   Astellas Pharma Inc.   Attn: Director of Legal Department   [ * ]

with copy to:   Astellas Pharma Inc.   Attn: Licensing, Corporate Strategy   [ * ]

FG:   FibroGen, Inc.   Attn: Chief Executive Officer   225 Gateway Boulevard   San Francisco, California 94080   Fax: 1-650-866-7202

with a copy to:   FibroGen, Inc.

  Attn: Legal Department   225 Gateway Boulevard   San Francisco, California 94080   Fax: 1-650-866-7343   -42-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   20.7 Assignment. This Agreement shall not be assignable by either party to any third party without the written consent of the other party hereto; except that either party may assign this Agreement without the other party's consent to an entity that acquires substantially all of the business or assets of the assigning party within the Field, in each case whether by merger, transfer of assets, or otherwise. Upon a permitted assignment of this Agreement, all references herein to the assigning party shall be deemed references to the party to whom the Agreement is so assigned.

20.8 Modification. No amendment or modification of any provision of this Agreement shall be effective unless in writing signed by all parties hereto. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by all parties.

20.9 Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.

20.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together, shall constitute one and the same instrument.

20.11 Headings. Headings used herein are for convenience only and shall not in any way affect the construction of or be taken into consideration in interpreting this Agreement.

20.12 Export Laws. Notwithstanding anything to the contrary contained herein, all obligations of FG and Astellas are subject to prior compliance with United States and foreign export regulations and such other United States and foreign laws and regulations as may be applicable, and to obtaining all necessary approvals required by the applicable agencies of the governments of the United States and foreign jurisdictions. FG and Astellas shall cooperate with each other and shall provide assistance to the other as reasonably necessary to obtain any required approvals.

20.13 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

20.14 Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire agreement, both written or oral, with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, including the Binding Term Sheet, dated as of February 9, 2004 by and between FG and Astellas, as amended   -43-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   on January 25, 2005, whether written or oral, between FG and Astellas with respect to such subject matter.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered in duplicate originals as of the date first above written.   ASTELLAS PHARMA INC.   FIBROGEN, INC.

By:   /s/ Toichi Takenaka   By:   /s/ Thomas B. Neff

  Toichi Takenaka President and Chief Executive Officer     Thomas Neff President and Chief Executive Officer

Date:   1.September.05   Date:   23 August 05   -44-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   EXHIBIT A  LIST OF PATENTS

[ * ]   -45-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   EXHIBIT B  INDICATIONS

Included indications:

  •   Treatment of anemia in patients with chronic kidney disease undergoing dialysis

  •   Treatment of anemia in patients with chronic kidney disease not undergoing dialysis

  •   [ * ]    -46-

[ * ] = 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 406 of the Securities Act of 1933, as amended.





CONFIDENTIAL   EXECUTION COPY   EXHIBIT C  INITIAL DEVELOPMENT PLAN

[ * ]    -47-

[ * ] = 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 406 of the Securities Act of 1933, as amended. 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

SOLUTION: 127115

PROBLEM: 1                                                                     Exhibit 10.2

                           CO-HOSTING AGREEMENT

  This Co-Hosting Agreement (the Agreement) is made by and between NETWORKS ASSOCIATES, INC., a Delaware corporation, doing business as Network Associates, Inc., with its principal place of business at 3965 Freedom Circle, Santa Clara, California 95054 (NAI), and SOFTWARE.NET CORPORATION, a Delaware corporation, a.k.a. Beyond.com, with its principal place of business at 1195 West Fremont Avenue, Sunnyvale, California 94087 (Co-Host). The Effective Date of this Agreement (herein called the Effective Date) is September 21, 1998.

                                 RECITALS

  WHEREAS, Co-Host owns various Internet locations, including the location set forth in Part 1 of Exhibit A hereto (the Co-Host Site) and markets software and computer hardware products from the Co-Host Site (herein referred to as the Goods).

  WHEREAS, Co-Host, as successor of Cybersource Corporation, and NAI are parties to an Electronic Software Distribution Agreement, dated as of September 1, 1997 regarding the electronic distribution of NAI's Goods (the ESD Agreement).

  WHEREAS, NAI has developed various Internet locations (the NAI Internet Sites) (with separate URL designations issued to NAI by InterNIC) (said designations being herein referred to individually as an URL) comprised of one or more file servers, with an Internet access at the applicable URL. Those portions of the NAI Internet Site or any future Internet locations developed by NAI which are accessible by members of the general public are referred to herein as the Originating Locations. NAI permits the maintenance of hot links from the Originating Locations to other Internet locations, whereby the end user can transfer from the NAI Internet Sites to the Co-Host Site by clicking the pointing device on highlighted text or images. Originating Locations does not include the McAffee Mall (as defined in Part 2 of Exhibit A) or web servers within a firewall or accessable only by passwords or other similarly restricted URLs (the Restricted Sites); provided, however, that the term Restricted Sites shall not include sites accessable only through online services (such as AOL) and other portals generally accessable to the public.

  WHEREAS, NAI and Co-Host desire to place a Co-Host hot link for the Goods at the Originating Locations and NAI and Co-Host desire to enter into certain additional agreements regarding such marketing opportunities through the Originating Locations.

  THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, Co-Host and NAI have entered into the agreements hereinafter set forth.

                                    1

2      IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date.

                                    SOFTWARE.NET CORPORATION                                        (a.k.a. Beyond.com)

ADDRESS FOR NOTICES 1195 West Fremont Avenue Sunnyvale, California 94087 Attention: President

                                    By:        /s/ JAMES R. LUSSIOR                                            -------------------------------------                                        Name:          James R. Lussior                                              -----------------------------------                                        Title: Vice President Business Operations                                               ----------------------------------                                        Date:               9/21/98                                              -----------------------------------

                                    NETWORKS ASSOCIATES, INC.

ADDRESS FOR NOTICES 3965 Freedom Circle Santa Clara, California 95054 Attention:  Vice President             Legal Affairs

                                    By:           /s/ PRABHAT K. GOTAL                                            -------------------------------------                                        Name:             Prabhat K. Gotal                                              -----------------------------------                                        Title:                CFO                                               ----------------------------------

Date: September 21, 1998





                                    2    3

                     TERMS AND CONDITIONS OF AGREEMENT

1.   LOCATION. During the Term (as defined in Section 6 (a) below), NAI shall      provide the following marketing considerations to Co-Host:

  (a)  Co-Hosting Rights. Co-Host shall be permitted to maintain on the           Online Service Page (as defined in Part 2 of Exhibit A) of the           Originating Locations in the manner set forth on Exhibit B hereto           (and on such other positions as are set forth on Exhibit B or as the           parties may mutually agree upon in writing from time to time) a hot           link to Internet locations specified by the Co-Host (the           Destination) from which Goods (other than Competitor's Goods           (hereinafter defined)) may be sold. The web pages at the Destination           shall be maintained in accordance with the requirements of this           Agreement, including without limitation, Section 2 hereof.           Competitor's Goods as used herein shall mean the Goods of any of the           persons or entities described on Part 1 of Exhibit C attached hereto           and made a part hereof. The Destination shall not contain any links to           any third party sites for the purchase of Competitor's Goods; provided           that the Destination will link to the Co-Host Site (which will sell           Competitor's Goods).

  (b)  Exclusive Positioning. Co-Host shall be the exclusive reseller of           software products (Software) at the Originating Locations. The           preceding sentence shall not prohibit NAI from (i) reselling Software           including NAI Goods (hereinafter defined) from the McAfee Mall; (ii)           referencing and linking to sites of strategic partners (other than           competitors of Co-Host listed on Part 2 of Exhibit C) which may also           be involved in the resale of Software from such sites; provided that           no Software may be purchased on the page of such site which is linked           to any Originating Location and further provided that the references           and links to the sites of strategic partners shall not be placed on           the Online Service Page; and (iii) advertising Software with banners,           buttons and other forms of online advertising; provided that any link           from such advertising takes the end user to the publisher of the           Software and not a reseller of Goods (other than Co-Host). For           example, an advertising banner or button for the Windows 98 software           program may link back to the website of Microsoft Corporation but not           the website of Dell Computer Corporation which is reselling the           program. Without limitation on the foregoing, NAI may co-host a           comparative shopping service on the Originating Locations. NAI will           obtain a written covenant that the comparative shopping co-host will           present sellers of Software in a neutral manner and upon request of           Co-Host will require removal or alteration of presentations by such           co-host on such co-hosted facility which Co-Host reasonably deems to           be non-neutral; provided, however, that, notwithstanding the           foregoing, Co-Host may be the featured or most prominent Software           reseller on any such service.

  (c)  Short Term Product Exclusives. For a period of fourteen (14) days           following release of any new NAI Goods or major version releases           (i.e., version 3.0 to 4.0) of existing NAI Goods, Co-Host shall be the           exclusive online seller of any such

                                    3    4

       release released during the Term. NAI Goods as used herein shall           mean retail desktop software products offered by NAI under the           McAfee brand or other NAI owned brand, which NAI makes available for           resale through distributors and resellers via the Internet.

  (d)  Reference Site. Co-Host may refer to the Originating Locations as a           Co-Host customer location and to NAI as a Co-Host customer hereunder           provided all such references shall be subject to the prior review and           approval of NAI, which approval will not be unreasonably withheld.

  (e)  Links to Online Service Page. Any end user accessing the principal           URLs of NAI (e.g., mcafee.com, cybermedia.com, pgp.com, tis.com) shall           be taken to the Online Service Page. Any end user accessing a buy           button on any of the Originating Locations shall be taken to the           Online Service Page. NAI shall not sell retail desktop consumer           products, including without limitation, NAI Goods from the NAI           Internet Sites (other than the McAfee Mall).

       NAI reserves the right to change the URL of the Originating Locations           from time to time and agrees to give Co-Host as much notice of any           such change as is practicable.

2.   MARKETING AND SALES.

  (a)  Placement of Order. In consideration of the Co-Hosting Fee set forth           in Part 3 of Exhibit A, NAI shall provide the marketing           consideration identified in Section 1 during the Term of this





       Agreement.

  (b)  Advertising Materials; Destination Operation. Co-Host shall provide to           NAI artwork and text materials with respect to the advertisement of           the Destination at the Originating Locations. Such artwork and           materials must be non-infringing, inoffensive, accurate, truthful and           otherwise comply with all applicable laws. Co-Host shall comply with           all applicable laws in connection with the operation of the           Destination, including without limitation, requirements regarding the           confidentiality of information concerning end users. NAI retains the           right, but not the obligation, to disapprove or remove any           advertisements or advertising materials it reasonably deems illegal,           inappropriate or otherwise inconsistent with the purposes of the           Originating Sites, without the consent of Co-Host.

  (c)  Use of Trademarks. Co-Host hereby grants to NAI a non-exclusive,           non-transferable, royalty-free license during the term of this           Agreement to use the trademarks, service marks and trade names of           Co-Host in connection with the advertising and promotion of the Goods           from the Originating Locations, provided that NAI complies with the           terms of Section 9(b) of the Web Site Services Agreement (as defined           below). Co-Host reserves the right to terminate the foregoing right,           after giving NAI notice and opportunity to cure the allegedly harmful           use, if in Co-Host's reasonable judgment, NAI's use of such           trademarks, service marks and trade names harms the business, image or           goodwill of Co-Host.

                                    4    5

  (d)  Limited Duty of Promotion. NAI shall have no duty or obligation to           advertise or promote the Goods, other than as set forth in this           Section 2. Except as expressly set forth herein (including, without           limitation, as set forth in this Section 2(d)), NAI does not,           expressly or impliedly, guaranty or warrant any results or level of           sales or customer leads to Co-Host. NAI reserves the right to cease           publication of the Originating Locations for brief periods from time           to time for maintenance or other purposes; provided that the           Originating Locations will comply with the same Uptime Requirements           specified with respect to the Managed Site in the Web Site Services           Agreement.

  (e)  Marketing Promotions. During the Term, Co-Host and NAI will regularly           discuss and implement mutually agreed upon jointly funded marketing           promotions. NAI and Co-Host hereby agree that the marketing promotions           set forth on Exhibit D hereto will be implemented as set forth on           Exhibit D.

  (f)  Distribution of Physical Products. NAI grants to Co-Host the right to           distribute physical copies of NAI's Goods to end users ordering from           the Managed Site, the Destination or Beyond.com upon the terms set           forth in Exhibit E attached hereto and made a part hereof.

3.   PAYMENT AND RECORDS.

  (a)  Fees. Subject to the provisions of Section 6 hereof, Co-Host shall pay           to NAI the amount designated in Part 3 of Exhibit A as the           Co-Hosting Fee upon the schedule set forth in such Part.

  (b)  Payment Terms. Except as set forth in such Part 3 of Exhibit A,           payments from Co-Host to NAI shall be due thirty (30) days from the           date of invoice. All payments will be made in United States dollars,           free of any taxes then currently applicable, at the address designated           above by NAI. Late payments shall bear interest at the lesser of: (i)           the maximum rate permitted by law, and (ii) the rate of 1.5% per month           from the due date until paid.

4.   EQUITABLE RELIEF. Each party acknowledges that any breach of its      obligations under this Agreement with respect to the proprietary rights or      confidential information of the other party will cause the other party      irreparable injury for which there are inadequate remedies at law, and      therefore such other party will be entitled to equitable relief in addition      to all other remedies provided by this Agreement or available at law.

5.   PROPRIETARY RIGHTS. NAI retains ownership of the NAI Internet Site, the      Originating Locations, the trademarks and all intellectual property rights      in connection with the NAI Internet Site, including without limitation, its      URL designations and all rights from InterNIC in connection therewith.      Co-Host and its licensors retain ownership of all intellectual property      rights in the advertising materials provided, the trademarks and all      intellectual property rights in connection with the Destination and the      Co-Host Site, including, without limitation, its URL designations and all      rights from InterNIC in connection therewith, and all of its other      intellectual property rights.

                                    5    6

6.   TERM AND TERMINATION.

  (a)  Term. This Agreement will commence on the Effective Date, and will           terminate on the third anniversary of the Effective Date (the Term),           unless earlier terminated as provided in this Agreement.





  (b)  Termination. A party may terminate this Agreement immediately: (i) if           the other party engages in any material unlawful business practice and           such practice continues uncured thirty (30) days following written           notice thereof, (ii) if the other party fails to perform any material           obligation, (which shall include, without limitation, the payment           obligations hereunder and compliance with the Uptime Requirements in           respect of the Originating Locations) or violates any material           restriction contained in this Agreement and such failure continues           uncured thirty (30) days following written notice thereof, (iii) by           such party if that certain Web Site Services Agreement between NAI and           Co-Host dated of even date herewith (the Web Site Services           Agreement) or the ESD Agreement is terminated by the other party,           (iv) if a receiver is appointed for the other party or its property,           (v) if the other party makes an assignment for the benefit of           creditors, (vi) if the other party becomes the subject of any           proceeding under any bankruptcy, insolvency or debtor's relief law,           (vii) upon ninety (90) days prior notice in writing by Co-Host at any           time after June 30, 2000, if the term of the Web Site Services           Agreement has not been renewed for an additional term of one (1) year           or more pursuant to its terms or (viii) if the party terminates the           Web Site Services Agreement by reason of the other party's material           default thereunder.

  (c)  Effect of Termination. Upon the effective date of the termination, all           outstanding invoices and other invoicable amounts will become due and           payable. Co-Host's contractual right to the marketing consideration           shall cease immediately upon the effective date of the termination.           Termination or expiration of this Agreement if by reason of material           breach by Co-Host shall not affect any of Co-Host's payment           obligations, all of which survive termination of this Agreement;           provided that, in (i) the event of termination of this Agreement by           Co-Host due to a material default by NAI, NAI shall pay to the Co-Host           the Liquidated Damages Amount (as defined in Part 2 of Exhibit A).

7.   CONFIDENTIALITY. Confidential Information disclosed by either party in      writing and marked as confidential, proprietary or the like (or      disclosed verbally if a written summary is provided within thirty days),      including any information relating to such party's research, development,      proprietary technology, product and marketing plans, finances, personnel      and business opportunities will be considered confidential information.      Each party will not use the other party's confidential information except      as required to achieve the objectives of this Agreement and will not      disclose such confidential information except to employees, agents and      contractors who have a need to know in the discharge of their duties under      this Agreement. Such restrictions will not apply to information that      becomes public knowledge other than through the disclosing party, is      independently developed by the non-disclosing party, or is lawfully      required to be disclosed by any governmental agency or otherwise required      to be disclosed by law.

                                    6    7

  Neither party will make any disclosure of, or statement covering, the terms      of this Agreement, including the financial terms, to any third parties      (other than its attorneys, accountants and professional consultants),      without obtaining the other's prior written consent, except as required by      court order or applicable regulatory authorities, including without      limitation, the rules and regulations of the Securities and Exchange      Commission, any stock exchange and the NASDAQ. The parties agree that under      their current understanding, disclosure of the financial terms of this      Agreement is not required under the foregoing rules and regulations. The      obligations of this Section 7 shall survive the termination of this      Agreement, under any circumstances. The parties shall make a joint press      release announcing the relationship, the timing and content of which shall      be subject to the mutual agreement of the parties.

8.   RELATIONSHIP OF THE PARTIES. The parties are independent contractors and      not partners, joint venturers or agents, and neither party may obligate the      other to any warranty or other obligation. Neither NAI nor Co-Host is by      virtue of this Agreement authorized as an agent or other representative of      the other party.

9.   REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.

  (a)  Co-Host represents and warrants to NAI that Co-Host has all right,           title, ownership interest and/or marketing rights necessary to provide           the advertising materials to NAI, to perform its obligations hereunder           and to operate the Destination. Each party further represents and           warrants to the other that it has not entered into any agreements or           commitments which are inconsistent with or in conflict with the rights           granted or obligations incurred by the representing party in this           Agreement. Co-Host further represents and warrants that the           advertising materials supplied hereunder do not infringe any Covered           Country (hereinafter defined) copyright, trademark, or trade secret           right. Covered Country shall mean the United States of America and any           member state of the European Economic Union. Co-Host agrees that, if           notified promptly in writing and given sole control of the defense and           all related settlement negotiations, it will defend NAI, its           employees, officers and agents, against any claim based on an           allegation that (i) advertising materials supplied hereunder infringes           a Covered Country patent, copyright, trademark or state trade secret           right, or (ii) Co-Host violated any law, statute or ordinance or any           governmental or administrative order, rule or regulation with regard





       to the advertising materials, the operation of the Destination or the           manufacture, possession, distribution, use or sale of the Goods.           Co-Host will pay any resulting costs, damages and attorneys' fees           finally awarded by a court, or agreed to in settlement by Co-Host,           with respect to any such claims. NAI agrees that, if the advertising           materials become, or in Co-Host's opinion are likely to become, the           subject of an infringement claim, NAI will permit Co-Host, at           Co-Host's option and expense, to, among other things, procure the           right for NAI to continue marketing and using the advertising           materials, or to replace or modify them so that they become           non-infringing.

                                    7    8

  (b)  NAI represents and warrants that NAI has all right, title, ownership           interest and/or marketing rights necessary to operate the Originating           Locations, provide the Products to Co-Host, and the Products shall be           free and clear of all liens and encumbrances. NAI further represents           and warrants that it has not entered into any agreements or           commitments which are inconsistent with or in conflict with the rights           granted to Co-Host in this Agreement. NAI further represents and           warrants that the Products supplied hereunder do not infringe any           Covered Country patent, copyright, trademark, or trade secret right.           NAI agrees that, if notified promptly in writing and given sole           control of the defense and all related settlement negotiations, it           will defend Co-Host, its employees, officers and agents against any           claim based on an allegation that (i) a Product supplied hereunder           infringes a Covered Country patent, copyright, trademark or trade           secret right, or (ii) NAI violated any law, statute or ordinance or           any governmental or administrative order, rule or regulation with           regard to a Product or its manufacturer, possession, use or sale. NAI           will pay any resulting costs, damages and attorneys' fees finally           awarded by a court, or agreed to in settlement by NAI, with respect to           any such claims to the extent of the compensation received under this           Agreement. Co-Host agrees that, if the Products in the inventory of           Co-Host, or the operation thereof, become, or in NAI's opinion are           likely to become, the subject of an infringement claim, Co-Host will           permit NAI, at NAI's option and expense, to, among other things,           procure the right for Co-Host to continue marketing and using such           Products, or to replace or modify them so that they become           non-infringing. If neither of the foregoing alternatives is available           on terms that NAI deems reasonable, Co-Host will return such Products           on written request from NAI. NAI will grant Co-Host a credit equal to           the price paid by Co-Host for such returned Products, as adjusted for           discounts, returns and credits actually given, provided that such           returned Products are in an undamaged condition. NAI will have no           obligation to Co-Host with respect to infringement of patents,           copyrights, trademarks or trade secrets or other proprietary rights           beyond that stated in this Section 9(b).

  (c)  No Combination Claims. Notwithstanding Section 9(b), NAI will not be           liable to Co-Host for any claims to the extent they arise solely based           upon the combination, operation or use of any Product with equipment,           data or programming not supplied by NAI, or to the extent they arise           solely based upon the alteration or modification of the Products by           the Co-Host or the purchaser of such Products.

10.  LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS UNDER SECTION 9 HEREOF, THE      LIABILITY OF A PARTY TO THE OTHER FOR DIRECT DAMAGES SHALL NOT EXCEED      FIFTEEN MILLION DOLLARS. EXCLUSIVE OF ANY CLAIMS BY THIRD PARTIES FOR      INJURY OR DAMAGES TO PERSONS OR TANGIBLE PROPERTY DIRECTLY CAUSED BY ANY      PRODUCT, NEITHER PARTY'S LIABILITY WITH REGARD TO THIS AGREEMENT OR THE      ADVERTISING MATERIALS, IF ANY, WILL INCLUDE CONSEQUENTIAL, INCIDENTAL,      SPECIAL OR OTHER INDIRECT DAMAGES, SUCH AS LOST PROFITS, EVEN IF

                                    8    9

  THE OTHER PARTY HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES.

11.  FORCE MAJEURE. Neither party shall be liable for the failure to perform any      of its obligations under this Agreement, except for payment obligations, if      such failure is caused by the occurrence of any event beyond the reasonable      control of such party, including without limitation, fire, flood, strikes      and other industrial disturbances, failure of raw materials suppliers,      failure of transport, accidents, transmission difficulties, phone service      interruptions, riots, insurrections, acts of God or orders of governmental      agencies.

12.  GENERAL.

  (a)  This Agreement, the Web Site Services Agreement and the certain ESD           Agreement between the parties set forth the entire agreement between           the parties on all subject matters and supercede all prior agreements           and understandings between the parties.

  (b)  This Agreement may not be changed, terminated or amended except in           writing. Whenever the consent of any party is required hereunder, such           consent may be given or withheld in such party's sole discretion and           with or without reason or cause, unless this Agreement states           otherwise.





  (c)  The parties agree that the terms and conditions of this Agreement           shall prevail over any contrary or additional terms in any purchase           order (unless agreed to in writing by both parties), sales           acknowledgment, confirmation or any other document issued by either           party affecting the purchase and/or sale of Goods. The terms of the           Exhibits to this Agreement shall be equal in importance to the terms           of the body of this Agreement.

  (d)  Either party's failure or delay in exercising any of its rights will           not constitute a waiver of such rights unless expressly waived in           writing. Neither party may assign this Agreement without the other's           prior written approval, except by operation of law or in connection           with the sale of substantially all of the assets of such party's           business or the acquisition of such party by a third party.

  (e)  This Agreement will be governed and interpreted according to the laws           of the State of California, without reference to principles of           conflicts of laws. Each party hereto expressly consents to the           personal jurisdiction of the state and federal courts located in Santa           Clara County, California, and expressly waives any defense to any           action based on inconvenient forum, choice of venue, lack of personal           jurisdiction, sufficiency of service of process or the like.

  (f)  In the event of any litigation or arbitral proceeding between they           parties regarding this Agreement, the advertising materials or the           obligations of the parties hereunder, the party not prevailing therein           shall pay the reasonable attorneys' fees and court costs of the party           prevailing therein.

                                    9    10

  (g)  If a court of law finds any provision of this Agreement unenforceable,           the parties agree to modify such provision to the extent necessary to           make it legal and enforceable while preserving its intent and the           economic effect of the unenforceable provision.

  (h)  Any notices and demands provided hereunder must be in writing and will           be deemed given upon the earlier of actual receipt or two (2) days           after being sent by overnight Federal Express or Express Mail, return           receipt requested, to the appropriate address set forth above, as such           contacts and addresses may be changed by written notice to the other           party.

                                    10    11

                                EXHIBIT A

                        Additional Agreement Terms                  (with location of first reference in Agreement)

1.   Destination                                                      (Recitals)

  www.mol.com or any successor site, which shall be the page to which traffic is directed from the public NAI URLs.

  Co-Host Site      www.beyond.com

2.   Certain Definitions

  1. Aggregate Revenue in any year of the Term shall mean the revenue generated in such year by (i) the sale of Goods to customers entering the Co-Host Site through the Destination,and (ii) sales of Goods from the Managed Site (as defined in the Web Site Services Agreement).

  2. Liquidated Damages Amount shall mean the difference between (i) the aggregate amount of the Co-Hosting Fee paid by Co-Host (the Aggregate Fee) and (ii) the Aggregate Fee multiplied by a number the numerator of which shall be the actual Aggregate Revenue through the effective date of termination of the Agreement and the denominator of which shall be the aggregate of the Minimum Revenue Targets through the effective date of the termination.

  3. McAfee Mall shall mean the same thing as the Managed Site under the Web Site Services Agreement.

  4. Online Service Page shall mean the general reference page for the NAI Sites established under the URL www.mol.com or any successor URL.

  5. Minimum Revenue Targets shall mean: (i) in the first (1st) year of the Term, Aggregate Revenues of not less than Nine Million Dollars ($9,000,000) and (ii) in the second (2nd) year of the Term, Aggregate Revenues of not less than Twelve Million Dollars ($12,000,000).

3.   Co-Hosting Fee                                              (Section 2(a))      Co-Host shall pay to NAI a Co-Hosting Fee in the following amounts:

  (a)  A non-refundable initial payment of Two Million Five Hundred Thousand           Dollars ($2,500,000) payable as follows: $2,000,000 on or before





       September 30, 1998, and the balance within sixty (60) days of the           execution of this Agreement.

                                    11    12

  (b)  Quarterly payments of $312,500 each, with the first payment being due           September 15, 1999, and on each December 15, March 15, June 15, and           September 15 thereafter during the Term unless (i) the Agreement is           terminated in accordance with Section 6 of the Agreement prior to such           date in which case no quarterly payments will be due following the           effective date of such termination or (ii) if the Minimum Revenue           Target (as defined in Part 2 of this Exhibit A) for the first year           of the Term is not achieved by the first anniversary of the Effective           Date, in which case no quarterly payments are payable until such time           as the Minimum Revenue Target for the first year of the Term is           achieved at which point Co-Host will resume making future quarterly           payments on the schedule and in the amount set forth above for the           duration of the Term or (iii) if the aggregate Minimum Revenue Targets           (as defined in Part 2 of this Exhibit A) for the first and second           year of the Term are not achieved by the second anniversary of the           Effective Date, then, even if the Minimum Revenue Target (as defined           in Part 2 of this Exhibit A) for the first year of the Term has been           achieved prior to such second Anniversary, no quarterly payments are           payable during the second year of the Term until such time as such           aggregate Minimum Revenue Target is achieved at which point Co-Host           will resume making future quarterly payments on the schedule and in           the amount set forth above for the duration of the Term. The parties           hereby agree to renegotiate in good faith a downward adjustment to the           foregoing quarterly payments in the event that the Minimum Revenue           Target for year one (1) is not achieved in the first year of this           Agreement.

                                    12    13

                                EXHIBIT B

     SPECIFICATIONS FOR HOT LINK FROM THE ONLINE SERVICE PAGE OF ANY                               ORIGINATING LOCATION

The hot link to the Co-Host site shall be no less prominent (whether is size, location or format) than any hot link to the McAfee Mall from the Online Service Page. In addition, in the event that any hot links to the McAfee Mall are located on any web page on the Originating Locations other than on the Online Service Page, then a hot link to the Co-Host Site shall all be located on such web page and shall be no less prominent (whether is size, location or format) than any hot link to the McAfee Mall. Notwithstanding the foregoing, the hot links to the Co-Host Site referred to above shall be no less prominent (whether in size, location or format) than any third party hot link on the Online Service Page or the Originating Locations.

                                    13    14

                                EXHIBIT C

                            COMPETITORS OF NAI

PART 1

Computer  Associates International, Inc. Symantec Corporation Check Point Software Internet Security Systems, Inc. Cisco Systems (only with respect to firewall products) Security Dynamics

                          COMPETITORS OF CO-HOST

PART 2

Microwarehouse CompUSA Insight PC Connection





Best Buy Circuit City Cyberian Outpost Digital River Egghead.com Programmers Paradise Office Max Online Software Store Office Depot Online Software Store Staples Online Software Store WalMart Online Software Store BuyDirect.com Barnes & Noble Online Software Store Amazon.com Software Store Dell Computer Online Software Store Gateway 2000 Online Software Store Software Street Techwave and related companies CDW Online Store

THE PARTIES AGREE TO ACT IN GOOD FAITH IN MODIFYING THE ABOVE LIST OF COMPETITORS.

                                    14    15

                                EXHIBIT D

                         Joint Marketing Programs

  PROGRAM:                                                   FUNDING:

1.   NAI will make five e-mail promotions during the fourth quarter of 1998 for      NAI products which will contain links to the Online Service Page.

2.   NAI will make available up to 500,000 impressions on the NAI Internet Sites      and ten percent (10%) of the impressions available on NAI's Upgrade/Update      site for advertising materials to promote Beyond.com.

                                    1    16

                                EXHIBIT E

                           DISTRIBUTION ADDENDUM

  WHEREAS, NAI owns and/or markets certain computer software and hardware products set forth on Exhibit A (Products).

  WHEREAS, Co-Host is an independent reseller of computer products to end users ordering products through web sites on the Internet operated by Co-Host.

  WHEREAS, Co-Host distributes electronic copies of the Products pursuant to the ESD Agreement.

  WHEREAS, Co-Host desires to distribute the Products and NAI desires to make the Products available to Co-Host for further distribution.

  THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, NAI and Co-Host enter into the following additional agreements regarding the Products:

1.   APPOINTMENT. NAI appoints Co-Host as a non-exclusive distributor of the      Products to end users ordering the Products from the Destination or the      Co-Host Site, and Co-Host accepts this appointment. Co-Host shall      distribute the Products, as an independent reseller, at its own risk and      expense and subject to any such prices, contractual terms and conditions as      Co-Host may from time to time determine. Nothing in this Agreement shall      prohibit Co-Host from distributing competing products in the Territory. The      Territory as that term is used herein shall mean all countries in the      world except countries to which export or re-export of any Product, or the      direct products of any Product is prohibited by United States law without      first obtaining the permission of the United States Office of Export      Administration or its successor. Co-Host shall not have the right to assign      or otherwise transfer this Agreement or any rights herein granted to any      other person or entity, except by operation of law or in connection with      the sale of all of its assets, or the acquisition of the Co-Host by a third      party. Any such attempted assignment shall be void and the Agreement shall      remain in effect.

2.   DISTRIBUTION. Co-Host has the right to market and distribute the Products      subject to the license agreement that accompanies such Product. Co-Host may





  not engage in the rental of any of the Products. Co-Host shall not in any      event remove from or obscure upon any Products any labels placed thereon by      NAI containing statements of restrictions upon distribution, without the      prior written consent of NAI. NAI reserves the right in its sole discretion      and without liability to Co-Host to add additional Products, change the      prices for the Products pursuant to Section 5, modify the Products, change      the level of NAI's support for the Products and discontinue the      availability of any Product. Any addition or deletion from the list of      Products will be indicated by NAI's revision to the NAI price list, and NAI      will use reasonable efforts to provide Co-Host with thirty (30) days notice      prior to the effective date of such changes indicated on the NAI price      list.

                                    2    17

3.   MARKETING.

  (a)  General. Co-Host will use commercially reasonable efforts to market           the Products it orders to the best of its ability, and to that end           will (i) conduct marketing activities authorized by NAI, (ii) support           special promotions initiated by NAI, and (iii) maintain a sound           financial condition. Co-Host will conduct its business in a manner           that reflects favorably upon the Products and NAI.

  (b)  Advertising; Use of Trademarks. Co-Host may advertise and promote the           Products in a commercially reasonable manner and, subject to the           provisions of Section 5 of the Co-Hosting Agreement, may use           trademarks, service marks and trade names provided by NAI in           connection therewith, provided that all such promotions and           advertising will be consistent with NAI's general quality standards           and the provisions of Section 5 of the Co-Hosting Agreement. Unless           otherwise agreed upon in writing by NAI, Co-Host will submit each           advertisement and promotion to NAI for trademark review and approval           prior to initial release, which approval will not be unreasonably           delayed or withheld. All such usage which was not expressly approved           by NAI must be terminated immediately upon receipt of notice from NAI           to that effect.

  (c)  Trademarks Rights. NAI owns any and all trademarks, trade names, and           service marks for the Products (as noted in Section 5 of the           Co-Hosting Agreement). Such trademarks, trade names, and service marks           shall include all product names, the names Network Associates,           logos, designs, and other designations or brands used by NAI in           connection with the Products. Co-Host acknowledges and agrees that NAI           is not granting to Co-Host any rights in any Product trademark, trade           name, or service mark in or outside of the Territory.

4.   INSPECTIONS, RECORDS AND REPORTING.

  (a)  Sales Out Reports. Co-Host will provide to NAI within ten (10) days           after the end of each calendar month, a computer media data file in           the format established by NAI showing, for such month, Co-Host's total           sales, by customer and by Product from each location. If requested by           NAI, Co-Host shall provide such reports with respect to weekly periods           or bi-weekly periods prior to the end of the calendar month in which           such period occurs.

  (b)  Inventory Level Reports. Co-Host will provide to NAI on Monday of each           week, a computer media data file in the format established by NAI           showing Co-Host's current inventory levels of each Product (including           items in transit), and weekly runrate snapshots and the other           information reasonably requested by NAI.

  (c)  Records. For three (3) years after each calendar quarter during the           term of this Agreement, Co-Host will keep, at Co-Host's office, full           and accurate books of account and copies of all documents and other           materials for such quarter relating to this Agreement and Co-Host's           records, accounts and contracts relating to the distribution of the           Products.

                                    3    18

  (d)  Audit. NAI may inspect the records described in Sections 4(c) upon           demand from time to time. In addition, Co-Host agrees to allow NAI's           independent auditors to audit and analyze appropriate accounting           records of Co-Host from time to time (but not more than one every six           (6) months) to ensure compliance with all terms of this Agreement. Any           such audit shall be permitted by Co-Host within fifteen (15) days of           Co-Host's receipt of NAI's written request to audit, during normal           business hours. The cost of such an audit will be borne by NAI unless           a material discrepancy indicating inadequate record keeping or that           additional fees due to NAI are discovered, in which case the cost of           the audit shall be borne by Co-Host. A discrepancy shall be deemed           material if it involves payment or adjustment of more than five           percent of the amount reported in favor of NAI. Audits and inspections           shall not interfere unreasonably with Co-Host's business activities.]

5.   ORDERING AND PAYMENT.

  (a)  NAI's Acceptance. Any order for delivery of physical product placed





       with NAI is subject to acceptance by NAI within ten (10) days           following receipt by NAI. NAI may decline any order, in whole or in           part, and unless NAI accepts an order in writing, the order is           considered accepted only to the extent it is fulfilled.] The terms and           conditions of this Agreement and of the applicable NAI invoice or           confirmation will apply to each order accepted or shipped by NAI.           Electronic confirmation from an authorized NAI email address shall           have the same effect as a signed written confirmation. The provisions           of Co-Host's form of purchase order or other business forms will not           apply to any order notwithstanding NAI's acknowledgment or acceptance           of such order.

  (b)  Price to Co-Host. NAI will inform Co-Host as to its current suggested           retail price of the Products and standard discount or pricing granted           to NAI's traditional product distributors. During the term of this           Agreement, Co-Host will be invoiced on the basis of the discounts set           forth on Exhibit A of this Distribution Addendum. Discounts off           suggested retail price (SRP) for standard NAI Products shall exclude           tradeups, upgrade SKUs and special promotions, unless otherwise           indicated. NAI may change its SRP from time to time upon written           notice to Co-Host, which may take the form of a revised price list,           and NAI may notify Co-Host of a different discount from SRP in the           event NAI offers special promotional SRPs or Product prices in NAI's           discretion.

  (c)  Price Increase. If NAI increases its suggested retail price for any           Product (a product upgrade with a different part number will not be           the same Product) and there is a resulting increase in the price of           Products to Co-Host, NAI will give Co-Host thirty (30) days advance           notice of the effective date of any such increase and:

       (i)  NAI will honor the old price for any shipments of such Product                already in transit to Co-Host;

                                    4    19

       (ii) All additional orders following such thirty (30) day period will                be shipped at the new price;

      (iii) NAI has orders for such Product from Co-Host already booked into                NAI's order entry system at the time of such price increase or if                Co-Host orders additional Products during such thirty (30) day                period, then the price increase will not apply to that portion of                such orders which call for shipments of not more than the monthly                average quantity of such Products shipped to Co-Host in the three                month period preceding the date of the increase; and

       (iv) Orders for such Product in NAI's order entry system in excess of                the quantity specified in (iii) above will be shipped at the new                price unless they are canceled by Co-Host by written notice to                NAI, provided that such notice is received by NAI no later than                fifteen (15) days prior to the date of shipment specified in such                order.

  (d)  Price Decrease. If NAI decreases its suggested retail price for any           Product (a product upgrade with a different part number will not be           the same Product), the decrease will apply to all units of such           Product in Co-Host's inventory and orders in transit to Co-Host from           NAI that are in an unopened, salable condition as of the effective           date of the decrease, provided that such Products had been shipped to           Co-Host no more than ninety (90) days prior to such effective date. To           be eligible for such price protection, Co-Host must deliver to NAI           written evidence, signed by Co-Host, of an inventory of such Products           showing the number and location of each unit of Product for which           Co-Host claims price protection eligibility hereunder within thirty           (30) days of receiving notice of such price decreases. Such reduction           will constitute a credit on Co-Host's account for future orders from           NAI under this Agreement (unless the Agreement has terminated or           expired in which case such reduction will be refunded to the extent           that Co-Host does not owe NAI money) in an amount equal to the           difference between the net invoice price at which each such unit in           inventory was provided to Co-Host and the current price then           applicable for shipments of such Product to Co-Host hereunder.

  (e)  TAXES.

       (i)  All amounts payable by Co-Host to NAI under this Agreement are                exclusive of any tax, withholding tax, levy, or similar                governmental charge that may be assessed by any jurisdiction in                or outside the Territory except income and similar taxes levied                on and payable by NAI. Such taxes, withholding taxes, levies, and                governmental charges (collectively Taxes) include Taxes based                on sales, use, excise, import or export values/fees, value-added,                income, revenue, net worth, or may be the result of the delivery,                possession, or use of the Products, the execution or performance                of this Agreement or otherwise. Should any Taxes be due, Co-Host                agrees to pay such Taxes and indemnify NAI for any claim for

                                    5    20





            such Taxes demanded. Co-Host shall make no deduction from any                amounts owed to NAI for any Taxes. Co-Host covenants to NAI that                all Products distributed hereunder will be in the ordinary course                of Co-Host's business, and Co-Host agrees to provide NAI with                appropriate information and/or documentation satisfactory to the                applicable taxing authorities to substantiate any claim of                exemption from any Taxes.

       (ii) For all Taxes paid by Co-Host, Co-Host shall provide to NAI                within forty-five (45) days after the end of any quarter, a                certificate of tax payment documenting the payment and amount of                the Taxes paid during the preceding quarter.

6.   SHIPMENT, RISK OF LOSS AND DELIVERY.

  (a)  Shipment. All the physical Products will be shipped by NAI, F.C.A.           (Incoterms 1990) place of shipment. Co-Host is responsible for paying           all freight charges, transportation expenses, insurance charges, all           applicable taxes, duties, import and export fees and similar charges           associated with the delivery of the Products to Co-Host. All shipments           will be made using either any carrier approved by both Co-Host and           NAI. Co-Host will not without NAI's prior written consent, submit any           order calling for the shipment of a Product to more than a single           redistribution site.

  (b)  Risk of Loss. All risk of loss of or damage to the Products will pass           to Co-Host upon delivery by NAI to the common carrier. Co-Host will           bear the risk of loss or damage in transit.

  (c)  Partial Delivery. Unless Co-Host clearly advises NAI to the contrary           in writing NAI, may make partial shipments on account of Co-Host's           orders which shall, to be separately invoiced and paid for when due.

7.   RETURNS.

  (a)  Returned Merchandise Authorization. Notwithstanding anything to the           contrary herein contained, NAI will not issue credit to nor be           obligated to accept returns for any reason for any physical Products           unless NAI shall have previously issued a written Return Merchandise           Authorization (RMA). The preceding sentence governs whether or not           NAI is obligated to issue an RMA under this Agreement or applicable           law. RMAs must be in writing, signed by NAI and only authorize the           return of Products in good resalable conditions unless expressly           provided otherwise herein. If damaged goods are received pursuant to           an RMA, no credit shall be given by NAI with respect to such damaged           goods unless the RMA indicates otherwise. Co-Host shall be responsible           for all freight charges for goods returned pursuant to an RMA, unless           otherwise indicated herein or in the RMA.

  (b)  Customer Returns and Bad Box. Subject to Section 7 (a), Co-Host may,           during the term of this Agreement, obtain a credit against current or           future invoices from

                                    6    21

       NAI, for Products which have been returned by end users as defective,           or pursuant to the warranty stated in NAI's end user license. Such           credit will be in an amount equal to the original invoice price less           any discounts or other credits previously received. Co-Host shall also           have the ability to return for credit Products which have boxes that           are or become damaged, unless such damage was caused by Co-Host. An           offsetting purchase order must be placed for all bad box returns. In           the event of claims by end users of incomplete Product, NAI, at its           discretion, may supply to Co-Host, at no charge, any and all missing           materials which are supposed to be provided with the current release           of such Products or replace the entire Products in such situation.

  (c)  Discontinued Products. Co-Host may, during the term of this Agreement,           obtain a credit for the price paid by Co-Host to be applied against           current or future invoices, for all versions of Products shipped by           NAI within the previous ninety (90) days that NAI discontinues or           which are removed from NAI's current retail price list. Such credit           will be equal to the price paid by Co-Host for such obsolete Products,           less discounts received under Section 5 of this Agreements. All such           discontinued Products will be counted and inspected at the Inspection           Site by NAI's employee, and upon NAI's acceptance thereof (which will           be a condition of Co-Host's eligibility for a credit hereunder) such           Products will be promptly and completely destroyed or, if requested by           NAI, such Products or any portion thereof will be returned to NAI as           it directs. No Product shall be deemed discontinued if a later version           of the Product is still being offered by NAI and end users may obtain           the current version of such Product from NAI electronically at no           additional charge.

  (d)  Freight. Co-Host will pay all costs (including freight) associated           with the return of the Products to NAI and back to Co-Host as provided           herein, except that NAI will be responsible for all freight costs           associated with (i) the return of Products under Section 7(b), (ii)           the return of any discontinued or obsolete Products under Section           7(c), and (iii) the return of other Product updates agreed upon by NAI           and Co-Host.

8.   GENERAL.





  (a)  Co-Host agrees that it will not, directly or indirectly, export or           transmit the Product and technical data (or any part thereof) or any           process or service that is the direct product of the software and           documentation, to any group S or Z country specified in Supplement No.           1 of Section 770 of the Export Administration Regulations or to any           other country to which such export or transmission is restricted by           such regulation or statute, without the prior written consent, if           required, of the Office of Export Administration of the U.S.           Department of Commerce, or such other governmental entity as may have           jurisdiction over such export or transmission.

                                    7    22

  (b)  Co-Host acknowledges that some NAI Products hereto contain encryption           and some are export restricted (the Restricted Software) by the U.S.           Department of Commerce's Bureau of Export Administration (BXA).           Co-Host further acknowledges that for this reason, the export of such           items may subject the Co-Host or its executives to fines and/or other           severe penalties. Unless all required permits and/or approvals have           been obtained, Co-Host shall not export or re-export the Restricted           Software outside of the United States, whether directly or indirectly,           and will not cause, approve or otherwise facilitate others such as           agents, subsequent purchasers, licensees or any other third parties in           doing so. The parties agree to cooperate with each other with respect           to any application for any required licenses and approvals. However,           Co-Host acknowledges it is their ultimate responsibility to comply           with all export laws with respect to the Restricted Software and that           NAI has no further responsibility after the initial sale to the           Co-Host within the United States.

                                    8    23

                        EXHIBIT A TO EXHIBIT E

1.   PRODUCTS COVERED (RECITALS). Product(s) provided to Co-Host shall be all NAI Goods as that term is defined in Section 1 (c) of the Agreement and no other products.

2.   PRICES AND DISCOUNTS (SECTION 5(a)).

The standard discount or pricing granted to NAI's traditional Product distributors increased by four percentage points. 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?

SOLUTION: 17133

PROBLEM: Exhibit 10.18

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.

STRATEGIC ALLIANCE AGREEMENT

This Strategic Alliance Agreement (this Agreement), effective as of December 10, 2015 (the Effective Date), is by and between Allscripts Healthcare, LLC, a North Carolina limited liability company (Allscripts) on behalf of itself and its Affiliates and Phreesia, Inc., a Delaware corporation (the Company or Phreesia). Allscripts and the Company are sometimes referred to herein as a Party and collectively as the Parties.

RECITALS

WHEREAS, Allscripts is a leading provider of clinical and revenue cycle software, connectivity and information solutions for physicians, including its practice management solutions;

WHEREAS, the Company provides Merchant Processing Services, Eligibility and Benefit Services, and Patient Intake Management Offerings within the healthcare industry;

WHEREAS, the Company has developed, licenses, and makes available (as applicable) certain software and services described herein; and

WHEREAS, Allscripts desires to obtain the right to market, sublicense, and make available such software and services and cause the Company to provide such software and services, either to Allscripts or to third parties, on the terms and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein contained, the Parties agree as follows:

1. Definitions. For purposes of this Agreement, the following terms have the meanings ascribed thereto in this Section 1:

Affiliate means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term control (including the terms controlled by and under common control with) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Allscripts' Affiliates may exercise Allscripts' rights and fulfill its related obligations under this Agreement, provided that Allscripts shall be responsible for any breach of such obligations by its Affiliates to the same extent as if Allscripts was the breaching party.

Allscripts Customer means a customer that has contracted for or receiving any of Allscripts' products or services.

Allscripts Practice Management means the practice management system currently marketed and sold by Allscripts as Allscripts Practice Management (as the same may be renamed, enhanced or expanded from time to time)

Bank Rules means the Bank Card Merchant Rules and Regulations provided to Sublicensed Customer in writing, as amended from time to time, which are incorporated into this Agreement by reference. 1





Change of Control means any of the following: (a) any merger, reorganization, share exchange, consolidation, or other business combination involving the Company and its subsidiaries, other than (i) any acquisition or other similar transaction in which the Company acquires the assets or the securities of another Person and the Company does not issue capital stock of the Company representing more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of the Company, or (ii) any merger or similar transaction effected solely to change the domicile of the Company or any of its subsidiaries; (b) any acquisition by any Person as a result of which such Person (or any group of which such Person is a member) becomes a beneficial owner of more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of the Company in any single transaction or a series of related transactions; (c) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition of all or substantially all of the assets of the Company and its subsidiaries in any single transaction or a series of related transactions; or (d) any exclusive license of all or substantially all of the intellectual property of the Company and its subsidiaries, in any single transaction or a series of related transactions. For purposes of this definition, the term beneficial owner has the meaning ascribed to such term in Rules 13d-3 and 13d-5 under the U.S. Securities Exchange Act of 1934, as amended, and the term group means two (2) or more Persons acting as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of the applicable securities referred to herein.

Claim means any claim, action, suit, proceeding, damages, costs, expenses and other liabilities, including reasonable attorneys' fees and court costs.

Clinician means each healthcare professional contracted under a customer's license or service agreement and any healthcare professional not contracted under a customer's license or service agreement for which such customer subsequently pays a clinician fee. Healthcare professionals are only Clinicians (1) during the periods in which they are contracted under a license or service agreement or (2) for healthcare professionals not contracted under a customer's license or service agreement, solely during the periods for which a Customer pays a clinician fee for such healthcare professional. For avoidance of doubt, authorized end users of the Subscription Software Services are both Clinicians and their administrative and other front and back office personnel. For the further avoidance of doubt, there will be no further license fees applicable to the administrative or other front and back office personnel.

Company Acquiror means any Person that acquires the Company in connection with a Change of Control (including, without limitation, a Competing Provider) and includes each Affiliate of such Person that is not controlled by the Company. For purposes of this definition, the term controlled by means the Company has the direct or indirect power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise.

Competing Provider means any electronic health record, revenue cycle management, or health information exchange information technology vendor whose products or services are directly competitive with a material portion of Allscripts business.

Confidential Information means non-public information of a Disclosing Party, [***].

Controlled Technology means any software, documentation, technology, or other technical data, or any products that include or use any of the foregoing, of which the export, re-export, or release to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval under any Law, including the U.S. Export Administration Act and its associated regulations.

Customer Agreement means a written agreement between Allscripts (or an Allscripts Reseller or Partnering Organization as permitted herein) and an Allscripts Customer pursuant to which Allscripts resells any Installed Software or any Subscription Software Services or orders Merchant Processing Services from Company on behalf of an Allscripts Customer in accordance with this Agreement. 2





Data means all data, information, and other content (regardless of whether de-identified) of any type and in any format, medium, or form, whether audio, visual, digital, screen, GUI, or other, that is input, submitted, uploaded to, placed into or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of Allscripts (or any of its licensors or Affiliates) or any Sublicensed Customer through the Subscription Software Services, including any and all data, analyses, and other information and materials resulting from any use of the Subscription Software Services by or on behalf of Allscripts (or any of its licensors or Affiliates) or a Sublicensed Customer under this Agreement.

Developer Agreement means the Allscripts Developer Program Agreement previously entered into between Company and Allscripts with an effective date of July 1, 2014.

Documentation means all user manuals, operating manuals, technical manuals, and any other instructions, specifications, documents, or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical specifications, or components, features, or requirements of any of the Installed Software or any of the Subscription Software Services or Merchant Processing Services, together with all revisions to such documentation delivered by or on behalf of the Company and as updated from time to time by the Company.

E&B Transaction means an Electronic Data Interchange (EDI) Health Care Eligibility/Benefit Inquiry (270 transaction) and the retrieval of an EDI Health Care Eligibility/Benefit Response (271 transaction), with a single E&B Transaction consisting of both the 270 transaction and the 271 transaction. [***].

Eligibility and Benefit Services means the Company's subscription-based software services that submits Electronic Data Interchange (EDI) Health Care Eligibility/Benefit Inquiries (270 transactions) and the retrieval of the EDI Health Care Eligibility/Benefit Response (271 transactions) to inquire about the health care eligibility and benefits associated for patients through POS Dashboard or the Eligibility UI and the Eligibility Interface. The Eligibility and Benefit Services, the Eligibility UI and the Eligibility Interface are further described on Exhibit A attached hereto.

Error means [***].

Harmful Code means (a) any virus, Trojan horse, worm, backdoor, or other software or hardware devices, the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) any time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise prevent, restrict, or impede Allscripts' or any Sublicensed Customer's use of such software or device.

HITECH means the Health Information Technology for Economic and Clinical Health Act of 2009, as amended.

Implementation Services means services related to the initial delivery, configuration, and pre-acceptance usage of the Subscription Software Services or Merchant Processing Services described in Exhibit C. 3





Installed Software means the Company's Integration Client configured to interoperate only with Allscripts products that is installed on a Sublicensed Customer's computer systems, and including all enhancements and other Updates thereto and all copies of the foregoing permitted hereunder.

Intellectual Property means [***].

Law means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

Legacy Customers means those Company customers listed on Exhibit H.

Loss means all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.

Marks means, with respect to a Party, such Party's trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers, corporate names, meta-tags, and universal resource locators, and any applications, registrations, and renewals thereof.

Member Bank shall mean a member of VISA, MasterCard and/or any other networks, as applicable, that provides sponsorship services in connection with this Agreement. As of the Effective Date, the Member Bank shall be Fifth Third Bank, an Ohio banking corporation.

Merchant Agreement means the Merchant Services Agreement the form of which is attached hereto as Exhibit J to be entered into between Company and each Sublicensed Customer that purchases any Merchant Processing Services (except in connection with a sale of PIMS directly or indirectly by Company). Company may update the Merchant Agreement from time-to-time to incorporate such future revisions as required or requested by the Member Bank provided that Company also makes those revisions to agreements with Company's other merchant processing services customers; and further provided that the Merchant Agreement's terms and conditions shall not be less favorable than those that the Company typically offers to customers similar to the proposed Sublicensed Customers.

Merchant Application means the merchant application the form of which is attached hereto as Exhibit K, that must be completed by a proposed Sublicensed Customer that intends to purchase any Merchant Processing Services and which is accepted by Company prior to Sublicensed Customer product activation. Company may update the Merchant Application from time-to-time to incorporate such future revisions as required or requested by the Member Bank , provided that Company also makes those revisions to merchant applications with Company's other merchant processing services customers; and further provided that the Merchant Application's terms and conditions shall not be less favorable than those that the Company typically offers to customers similar to the proposed Sublicensed Customers.

Merchant Processing Services means the Company's services that authorize and settle payment transactions directly or indirectly through Member Banks for customers through (1) the POS Dashboard; (2) the default Phreesia Gateway card processing platform for any of Allscripts other embedded payment products; (3) a Third Party Gateway for transactions received from or posted to an Allscripts service or product for customers who want to use a separate financial institution for back-end processing; and (4) Phreesia Patient Intake Management Offering. The Merchant Processing Services are subject to the terms and conditions of the Merchant Agreement, the Operating Regulations and applicable Law. The Merchant Processing Services are further described on Exhibit A attached hereto. Merchant Processing Services may be provided by Company in conjunction with the Subscription Software Services but are not, for purposes of this Agreement, deemed Subscription Software Services. 4





Merchant Processing Services Customer means an Allscripts Customer excluding Legacy Customers that contracts with the Company for and receives the Company's Merchant Processing Services. For the sake of clarity, a Merchant Processing Services Customer (i) may also be a Sublicensed Customer or (ii) may purchase Merchant Processing Services in connection with its purchase of PIMS from the Company.

Open Source License means an open source license applicable to Open Source Software.

Open Source Software means any open source software program, or portion thereof, that is licensed under an Open Source License that requires as a condition of use, modification, and/or distribution of the software subject to the license, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), and the Apache License).

Operating Regulations means the by-laws, operating regulations and/or all other rules (including, without limitation, Bank Rules), guidelines, policies and procedures of VISA, MasterCard, Discover, and/or Other Networks, and all other applicable rules, regulations and requirements of Member Bank, banks, and financial institutions which govern or affect any Merchant Processing Services provided under a Merchant Processing Agreement, and all state and federal laws, rules and regulations which govern or otherwise affect the activities of providers of Merchant Processing Services, including, but not limited to, those of the National Automated Clearing House Association (NACHA) and the Federal Trade Commission (FTC), as any or all of the foregoing may be amended and in effect from time to time.

Partnering Organization means a hospital, health plan, provider group, provider-hospital organization, independent practice association (IPA), accountable care organization (ACO), health information organization (HIO), Comprehensive Primary Care Initiative group (CPC), billing service provider, or integrated healthcare delivery system that provides management services and administrative systems.

Payerpath means Allscript's patient payment and claims solution currently marketed and sold by Allscripts as Payerpath (as the same may be renamed, enhanced or expanded from time to time).

Person means any natural person, corporation, limited liability company, general partnership, limited partnership, trust, proprietorship, joint venture, business organization, or government, political subdivision, agency, or instrumentality.

Phreesia Patient Intake Management Offering or PIMS means Phreesia's offering with and only with those features and functions as are generally available to Allscripts Customers on the Effective Date. PIMS features are summarized on Exhibit A, but that summary is qualified in its entirety by reference to PIMS' actual features that are generally available to Allscripts Customers on the Effective Date. [***].

POS Dashboard means the Company's web portal Point of Service (POS) Dashboard that may be used to process credit and debit card payment transactions (as the same may be renamed, enhanced or expanded from time to time). The POS Dashboard is further described on Exhibit A attached hereto. 5





Purchase Order means a purchase order or other ordering document signed and issued by Allscripts to order Subscriptions to be resold and distributed or made available to a Sublicensed Customer, which specifies, at a minimum, (a) the date the applicable Customer Agreement was executed; (b) the name and address of the Sublicensed Customer; and (c) the Installed Software and Subscription Software Services licenses, Merchant Processing Services and Services being ordered, and further establishes that the Installed Software and Subscription Software Services (and associated Documentation) are governed by the Customer Agreement.

Representatives means a Party's Affiliates, and each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, and third-party advisors.

Services means, collectively, the Implementation Services as described in Exhibit C and the Support Services as described in Section 12.1(b).

Sublicensed Customer means an Allscripts Customer that has purchased a Subscription from Allscripts or its Affiliates or that has entered into a Merchant Agreement with Company (except in connection with a sale of PIMS directly or indirectly by Company).

Subscription or subscription shall mean the right of a Sublicensed Customer to access and use the Subscription Software Services as more fully set forth in this Agreement.

Subscription Software Services means the Company's subscription-based software services consisting of the Eligibility and Benefit Services and/or POS Dashboard (as each may be renamed, enhanced or expanded from time to time), including any Updates thereto. Subscription Software Services contains functions and features that enable Sublicensed Customers to authorize and settle payment transactions directly or indirectly through Member Banks, but in order for such functions and features to be operational, Sublicensed Customers must obtain Merchant Processing Services from Phreesia or similar services from a third party through Phreesia's Third Party Gateway. Notwithstanding anything to the contrary herein, Subscription Software Services do not include other Company products or services including, without limitation, the Phreesia Patient Intake Management Offering.

Territory means [***].

Update means any revision, modification, upgrade, or new feature, functionality, module, or release of the Installed Software, Subscription Software Services or Merchant Processing Services, and any patch, bug fix, workaround, or Error correction to the Installed Software or Subscription Software Services (whether created specifically for Allscripts or released by the Company), that Company is required to provide under this Agreement or that Company generally makes available at no additional charge to the Company's other eligibility and benefit services and point of service dashboard customers and licensees. Updates may be customer facing (i.e. updates that are directly displayed to the customer such as new features, etc.) or non- customer facing (such as bug fixes or workarounds that are not directly displayed to the customer).

2. Appointment as Reseller.

2.1 Appointment. The Company hereby [***]. Allscripts may also disclose Company's pricing information relating to its Merchant Processing Services and facilitate procurement of Merchant Processing Services on behalf of Sublicensed Customers, including, without limitation by references to such pricing information and Merchant Processing Services in Customer Agreements. 6





2.2 Customer Agreements.

(a) Subscriptions. Allscripts and its Affiliates may sell Subscriptions for terms no less than one year and no greater than four (4) years on a subscription basis to Persons who subsequently execute a Customer Agreement, provided that Allscripts may enter into Customer Agreements with terms longer than four (4) years with large organizations, provided that Phreesia consents in each instance in writing in advance, which consent will not be unreasonably withheld.

(b) Customer Agreements. Each Customer Agreement will contain terms, in all material respects, no less protective of the Company and its licensors than the applicable terms and conditions related to Allscripts' applicable products and services. Each Customer Agreement shall, at a minimum, restrict Customers from redistributing, reverse engineering, reverse compiling, or disassembling the Installed Software and the Subscription Software Services. Allscripts will use commercially reasonable efforts to enforce the terms of its Customer Agreement that protect Company's Intellectual Property at Allscripts sole cost and expense.

2.3 Merchant Agreements; Pre-approval. All proposed Sublicensed Customers who wish to purchase Merchant Processing Services must complete a Merchant Application, execute a Merchant Agreement and be Pre-approved by the Company. Pre-approved shall mean that the Company has determined based on a proposed Customer's Merchant Application that the proposed Customer meets OFAC and Member Bank criteria and the Company's credit standards (collectively, the Criteria). Rejection shall mean the Company has not Pre-approved the proposed Merchant Processing Services Customer. [***]. Allscripts shall not represent to any prospective Sublicensed Customer that a Merchant Application will be approved. Company may terminate any Merchant Agreement pursuant to the terms of such Merchant Agreement. All Merchant Processing Services shall be marketed under Company's Marks. For avoidance of doubt, Allscripts may market the Subscription Software Services, including without limitation, the electronic cashiering features and functionality of the Subscription Software Services under the Allscripts name.

2.4 Third Parties. Allscripts will not authorize or allow any value added reseller, distributor, integrator, OEM partner, or other third party to market, demonstrate, resell, sublicense, or otherwise distribute or make available the Installed Software, Documentation or Subscription Software Services, or Merchant Processing Services except that Allscripts is permitted to (a) sign Customer Agreements with Sublicensed Customers who are Partnering Organizations who, in turn, distribute or make available the Installed Software, Documentation or Subscription Software Services to (or facilitate the procurement of Merchant Processing Services for) their respective medical staffs, provider participants, or members as permitted under applicable Law, so long as each such medical staffs, provider participants, and members are bound by the terms and conditions of the applicable Customer Agreement; and (b) exercise its rights under this Section 2 through Company approved value added resellers appointed by Allscripts from time to time (Allscripts Resellers); provided, however, that each Allscripts Reseller must enter into an agreement with Allscripts that is at least as protective of the Company and the Installed Software, Documentation, and Subscription Software Services as this Agreement. Allscripts will use commercially reasonable efforts to enforce the terms of Allscripts Resellers' agreements that protect Company's Intellectual Property. For avoidance of doubt, Allscripts may not delegate to Allscripts Resellers any rights that it does not have under this Agreement.

2.5 Affiliates. To the extent that Allscripts' Affiliates, Partnering Organizations, and Allscripts Resellers utilize the rights granted hereunder, Allscripts will require such parties to comply with the restrictions on such rights set forth in this Agreement, and any non-compliance with such restrictions by such parties shall be deemed a breach of such restrictions by Allscripts, provided that third party Partnering Organizations and Allscripts Resellers shall not be required to comply with the restrictions set forth in Section 5 [***]. 7





2.6 No Other Rights. Except as specifically set forth in this Agreement, no other rights or entitlements are granted by the Company to Allscripts with respect to the Installed Software, Documentation, Subscription Software Services, Merchant Processing Services or Services. All rights not expressly granted hereunder are reserved by the Company and/or its third party licensors.

2.7 Acknowledgments.

(a) The Parties acknowledge and agree that this Agreement is non-exclusive (except as set forth in Section 5) and imposes no limitations upon either Party's relationships with other parties or on either Party's research, development, production, marketing, licensing, reselling, or sales of other products or services, whether or not similar to any of the Installed Software or the Subscription Software Services or Merchant Processing Services or any Allscripts products or services, so long as such relationships or activities do not violate any express term of this Agreement or utilize any Confidential Information of the other Party in violation of this Agreement.

(b) [***]. In no event will anything in this Agreement be construed as an obligation on Allscripts' part to (i) incorporate the Installed Software or Documentation into Allscripts products or services or (ii) market, promote, distribute or make available the Installed Software or Subscription Software Services or Merchant Processing Services, [***].

(c) Notwithstanding [***] Allscripts or its Affiliates may, in its sole discretion, develop, market, provide, offer, sell or resell, directly, or indirectly through its resellers, Other Services (as defined in Section 5) to interface with Allscripts Payerpath or Allscripts Practice Management [***]. In no event shall Allscripts directly or indirectly utilize any of the Company's Installed Software, Subscription Software Services or Confidential Information in connection with any development activities described above in this Section 2.7(c).

2.8 Marketing Materials. The Company agrees to work with Allscripts to develop the initial set of marketing communications materials related to the Subscription Software Services or Merchant Processing Services (Company Marketing Materials). At the time such Company Marketing Materials are first distributed, each party must consent to their content, [***]. Allscripts must replicate all Company copyright notices on all copies of the Company Marketing Materials (and all customized versions thereof).

2.9 Forecast. Allscripts will provide Company with a non-binding [***] sales forecast for Allscripts' sales of eligibility and payment processing solutions during [***] within [***] of the Effective Date.

3. Services. Exhibit G sets forth the Amended and Restated Developer Program Agreement (the Restated Developer Agreement) in place between Allscripts and Company, which replaces in its entirety the Developer Agreement. The Restated Developer Agreement is hereby incorporated into this Agreement as if fully set forth herein and made part hereof.

3.1 Development and Integration.

(a) Within [***] of the Effective Date, Allscripts and the Company will reasonably cooperate to create a mutually satisfactory, sufficiently detailed, written specification (the Integration Specification) that describes the desired level of functional integration between Allscripts Payerpath and Allscripts Practice Management and the Subscription Software Services, along with the technical details and delivery dates (preliminarily defined in Exhibit B) related to achieving the functional integration as set forth in Exhibit G. 8





(b) The Company and Allscripts will each commit appropriate resources needed to complete their respective responsibilities with respect to the functional integration indicated by the Integration Specification as further described in Exhibits A and B hereto. The Company and Allscripts will each have the development and integration responsibilities assigned to it and described in the Integration Specification and will each be responsible for their respective costs associated with such responsibilities and in performing all other tasks assigned to it under the Integration Specifications. The Company and Allscripts will each use commercially reasonable efforts to complete their respective responsibilities in the Integration Specification within the time frames set forth in Exhibit B.

(c) Beta Testing. The parties anticipate that there will be up to [***] beta test sites testing the Subscription Software Services. Regardless of when the testing began or begins, Allscripts will be the primary deployment resource for each of the beta test sites as well as the first [***] implementations of the Subscription Software Services, as applicable, for Allscripts' Sublicensed Customers.

3.2 Implementation Services. Allscripts will be responsible for providing Implementation Services for the Installed Software and the Subscription Software Services (but not implementation for the Phreesia Patient Intake Management Offering, which shall be Phreesia's responsibility) distributed or made available hereunder. At Allscripts' request and direction, on a per-Sublicensed Customer basis, the Company will provide such Implementation Services directly to such Sublicensed Customer or through Allscripts in exchange for fees set forth in Exhibit C.

3.3 Provision and Quality of Services. To the extent the Company is required to provide Services under this Agreement, the Company will provide those Services [***].

3.4 Personnel. [***]. The Parties agree to use their reasonable efforts to promptly resolve any good faith complaints regarding any of the Company's personnel, or otherwise concerning the value or efficacy of any Services performed by or on behalf of the Company.

3.5 Books and Records. As applicable under the Omnibus Reconciliation Act of 1980, until the expiration of four (4) years after the furnishing of Services pursuant to this Agreement, the Company will, upon receipt of written request, and if then requested to make such information available under the then-existing Law, make available to the Secretary of the U.S. Department of Health and Human Services, the Comptroller General of the U.S. Department of Secretary of Health and Human Services, or any of their fully-authorized representatives, the books, documents, and/or records of the Company that are necessary to verify the nature and extent of costs associated therewith. The record keeping and disclosure provisions of this Section 3.4 will apply to all Services provided by the Company, but will be applicable only if the Company receives remuneration in the amount of $10,000 or more, with regard to the Services performed in relation to a single Sublicensed Customer.

4. Order and Acceptance.

4.1 Order Process. In order to activate Merchant Processing Services for a Merchant Processing Services Customer, the proposed Merchant Processing Services Customer must submit (directly or indirectly through Allscripts) a completed Merchant Application and executed Merchant Agreement to the Company within [***] from the execution by such Merchant Processing Services Customer of a Customer Agreement. Within [***] of the modification or termination (other than sublicenses that expire at the end of a term previously specified in a Purchase Order) of any Customer Agreement, Allscripts will provide the Company with written notice of such modification or termination. This Section 4.1 shall not be applicable to situations where the Allscripts Customer is purchasing Merchant Processing Services in connection with its purchase of PIMS. 9





4.2 Distribution; Commencement of Subscription Software Services. [***]. Subject to the terms of this Agreement, the terms and conditions relating to the provision of Merchant Processing Services to Sublicensed Customers, including but not limited to commencement thereof, shall be set forth in the Merchant Application and Merchant Agreement. [***].

4.3 Configuration and Acceptance.

(a) As part of the Implementation Services, the Company agrees to assist Allscripts in conducting configuration and acceptance testing of the Subscription Software Services, if and as requested or required by a Sublicensed Customer, in order to ensure that the Subscription Software Services are fully operable, meet all applicable specifications, and will function in accordance with the Documentation when properly installed and used for its intended purpose.

(b) In the event of final rejection by Allscripts or a Sublicensed Customer as a result of the Company's breach of this Agreement, including, without limitation, a breach of the Company's representations and warranties in Sections 21.1 and 21.3, if any payments hereunder have already been made by Allscripts to the Company regarding such Sublicensed Customer, and if Allscripts provides a refund to such Sublicensed Customer based on such Customer's rejection of the Subscription Software Services, then the Company will provide Allscripts with a refund of the applicable payment within [***].

5. [***].

6. FollowMyHealth. When Allscripts refers its FollowMyHealth customers to merchant processing service providers, it may include Phreesia among the providers referred. [***].

7. Contacts.

7.1 Relationship Contacts. Concurrently with the execution of this Agreement, each Party has designated an individual to serve as that Party's initial point of contact to facilitate communications between the Parties on all matters (e.g., marketing, maintenance and support, technical, customer satisfaction, sales pipeline) that may arise under this Agreement. The initial Allscripts relationship contact is [***] and the initial Company relationship contact is [***]. Each Party may change its respective relationship contact at any time upon written notice to the other Party.

7.2 Issues. In the event of any issues that may arise pursuant to this Agreement, the Parties' relationship contacts may confer to resolve such issues, it being understood that this will not preclude any Party from initiating dispute resolution proceedings pursuant to Section 28.9.

8. Licenses and Intellectual Property.

8.1 License Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts and its Affiliates a non- exclusive, royalty-free, irrevocable [***] non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid-up right and license under all of the Company's Intellectual Property to, throughout the Territory, access, use, reproduce, perform, display, modify, create derivative works of, transmit, demonstrate, test, operate, port, configure, distribute, and make available the Installed Software and Subscription Software Services solely for the purposes of:

(a) Allscripts' and its Affiliates' internal use of the Installed Software and Subscription Software Services as permitted hereunder, including with respect to its marketing, selling, development, service, and support activities under this Agreement, and including the training of Allscripts employees, contractors, and other authorized Representatives on the marketing, selling, planning, supporting, and use of the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services; 10





(b) the marketing, promoting, distributing, reselling, or provision of the Installed Software or the Subscription Software Services, directly or through Allscripts Resellers or Partnering Organizations, in accordance with the terms and conditions of this Agreement;

(c) enabling Allscripts products and services to interface or otherwise integrate, interact, or interoperate with the Installed Software and the Subscription Software Services , including performing any integration or interface development efforts with respect to the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services, or internally testing, evaluating, and performing validation and verification with respect to the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services (it being understood that the foregoing activities will not affect the Company's representations and warranties in Section 21);

(d) reselling Subscriptions (through multiple levels of sublicensees) to (i) Sublicensed Customers pursuant to Customer Agreements in accordance with this Agreement and (ii) Allscripts' Affiliates or to Allscripts Resellers or Partnering Organizations (subject to Sections 2.4 and 2.5) to carry out any of the purposes set forth in this Agreement;

(e) creating backups and other copies of the Installed Software solely to the extent necessary to perform its obligations hereunder in the ordinary course of business;

(f) managing, operating, and hosting (i) any Installed Software, (ii) the Allscripts products that will interface with the Installed Software or Subscription Software Services on behalf of Sublicensed Customers and (iii) authorizing its Sublicensed Customers, Allscripts Resellers or Partnering Organizations to do the same;

(g) generating, printing, copying, downloading, and storing all Data and other displays and output, as may result from any execution or other use of the Subscription Software Services and authorizing its Sublicensed Customers, Allscripts Resellers or Partnering Organizations to do the same; and

(h) all other purposes reasonably necessary to carry out any of the foregoing.

For the sake of clarity, the Subscription Software Services shall be hosted, managed and operated by Company.

8.2 Documentation and Marketing Materials. Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts a non-exclusive, royalty-free, irrevocable , non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid-up right and license under all of the Company's Intellectual Property to access, use, reproduce, perform, display, transmit, demonstrate, test, operate, port, configure, distribute, and make derivative works of the Documentation, Company Marketing Materials and Allscripts Marketing Materials, in whole or in part, throughout the Territory, for any purpose consistent with Section 8.1, [***].

8.3 Trademarks.

(a) Company Marks. 11





(i) Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts and its Affiliates a non-exclusive, royalty- free, irrevocable [***] non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid- up right and license under all of the Company's Intellectual Property to use the Company's brands, trademarks, product and service names, logos and slogans (the Company Marks), throughout the Territory, solely in connection with the marketing, selling, or provision of the Installed Software and the Subscription Software Services and Merchant Processing Services permitted hereunder or to otherwise fulfill the terms of this Agreement. [***].

(ii) Except as set forth in Section 11.3, Allscripts' use of the Company Marks will be in accordance with the Company's trademark use guidelines and instructions as set forth in Exhibit I. The Company will give Allscripts written notice of any changes to such specifications or guidelines, and will give Allscripts a reasonable time to modify its use of the Company Marks to comply therewith.

(iii) Allscripts is not required to display any Company- Marks on its products or marketing collateral, provided that the Subscription Software Services shall be characterized as Powered by Phreesia and shall contain a Phreesia logo. All goodwill in and to the Company Marks will inure solely to the benefit of Company.

(b) Allscripts Marks.

(i) Subject to the terms and conditions of this Agreement, Allscripts hereby grants to the Company a non-exclusive, royalty-free, irrevocable [***] non-transferable (except in accordance with Section 28.4), fully paid-up right and license under all of Allscripts' Intellectual Property to use the Allscripts Marks, throughout the Territory, solely in connection with providing the Installed Software and Subscription Software Services to Sublicensed Customers who have signed a Customer Agreement and to otherwise fulfill the terms of this Agreement.

(ii) The Company's use of the Allscripts Marks will be in accordance with Allscripts' trademark use guidelines and instructions, if any, furnished to the Company in writing from time to time. Allscripts will give the Company written notice of any changes to such specifications or guidelines, and will give the Company a reasonable time to modify its use of the Allscripts Marks to comply therewith.

(iii) The Company is not required to display any Allscripts Marks on any of its products or marketing collateral. All goodwill in and to the Allscripts Marks will inure solely to the benefit of Allscripts. The Company will not register, seek to register, or contest the validity of any of the Allscripts Marks in any jurisdiction.

8.4 Restrictions on Use. Except as and to the extent expressly permitted by this Agreement and/or the Integration Specification, Allscripts will not, and will not permit others to:

(a) reverse engineer, disassemble, decompile, decode, or adapt the Installed Software or Subscription Software Services, or otherwise attempt to derive or gain access to the source code or algorithms of the Installed Software or Subscription Software Services, in whole or in part, except [***];

(b) rent, lease, assign, or sell the Subscription Software Services or Installed Software to any third party (other than the physical media (if any) containing any Installed Software distributed by Allscripts); 12





(c) use any of the Installed Software or Subscription Software Services to provide time sharing or service bureau services to third parties, other than Sublicensed Customers;

(d) remove, obscure, or alter from the Installed Software, Subscription Software Services, Documentation or the Marketing Materials any applicable titles, trademarks, or copyright, patent, or other proprietary or restrictive legends or notices, or any end user warning or advisory, affixed to or contained therein or thereon;

(e) export or re-export all or any part of the Installed Software or Subscription Software Services in violation of any export control Laws of the United States or any other relevant jurisdiction;

(f) modify, correct, adapt, translate, enhance, or otherwise prepare or create any derivative works or improvements of the Installed Software or Subscription Software Services; provided, [***]

(g) (1) provide any materials to Company (including without limitation, the SDK (as defined in the Restated Developer Agreement) or Associated Allscripts Software (as defined in the Restated Developer Agreement)) that contains any Harmful Code or any Open Source Software or (2) upload any materials into the Installed Software or Subscription Software Services that contains any Harmful Code or any Open Source Software.

8.5 Intellectual Property Ownership.

(a) Subject to the express rights and licenses granted by the Company in this Agreement and the provisions of this Section 8.5, the Company and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to the Installed Software, the Subscription Software Services, the Merchant Processing Services, the Documentation, the Company Marketing Materials, and the Company Marks, and all modifications, improvements, enhancements and derivatives of the foregoing (including, subject to Section 8.4(f), any modifications, improvements, enhancements and derivatives thereto developed or performed by or on behalf of Allscripts). At no time will Allscripts, Allscripts Resellers, Partnering Organizations, or Sublicensed Customers acquire or retain any title to or ownership to such assets, except as expressly granted under this Agreement.

(b) Subject to the express rights and licenses granted by Allscripts in this Agreement, Allscripts and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to any modifications, improvements, or derivative works it creates or develops based on the Documentation or the Company Marketing Materials as authorized under this Agreement (e.g., any Documentation or Marketing Materials integrated with Allscripts documentation), as well as to all Allscripts products and services. At no time will the Company acquire or retain any title to or ownership to such assets, except as expressly granted under this Agreement.

(c) Ownership of all Intellectual Property in Open Source Software will remain with respective owners thereof, subject to Allscripts' rights under the applicable Open Source Licenses.

(d) Neither Party will take any action inconsistent with a Party's nor its licensors' ownership and interests set forth in this Section 8.5, or assist any Person in doing the same.

8.6 Data. As between Allscripts, its licensors and Affiliates, and Sublicensed Customers, on the one hand, and the Company and its licensors and Affiliates, on the other hand, Allscripts, its licensors and Affiliates, and Sublicensed Customers have, reserve, and retain sole and exclusive ownership to all right, title, and interest in and to all Data, including all Intellectual Property arising therefrom or relating thereto. [***] have any right or license to, and shall not, use any Data except solely as and to the extent necessary to [***]. 13





8.7 Open Source Software. The Company has not, and will not, use, modify, or distribute any Open Source Software in a manner that could (a) require the disclosure, licensing, or distribution of any source code or algorithms underlying any of the Installed Software or any software into which it is integrated; (b) require the licensing or disclosure of the Installed Software or any software into which it is integrated free of charge; or (c) otherwise impose any limitation, restriction, waiver of rights, or condition on the right or ability of the Company to use or distribute the Installed Software or any software into which it is integrated.

8.8 Effect of Company Bankruptcy.

(a) All rights and licenses granted by the Company under this Agreement are and shall be deemed to be rights and licenses to intellectual property, and the subject matter of this Agreement, including all Installed Software, Subscription Software Services Documentation, Company Marketing Materials, and Company Marks, is and will be deemed to be embodiment[s] of intellectual property, for purposes of and as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code (the Bankruptcy Code). Allscripts will have the right to exercise all rights and elections under the Bankruptcy Code and all other applicable bankruptcy, insolvency, and similar Laws with respect to this Agreement, and the subject matter hereof and thereof.

(b) Without limiting the generality of the foregoing, the Company acknowledges and agrees that, if the Company or its estate becomes subject to any bankruptcy or similar proceeding:

(i) subject to Allscripts' rights of election, all rights and licenses granted to Allscripts under this Agreement will continue subject to the respective terms and conditions hereof and thereof, and will not be affected, even by the Company's rejection of this Agreement; and

(ii) Allscripts will be entitled to a complete duplicate of (or complete access to, as appropriate) [***].

9. [intentionally left blank].

10. Training.

10.1 Training. The Company will provide, [***] periodic training for Allscripts personnel in connection with this Agreement, with the first such training [***] (such training, the First Training). The Company agrees to dedicate sufficient resources in connection with such training. Such training may be for the benefit of Allscripts personnel either as to Allscripts' permitted activities under this Agreement or to assist the Sublicensed Customers. Such training will be provided at such reasonable times and locations (including via remote means) as the Parties may reasonably agree. Such training will include, but is not limited to, sales and ongoing support training to Allscripts staff. The goal of this training will be to enable Allscripts' sales personnel to articulate the benefits of the Services and provide basic functional demonstrations to prospective Sublicensed Customers.

10.2 Support Training. In furtherance of Section 10.1, the Parties agree to cooperate in developing any training programs as may be reasonably necessary or useful to the provision of Support Services to Sublicensed Customers, which will be provided in a train the trainer format. Such programs will, at a minimum, provide Allscripts personnel with the ability to answer or appropriately refer questions about the Installed Software, Subscription Software Services or Merchant Processing Services and the Services. Such support training will include up to [***] each year of support training for Allscripts' staff adequate to enable Allscripts to provide first line support services to Sublicensed Customers as further defined in the Implementation and Support Plan. 14





11. Marketing.

11.1 Sales and Marketing Support. [***] the Company will provide [***] marketing support for the permitted activities hereunder, which will include, the following:

(a) assisting Allscripts in developing marketing strategies, plans, and marketing and training materials describing the Installed Software, Subscription Software Services or Merchant Processing Services or the Services as a complementary solution to any Allscripts product or service;

(b) providing Allscripts with a reasonable quantity of standard Company brochures, presentations, and materials related to the Installed Software, Subscription Software Services or Merchant Processing Services, the Services and/or the Company in hard copy and electronic form; and

(c) participating in sales meetings with Allscripts sales and/or actual or potential Sublicensed Customer personnel.

11.2 Demonstration Systems. [***], the Company will provide fully-functional demonstration systems or accounts for the Subscription Software Services, equivalent to those systems made available to the Company's sales personnel, for use by Allscripts' sales personnel. Each Party will provide all commercially reasonable assistance, cooperation, and support requested by the other Party to maintain demonstration systems sufficient to demonstrate the Installed Software and the Subscription Software Services as integrated with any Allscripts products or services. Each Party will be responsible for its own costs and expenses in designing, developing, testing, and maintaining such demonstration systems.

11.3 Branding. Branding of the Installed Software and the Subscription Software Services, but not the Merchant Processing Services with respect to the activities hereunder will be determined [***] Allscripts elects to private label or rebrand the Software Subscription Services, the relabeled or rebranded [***].

11.4 Request for Proposals. Allscripts may, in its sole discretion, recommend the Subscription Software Services or Merchant Processing Services and the Services as part of Allscripts' response to requests for proposals issued by third parties. [***].

11.5 Demonstrations. The Company at its own discretion will provide demonstrations of the Subscription Software Services and Merchant Processing Services at Allscripts-identified marketing events and activities, including user group meetings or conferences. In addition, either Party may, from time to time, request that the other Party attend and participate at vendor fairs and industry trade shows, seminars, user group events, and other similar events. The decision of whether or not to attend such functions will be in the sole discretion of the non-requesting Party.

12. Support and Maintenance.

12.1 Support Services.

(a) The Company is solely responsible for the development, update, performance, and maintenance of the Subscription Software Service. The Company covenants to use its best efforts to ensure that the Subscription Software Services are made available to Allscripts and each Sublicensed Customer and that support for Merchant Processing Services are made available to each Sublicensed Customer in accordance with the warranties, terms, and conditions of this Agreement and in accordance with any performance standards specified in this Agreement or in the Documentation. [***]. 15





(b) In furtherance of Section 12.1(a), the Company agrees to provide, at no additional charge to Allscripts or Sublicensed Customers [***] technical support, assistance, training, and Updates related to the Installed Software or Subscription Software Services or Merchant Processing Services (collectively, Support Services), in the manner and timeframes set forth on Exhibit D, to Allscripts and its consultants and contractors and, if requested by Allscripts, directly to Sublicensed Customers. [***]. The parties agree to reasonably cooperate to troubleshoot and resolve technical support issues that may reasonably involve the products, software, or technology of the other Party or of both Parties. This Section 12.1(b) shall not be applicable to Merchant Processing Services that an Allscripts Customer receives in connection with its purchase of PIMS.

12.2 Support Levels. Allscripts will provide the first level of support to Sublicensed Customers related to the Installed Software and Subscription Software Services and their integration with applicable Allscripts products. The first level of support is defined in Exhibit C. [***]. Allscripts, at its sole expense, will provide the second and all escalating levels of support for all technical issues and upgrades relating to Allscripts products. [***].

12.3 Integration Support. At the Company's expense and no additional charge to Allscripts, from time to time the Company will provide Allscripts with reasonable remote integration and implementation assistance, including, without limitation, upon addition of a new or updated Installed Software or Subscription Software Services under this Agreement.

12.4 Documentation. The Company has delivered or made available to Allscripts complete and accurate Documentation for the Installed Software, Subscription Software Services and that required to offer the Merchant Processing Services, and will promptly deliver or make available to Allscripts supplements to such Documentation and manuals, as and when released, to reflect all modifications, releases, supplements, corrections, Updates, amendments, and other changes to the Installed Software or Subscription Software Services or that required to offer the Merchant Processing Services. The Company will provide all Documentation in electronic form, in such formats and media as Allscripts may reasonable request. The Company agrees that all Documentation will include all technical and functional specifications and other such information as may be reasonably necessary for the effective installation, testing, use, support, and maintenance of the Installed Software and Subscription Software Services other than the Merchant Processing Services, including the effective configuration, integration, and systems administration of the Installed Software, Subscription Software Services other than the Merchant Processing Services and the operation and the performance of all its functions.

13. Updates.

13.1 Updates. [***] (either directly or through Allscripts, at Allscripts' direction) with Updates , either in response to specific requests from Allscripts to remedy Errors (consistent with the Error correction timing in Exhibit C), or as such Updates are released or generally made available [***]. For the avoidance of doubt, Updates will constitute Installed Software or Subscription Software Services (as applicable) and be subject to the terms and conditions of this Agreement. With respect to the Merchant Processing, [***]. 16





13.2 Restrictions on Updates.

(a) With respect to any material customer facing Update that does not relate to Merchant Processing Services, the Company will provide Allscripts [***] notice before releasing any such Update (except for Error corrections or fixes which may be released earlier). At least [***] before releasing any such customer facing Update (except for Error corrections or fixes which may be released earlier), the Company will provide Allscripts with (i) technical documentation of such Update; (ii) commercially reasonable technical assistance and training for such Update; and (iii) a functional, updated demonstration version of the Subscription Software Services (and for any Update made available via remote access, a testing environment), which will be sufficient to enable Allscripts to test the applicable Subscription Software Services and Allscripts products and services with respect to such Update. [***].

(b) The Company agrees to use its best efforts to resolve all support issues (pursuant to Exhibit D) relating to an Update that the Parties classify as Critical or High (as on Exhibit D) before releasing such Update.

13.3 Compatibility. With respect to any upgrades, updates, or modifications [***].

13.4 Changes to Merchant Processing Services. The Company may make revisions to the Merchant Processing Services, [***].

14. Other Covenants.

14.1 Insurance.

(a) At the Company's expense, the Company will maintain policies of insurance with insurance companies having a financial strength rating no lower than A and a size category not lower than XII as rated by the A.M. Best Company, and in amounts which are reasonable and prudent in light of the Company's business, potential liabilities to Allscripts hereunder, and other relevant factors, including the following: (i) Commercial General Liability insurance [***] (ii) Errors and Omissions insurance [***] and (iii) Workers' Compensation insurance with applicable statutory limits.

(b) Allscripts will be named as an additional insured under the foregoing policies, each of which will be primary and non-contributory. [***] The Company will give Allscripts [***] notice prior to any alteration, cancellation, or non-renewal of the policies required pursuant to this Agreement; provided, however, that the Company will not be obligated to provide such notice if, concurrently with such alternation, cancellation, or non-renewal, the Company obtains similar or better coverage from the same or another qualified insurer, without a lapse in coverage.

14.2 No Subcontractors. Except for the performance of the Merchant Processing Services, the Company will not subcontract any of its obligations under this Agreement to a third party, including the provision of any Services, without Allscripts' prior written consent. Allscripts hereby consents to the use by the Company of offshore developers with respect to the development of the Installed Software and the Subscription Software Services. The Company will remain responsible to Allscripts for any performance of its obligations hereunder notwithstanding the permitted engagement of any such third party. Allscripts acknowledges that the provision of the Merchant Processing Services is dependent on the services of the Member Banks. Company shall use good faith efforts to maintain its ability to provide Merchant Processing Services, including by adhering to the rules and regulations promulgated by Visa, Master Card and the Member Bank and using good faith efforts to maintain a current contract with the Member Bank or a reasonably comparable substitute to enable it to fulfill its obligations hereunder. Notwithstanding anything to the contrary [***]. 17





14.3 Further Assurances. Each Party will, upon the reasonable request of the other Party and at the requesting Party's sole cost and expense, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

14.4 Non-Solicitation. During the term of this Agreement and for a period of [***] thereafter, neither Party nor its controlled Affiliates will, without the prior written consent of the other Party, directly or indirectly solicit for employment any then-current employee of the other Party or its controlled Affiliates; [***].

14.5 Compliance with Laws. Each Party will comply with all applicable Laws and the Operating Regulations, governmental requirements, and industry standards, including those with respect to privacy, data protection, portability, or accountability, applicable to such Party or its personnel with respect to the Software, the Services, and the performance of its obligations under this Agreement; provided that Allscripts will have no obligation to comply with any Operating Regulations unless such Operating Regulations are disclosed to it. Neither Party will, nor permit any third parties to, export, re-export, or release, directly or indirectly, any Controlled Technology to any country or jurisdiction to which the export, re-export, or release of any Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

14.6 [***].

15. Force Majeure.

15.1 Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by (a) acts of God; (b) flood, fire, or explosion; (c) war, terrorism, invasion, riot, or other civil unrest; (d) embargoes or blockades in effect on or after the Effective Date or (e) any other cause or event beyond its reasonable control (each of the foregoing, a Force Majeure Event). The Disaster Recovery Plan, attached hereto as Exhibit L, sets forth Phreesia's obligations for disaster recovery preparedness and response, including among other things, preparing for and responding to Force Majeure Events.

15.2 [***].

16. Regulatory Matters.

16.1 Privacy and Security Matters. Concurrently with the execution of this Agreement, the Parties are executing a HIPAA Business Associate Agreement (the BAA) in the form attached hereto as Exhibit E.

16.2 Technical Standards. The Company will provide Allscripts with Updates so that the Subscription Software Services can be implemented and configured to comply in all material respects with applicable privacy and security standards (e.g., HITECH, HIPAA, and Omnibus rule) within a reasonably practicable timeframe (based on the scope of required enhancements and other factors) after their final, formal adoption and publication by the Secretary of the U.S. Department of Health and Human Services.

16.3 Data. The Company will ensure that all protected health information (PHI), personally identifiable information (PII) or payment card information (PCI) is (1) encrypted at rest and (2) encrypted while moving in or out of the Company's data center. 18





16.4 Interfaces. In connection with the Subscription Software Services, PIMS and the Services, the Company will use and support Unity API interfaces that are generally available to Allscripts, and make appropriate adjustments to the Subscription Software Services to support Allscripts' standard implementation of such interfaces. Upon the Parties' mutual agreement, and without additional licensing fees, the Company may also use Allscripts API services (e.g., Unity), and Allscripts may use the Company's APIs (as applicable).

16.5 Required Updates. The Company will provide Allscripts with Updates, if and when required, so that the Subscription Software Services include such functionalities as are necessary to allow Allscripts and Sublicensed Customers to comply with those legal and regulatory requirements that are binding upon Allscripts or Sublicensed Customers in their respective use of the Installed Software and Subscription Software Services or Merchant Processing Services and that are binding standards or other requirements regarding the processing of electronic transactions that the Installed Software and Subscription Software Services or Merchant Processing Services are designed to process, including any and all binding modifications or replacements to such regulations. [***].

16.6 Regulatory Approvals. The Company will be solely responsible for obtaining and maintaining all licenses, permits, and approvals required by any governmental authority with respect to the Software or the marketing, use, or distribution thereof. The Company will use reasonable diligence in connection with the design and development of the Subscription Software Services or Merchant Processing Services to identify any such licenses, permits, and approvals and any applicable Laws to which the Subscription Software Services or Merchant Processing Services or its use is subject. [***].

16.7 [Intentionally Omitted.]

16.8 Protected Health Information. Except as otherwise expressly provided hereunder, in connection with any transfer of protected health information (PHI) between the Parties pursuant to this Agreement:

(a) each Party will transfer PHI between the Parties only through use of a dedicated connection to which the Parties are the only authorized parties or such other method of communication, such as encrypted communication, between them;

(b) each Party will not permit any third party to use any such connection to the extent that such use is in its control, unless such third party is providing services to such Party as permitted under this Agreement;

(c) each Party will take reasonable steps to ensure that the output display of that connection at each facility it has is limited to authorized personnel or independent contractors of the Party; and

(d) the Company's use of Sublicensed Customer de-identified and aggregated PHI will be limited to the rights set forth in a Business Associate Agreement, if any, executed between the Company and the respective Sublicensed Customer. The Company has no rights to de-identify any Sublicensed Customer PHI under this Agreement.

17. Invoicing, Reporting and Payment Terms.

17.1 Reports and Invoicing.

(a) Invoicing from Company to Allscripts. 19





(i) Invoicing for Eligibility and Benefits (E&B) Services. The Company will provide Allscripts with (1) an invoice for the fees set forth on Exhibit F for all E&B Transactions [***] and (2) a report with reasonably detailed supporting data for all such E&B Transactions by each Sublicensed Customer, excluding Legacy Customers, [***].

(ii) Invoicing for POS Dashboard. Allscripts shall deliver a report with reasonably detailed supporting data to Company no later than [***] for current Sublicensed Customers of the POS Dashboard. Company shall deliver an invoice to Allscripts for POS Dashboard fees in accordance with Exhibit F no later than [***].

(iii) Invoicing for Professional Services and Travel and Expense (T&E) Reimbursement. If services are performed by Company pursuant to a request by Allscripts for implementation, set up, training or support beyond those services that Company is required to perform under this Agreement, including, without limitation, as set forth in Sections 10 and 11, Company will deliver an invoice for such fees at the hourly rate described in Exhibit C and any related reimbursable expenses that Allscripts has pre-approved no later than [***] together with reasonable supporting detail.

(iv) Allscripts Internal Use. Notwithstanding anything to the contrary, Allscripts will not be required to make any payments to the Company in respect of its internal use of the Installed Software or Subscription Software Services, including with respect to its use in connection with its performing of support obligations hereunder.

(b) Invoicing from Allscripts to Company.

(i) Invoicing for Revenue Share on Merchant Processing Services. Company shall deliver a report with reasonably detailed merchant-level payment transaction data, [***] to Allscripts [***] for Merchant Processing Services provided to Allscripts Customers, excluding Legacy Customers. Allscripts will provide the Company with an invoice for merchant processing revenue share in accordance with Exhibit F [***].

(ii) Invoicing for Patient Intake Management Offering. Company shall deliver a report with reasonably detailed data, [***] to Allscripts [***] for its Patient Intake Management Offering provided to Allscripts Customers, excluding Legacy Customers. Allscripts will provide the Company with an invoice for merchant Patient Intake Management revenue share in accordance with Exhibit F, [***].

(iii) Legacy Customer's Fee. Allscripts shall invoice the Company for Legacy Customers (as defined on Exhibit H) quarterly fees in accordance with Exhibit F [***].

17.2 Reporting for the Purpose of Invoicing Sublicensed Customers. [***].

17.3 Payment Terms.

(a) Each party will submit each invoice in electronic format, via such delivery means and to such address as are specified by Allscripts and the Company in writing from time to time.

(b) Subject to the terms and conditions of this Section 17.3, each party will pay all properly invoiced fees within [***] after its receipt of a proper invoice therefor. All payments hereunder will be invoiced in U.S. Dollars. All payments hereunder will be made by wire transfer to the account specified by each Party; provided that a Party shall provide at least [***] advance notice of any changes to its account. [***]. 20





(c) Subject to Section 17.3(d), Company will not withhold the Subscription Software Services or Merchant Processing Services or any Services or fail to perform any obligation hereunder by reason of a good faith withholding of any payment or amount in accordance with this Section 17.3(c) or any dispute arising therefrom. [***].

(d) [***].

17.4 Audit Rights.

(a) During the term of this Agreement, for the longer of [***], each Party will maintain complete and accurate (in all material respects) books and records, in accordance with generally accepted accounting practices, regarding its sales and services activities with respect to the subject matter of this Agreement.

(b) During the term of this Agreement, [***], each Party will have the right to engage, at its own expense, an independent auditor reasonably acceptable to the other Party to review the other Party's books and records solely for the purpose of confirming the other Party's compliance with its pricing and payment obligations hereunder. Prior to performing any audit, the independent auditor must sign a confidentiality agreement in a form reasonably acceptable to the audited Party. Any such audit will be limited in scope to the [***] period immediately preceding the commencement date of such audit. The auditing Party will furnish the audited Party with written notice at least [***] prior to the date that it desires to commence such audit. The Parties will mutually agree, reasonably and in good faith, on the timeframe for such audit to be conducted. Any such audit will be conducted during the audited Party's regular business hours and in a manner that minimizes interference with the audited Party's normal business activities. All information that is disclosed in connection with such audit will be deemed to be the Confidential Information of the audited Party, and subject to this Agreement. Any audit will be conducted in a manner that does not breach or violate any applicable Laws regarding patient confidentiality. The rights set forth in this Section 17.4(b) may not be exercised by an auditing Party more frequently than one (1) time in any twelve (12)-month period.

(c) If any audit reveals an underpayment or over-charge by a Party, then such Party will promptly remit the full amount of such underpayment or over-charge to the other Party.

(d) Each Party will bear all costs and expenses it incurs in connection with preparing for, conducting, or complying with any such audit including, in the case of the auditing Party, the costs and expenses of conducting the audit.

(e) Additionally, Allscripts shall have the right to examine the development and any work-in-progress at any time upon reasonable notice to the Company. Furthermore, [***], the Company shall provide sufficient access to its books and records as requested by Allscripts for the purpose of verifying the Company's compliance with its obligations relating to matters other than payment and pricing. In addition, [***], Allscripts shall provide sufficient access to its books and records as requested by the Company for the purpose of verifying Allscripts compliance with its fee reporting and payment obligations hereunder.

(f) Annually, the Company shall have performed, [***], a PCI assessment and a third party privacy and security assessment covering [***] Company will make available to Allscripts via WebEx or similar web-conferencing technology a copy of the reports from the PCI assessment and the privacy and security assessment for Allscripts review [***] of [***]. Additionally [***], upon Allscripts' reasonable 21





request, Company shall cause the firms performing the Security Assessments to make available the personnel responsible for such audits to discuss any adverse findings with Allscripts. Company shall perform third party external vulnerability scans [***]. All Critical or High vulnerabilities identified during the scans shall be remediated and validated as closed by the third party scanning vendor. Company shall also perform third party penetration tests following a major security architectural change. Company shall provide to Allscripts an executive summary of each vulnerability scan and penetration test [***] of completion of each such scan or test. Vulnerability scans and penetration testing requirements shall commence [***]. The PCI audit, third party Privacy and Security assessment, vulnerability scan, and penetration test shall collectively be referred to as the Security Assessments.

(g) Annually, Allscripts shall have performed, at its costs and expense, a third party privacy and security assessment [***]. Upon request, Allscripts will coordinate with Company to make available to Company via WebEx or similar web-conferencing technology a copy of the report from the privacy and security assessment for Company review, provided that such web-conference will not be earlier than [***].

Failure to comply with this Section shall be deemed a material breach of this Agreement.

18. Expenses; Taxes.

18.1 Expenses. Unless otherwise expressly set forth in this Agreement, each Party will bear all of its own costs and expenses incurred in connection with this Agreement or its performance hereunder, including any development costs, sales and marketing costs, and support costs.

18.2 Taxes. All fees set forth herein are inclusive of any taxes, tariffs, duties, assessments, or governmental charges. Each Party will be responsible for any sales tax, use tax, excise tax, import duty, export duty, or other tax, tariff, duty, assessment, or charges of any kind imposed by any governmental entity on it as a result of any transaction contemplated by this Agreement.

19. Confidentiality.

19.1 Obligations. From time to time in connection with this Agreement, either Party (as the Disclosing Party) may disclose or make available to the other Party (as the Receiving Party) Confidential Information. [***].

19.2 Exceptions. Confidential Information shall not include [***].

19.3 Legally Required Disclosure. Notwithstanding anything in this Section 19 to the contrary, if a Receiving Party or any of its Representatives is required or receives a request, pursuant to applicable Law or the rules or regulations of a stock exchange or similar self-regulatory authority, to disclose any of the Disclosing Party's Confidential Information, then the Receiving Party agrees, to the extent legally permissible and as soon as reasonably practicable, to provide the Disclosing Party with written notice of the event so that the Disclosing Party may, at the Disclosing Party's expense, seek a protective order or other remedy. The Receiving Party or its Representative (as applicable) will use its commercially reasonable efforts to consult and cooperate with the Disclosing Party with respect to any effort by the Disclosing Party to resist or narrow the scope of such requirement or request, or to seek such protective order or other remedy. If such protective order or other remedy is not obtained, then the Receiving Party or its Representative (as applicable): (a) may, without liability, disclose that portion of the Disclosing Party's Confidential Information that it is required or requested to disclose; and (b) will use its commercially reasonable efforts to have confidential treatment accorded to the Confidential Information so disclosed. Furthermore, Section 19 will not apply to the disclosure of Confidential Information if such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Any information disclosed pursuant to this Section 19.3 will retain its confidential status for all other purposes. 22





19.4 Effect of Expiration or Termination. Subject to Section 25.7, upon expiration or termination of this Agreement, at the Disclosing Party's request, the Receiving Party will, and will cause its Representatives (and, if applicable, its Affiliates, Allscripts Resellers, and Partnering Organizations) to, promptly return or destroy all Confidential Information received from the Disclosing Party in tangible form, together with all copies thereof, in such Person's possession; provided, however, that the Receiving Party may keep one (1) copy of the Disclosing Party's Confidential Information (a) to the extent necessary to exercise its surviving rights and perform its surviving obligations hereunder and (b) in accordance with its corporate security and/or disaster recovery procedures, to the extent such Confidential Information is in electronic form. The Receiving Party will, upon request, promptly certify in writing that it has complied with the obligations of this Section 19.4.

19.5 Protected Health Information. For the avoidance of doubt, the protection of PHI or other personally identifiable information received by a Party or its Representatives hereunder will be governed by the BAA, and will not be deemed to be Confidential Information for purposes of this Agreement.

19.6 No Additional Requirements. Each Party acknowledges that the other Party or its Representatives may, currently or in the future, be developing internally, or receiving information from other Persons, that is similar to the Confidential Information of the other Party disclosed to it or its Representatives under this Agreement. Except as otherwise set forth in Section 5, nothing in this Agreement will prohibit any Party or its Representatives from developing, manufacturing, marketing, selling, servicing, or supporting, or having developed, manufactured, marketed, sold, serviced, or supported for it, products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems, or techniques contemplated by or embodied in the other Party's Confidential Information; provided, that neither Party nor its Representatives may use the other Party's Confidential Information in connection with such activities. Furthermore, neither Party nor its Representatives will have any obligation to limit or restrict the assignment of its respective employees or consultants as a result of their having had access to the other Party's Confidential Information.

20. Public Announcements.

20.1 Publicity. Except as may be required by applicable Law or listing standard, neither Party will issue or release any public announcement, statement, press release, or other publicity relating to this Agreement without the prior written consent of the other Party.

20.2 Use of Marks. Unless expressly permitted by this Agreement, neither Party will use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, origin, association, or sponsorship, without the prior written consent of the other Party.

21. Representations and Warranties.

21.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:

(a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation, organization, or charter; 23





(b) it has, and throughout the term of this Agreement and any Customer Agreement will retain, the full right, power, and authority to enter into this Agreement, to grant the rights and licenses it grants hereunder, and to perform its obligations under this Agreement;

(c) its execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party;

(d) when executed and delivered by it, this Agreement will constitute its legal, valid, and binding obligation, enforceable against it in accordance with its terms;

(e) there is no outstanding claim, litigation, proceeding, arbitration, or investigation to which it is a party that would reasonably be expected to have a material adverse effect on its ability to enter into this Agreement or to perform its obligations hereunder; and

(f) its execution, delivery, and performance of its obligations under this Agreement does not and will not violate any judgment, order, decree, or applicable Law, nor does it or will it violate any agreement to which it is a party.

21.2 Company Representations and Warranties. The Company represents and warrants to Allscripts that:

(a) Company or its licensors, or their permitted successors or assigns are, and throughout the term of this Agreement and any Customer Agreement will remain, the legal and beneficial owners of the entire right, title, and interest in and to the Installed Software, Subscription Software Services, the Documentation, and the Company Marketing Materials, including all Intellectual Property relating thereto (or, with respect to any third party software used to provide the Installed Software, Subscription Software Services it has, and will continue to have throughout the term of this Agreement, sufficient and valid license rights to grant the licenses and perform its obligations hereunder), including the unconditional and irrevocable right, power, and authority to grant the licenses and perform its obligations hereunder;

(b) as provided by the Company, no Installed Software or Subscription Software Services (including any Updates) does or will, at any time during the term of this Agreement or any Customer Agreement, contain any Harmful Code and no Installed Software will contain any Open Source Software;

(c) when used by Allscripts or any Sublicensed Customer, no Installed Software, Subscription Software Services, Documentation or Company Marketing Materials does or will: (i) infringe, misappropriate, or otherwise violate any Intellectual Property or other proprietary right of any third party (provided that Company's sole obligation and Allscripts sole remedy for any breach of the foregoing shall be for Company to indemnify Allscripts pursuant to Section 22), or (ii) fail to comply with any applicable Law;

(d) there is no settled, pending, or, to the Company's knowledge, threatened litigation, claim, or proceeding (including in the form of any offer to provide a license): (i) alleging that any use of the Installed Software, Subscription Software Service, Documentation or Company Marketing Materials does or would infringe, misappropriate, or otherwise violate any copyright, patent, trade secret, or other Intellectual Property of any third party; (ii) challenging the Company's ownership of, or right to use or license, any Installed Software, Subscription Software Services or Merchant Processing Services, Documentation or Company Marketing Materials, or alleging any adverse right, title, or interest with respect thereto; or (iii) alleging the invalidity, misuse, unregistrability, unenforceability, or non-infringement of any copyrights, trade secret rights, or patent rights in the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, or Company Marketing Materials; 24





(e) all Documentation is and will be complete and accurate in all material respects when provided to Allscripts, such that at no time during the term of this Agreement or any Customer Agreement will the Subscription Software Services or Merchant Processing Services have any material undocumented feature; and

(f) all Services provided hereunder are and will be in compliance with all applicable Laws.

21.3 Performance Warranty. The Company represents, warrants, and covenants to Allscripts that, during the term of this Agreement and any Customer Agreement:

(a) when used in accordance with the Documentation, all Subscription Software Services or Merchant Processing Services and the Installed Software as provided by the Company will meet, in all material respects, all applicable specifications set forth in this Agreement and the Documentation, and function in all material respects, in conformity with this Agreement and the Documentation;

(b) any media on which the Installed Software or Documentation is delivered will be free of any damage or defect in design, material or workmanship; and

(c) no Update will have a material adverse effect on the material functionality or operability of the Installed Software or Subscription Software Services or Merchant Processing Services, as the case may be.

21.4 Breach of Performance Warranty. If the Company breaches any of the warranties set forth in Section 21.3, then the Company will, upon notice from Allscripts and at the Company's sole cost and expense, remedy such breach on a timely basis and in accordance with Section 12. [***].

21.5 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

22. Indemnification.

22.1 Indemnification by the Company. Subject to the provisions of this Section 22, the Company agrees to defend Allscripts and its Representatives, and all of such Persons' successors and assigns (collectively, the Allscripts Indemnified Persons), from and against any and all third party Claims, and indemnify and hold the Allscripts Indemnified Persons harmless from and against any and all Losses incurred or sustained by the Allscripts Indemnified Persons, or any of them, directly or indirectly, in connection with or to the extent such third party Claim and related Loss is a result of any of the following:

(a) the Company's breach of any representation, warranty, covenant, or obligation of the Company under this Agreement or the Restated Developer Agreement;

(b) any violation of applicable Law by the Company;

(c) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to the Company contained in this Agreement (including the performance of the Services), including any personal injury, death, or damage to tangible personal or real property; 25





(d) taxes assessed or claimed against any of the Allscripts Indemnified Persons that are obligations of the Company in connection with this Agreement or which result from the breach of this Agreement by the Company;

(e) any damage caused to any third party's IT environment by Company or any Developer App (as defined in the Restated Development Agreement) or

(f) any Claims that any Developer App, the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, Marketing Materials, the Company Marks, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof, infringe, misappropriate, or violate any Intellectual Property or other rights of a third party, including any damages suffered by Sublicensed Customers as a result thereof for which Allscripts is liable, including any refunds of fees paid by Sublicensed Customers for use of such infringing materials.

22.2 Infringement Remedy.

(a) In the event of a Claim that the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, Company Marketing Materials, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof, infringe, misappropriate, or violate any Intellectual Property of a third party, or if any use of any of the Installed Software, Subscription Software Services or Merchant Processing Services, the Documentation, Company Marketing Materials, or the Services (or any respective component thereof) is enjoined, threatened to be enjoined, or is otherwise the subject of such a Claim, [***].

(b) [***].

(c) [***].

22.3 Indemnification by Allscripts. Subject to the provisions of this Section 22, Allscripts agrees to defend the Company and its Representatives, and all of such Persons' successors and assigns (collectively, the Company Indemnified Persons), from and against any and all third party Claims, and indemnify and hold the Company Indemnified Persons harmless from and against any and all Losses incurred or sustained by the Company Indemnified Persons, or any of them, directly or indirectly, in connection with or to the extent such Claim and related Loss is a result of any of the following:

(a) Allscripts' breach of any representation, warranty, covenant, or obligation of Allscripts under this Agreement or the Restated Developer Agreement;

(b) any violation of applicable Law by Allscripts, or by Allscripts' Affiliates, Allscripts Resellers, and Partnering Organizations solely in connection with this Agreement;

(c) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to Allscripts or to Allscripts' Affiliates, Allscripts Resellers, and Partnering Organizations contained in this Agreement, including any personal injury, death, or damage to tangible personal or real property; or

(d) any claim that the SDK (as defined in the Restated Developer Agreement), the Associated Allscripts Software (as defined in the Restated Developer Agreement) Allscripts Marks or any Allscripts products or services infringe, misappropriate, or violate any Intellectual Property of a third party; or 26





(e) taxes assessed or claimed against any of the Company Indemnified Persons that are obligations of Allscripts, Allscripts' Affiliates, Allscripts Resellers, or Partnering Organizations in connection with this Agreement, or which result from the breach of this Agreement by Allscripts, Allscripts' Affiliates, Allscripts Resellers, or Partnering Organizations.

22.4 Indemnification Procedure.

(a) A Person seeking defense and indemnification under this Section 22.4 (the Indemnified Person) will promptly notify the Party from whom defense and indemnification is being sought (the Indemnifying Party) in writing, describing the circumstances, in reasonable detail, for which it seek defense and indemnification.

(b) Upon notice of a Claim, the Indemnifying Party will [***] assume the investigation and defense of such Claim, and, in connection therewith, will employ counsel of national reputation of its own choosing [***]. At the Indemnifying Party's request and expense, the Indemnified Person will provide reasonable cooperation in connection with the investigation and defense of such Claim; [***]. The Indemnified Person may also participate in and observe (but not control) the investigation and defense of such Claim, [***] and with counsel of its choosing.

(c) If the Indemnifying Party fails to defend a Claim hereunder within a reasonable amount of time after receiving notice thereof, the Indemnified Person will have the right, but not the obligation, and without waiving and of its other rights hereunder, to undertake the defense of and to compromise or settle such Claim, on behalf of [***] of the Indemnifying Party.

(d) [***].

(e) An Indemnified Person's failure to perform any obligations under this Section 22.4 will not diminish an Indemnifying Party's obligations hereunder, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.

(f) [***].

[***].

22.5 Limitations. The Company's obligations to provide defense and indemnity pursuant to this Section 22 will be reduced to the extent that the Claim or Loss was caused by (a) the Indemnified Person's creation of modifications to the Installed Software, Subscription Software Services, Developer App, Merchant Processing Services, Documentation, Company Marketing Materials, or Services, unless such modifications (i) were authorized in writing by the Company or were otherwise directed in writing or caused by the Indemnifying Party or (ii) were contemplated and permitted as a feature of any of the Installed Software or Subscription Software Services or Merchant Processing Services, and in each case solely to the extent such Claim would not have occurred but for such modifications; (b) the Indemnified Person's failure to use updates or corrections made available by the Indemnifying Party, but solely to the extent such Claim would not have occurred if such updates or corrections had been used; or (c) the operation of Allscripts' products or services or the combination or use of the Installed Software, Developer App, Subscription Software Services or Merchant Processing Services or Services in conjunction with Allscripts' products or services (unless directed in writing or caused by the Company), if such Claim would not have arisen but for such combination or use, and except to the extent arising from any combination performed by or on behalf of the Company in connection with the Services. 27





23. Limitation of Liability.

23.1 Limitation of Liability.

(a) EXCEPT AS OTHERWISE SET FORTH IN SECTION 23.2, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POTENTIAL FOR SUCH DAMAGES, OR WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, TORT, OR OTHERWISE. [***].

(b) EXCEPT AS OTHERWISE SET FORTH IN SECTION 23.2, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID BY ALLSCRIPTS TO COMPANY HEREUNDER DURING THE [***] PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH HEREIN REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

23.2 Exceptions. The limitations in Section 23.1(a) will not apply to (a) losses arising out of or relating to a Party's breach of its obligations in Section 8 (excluding Section 8.4(g)) or Sections 1.1, 1.2, 1.4, 1.6 or 6.1 of the Restated Developer Agreement, (b) losses arising out of a Party's breach of Section 19 or the Business Associate Agreement (c) losses arising from a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (d) losses for death, bodily injury, or damage to real or tangible personal property arising out of or relating to a Party's negligent or more culpable acts or omissions or (e) a Party's obligation to pay attorneys' fees and other costs pursuant to Section 28.9(e). The limitations in Section 23.1(b) will not apply to (a) losses arising out of or relating to a Party's breach of its obligations in Section 8 (excluding Section 8.4(g)) or Sections 1.1, 1.2, 1.4, 1.6 or 6.1 of the Restated Developer Agreement, (b) losses arising out of a Party's breach of Section 19 or the Business Associate Agreement; (c) a Party's indemnification obligations under Sections 22.1(b) through 22.1(e) or Sections 22.3(b) through 22.3(e); (d) losses arising from a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (e) losses for death, bodily injury, or damage to real or tangible personal property arising out of or relating to a Party's negligent or more culpable acts or omissions; or (f) a Party's obligation to pay attorneys' fees and other costs pursuant to Section 28.9(e). In addition, the limitations in Section 23.1(b) will not apply (1) to Company's indemnification obligations under Section 22.1(a) or (2) Allscripts indemnification obligations under Section 22.3(a), unless the Company's or Allscripts' indemnification obligation under Section 22.1(a) or 22.3(a), as the case may be, relates to the losses and obligations described in subclauses (a) through (f) of the preceding sentence. [***].

23.3 Essential Basis. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 28





24. Term.

24.1 Term. The initial term of this Agreement commences on the Effective Date and will continue in effect until five (5) year(s) from such date (the Initial Term) unless terminated earlier pursuant to Section 25.

24.2 Renewal. Unless this Agreement is terminated pursuant to Section 25, this Agreement will automatically renew for additional successive [***] terms (each a Renewal Term and together with the Initial Term, the Term) unless and until either Party provides written notice of non-renewal to the other Party at least [***] prior to the end of the then-current Term. 25. Termination.

25.1 Termination for Convenience. [***].

25.2 Termination for Cause. Either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party materially breaches this Agreement and such breach (a) is incapable of cure or (b) being capable of cure, remains uncured [***] after the breaching Party receives written notice from the non-breaching Party thereof.

25.3 Termination for Insolvency. Either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party (a) becomes insolvent or admits inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within [***] or is not dismissed or vacated within [***] after filing; (c) is dissolved or liquidated or takes any action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any portion of its property or business (and such appointment is not discontinued within [***] thereafter).

25.4 Termination for Force Majeure. Subject to Section 15.2, either Party may terminate this Agreement, immediately upon written notice to the other Party, if a Force Majeure Event affecting the other Party's performance of its obligations hereunder continues substantially uninterrupted for a period of [***] or more.

25.5 Termination for Exclusion/Termination of Merchant Processing Services. [***].

25.6 Termination for Change of Control. [***].

25.7 Effect of Expiration or Termination.

(a) The expiration or termination of this Agreement will not have the effect of terminating any Customer Agreement, Merchant Agreement (or the licenses to the Installed Software or Subscription Software Services distributed thereunder) or agreement directly between [***].

(b) Upon expiration or termination of this Agreement, except in connection with the rights and obligations set forth in this Section 25.7, Allscripts will immediately (i) cease all use of the Company Marks and all marketing and sales-related efforts with respect to the Installed Software, Subscription Software Services or Merchant Processing Services and the Services; (ii) discontinue all representations or statements from which it might be inferred that any relationship exists between the Parties; (iii) cease to solicit or procure orders for the Subscription Software Services or Merchant Processing Services, Installed Software, Merchant Processing Services or the Services; and (iv) return all copies of the Documentation, and related materials and copies thereof, to the Company; provided, however, that Allscripts may retain a reasonable number of copies of the Documentation and related materials in order to fulfill its obligations under this Agreement and the Customer Agreements. 29





(c) Upon expiration or termination of this Agreement, the Company will (i) provide reasonable cooperation and assistance to Allscripts, at Allscripts' written request and to the extent necessary to fulfill any continuing obligations under this Agreement, in transitioning the terminated Support Services to an alternative service provider; and [***].

(d) Subject to the foregoing paragraphs of this Section 25.7, upon expiration or termination of this Agreement, [***]. 26. Change of Control.

26.1 Competing Providers. This Section 26 will only apply in the event of a Change of Control to a Competing Provider or its Affiliate.

26.2 Removal of Data. [***].

26.3 De-identified Data. As of the consummation of a Competitive Change of Control, [***].

26.4 No Obligation. As of the consummation of a Competitive Change of Control, Allscripts will be under no obligation to provide the Company (or, for the avoidance of doubt, any Company Acquiror or Competing Provider) with any Data, except Data necessary for Company to fulfill its obligations under its Merchant Agreements with such customers and to fulfill any of its obligations hereunder for the duration of the applicable Customer Agreements.

26.5 Support. Notwithstanding anything in this Agreement to the contrary, as of the consummation of a Competitive Change of Control, Allscripts will have the right, in its sole discretion, to assume the provision of Level 1 Support Services to Sublicensed Customers and to become the first direct point of contract for each Sublicensed Customer for support and maintenance matters hereunder. A Competitive Change of Control will not release the Company from any of its obligations under this Agreement, including its obligations to provide Support Services. 27. Survival.

27.1 Survival. The provisions of Sections 1, 2.5-2.7, 8.4-8.6, 8.8, 16.8, 18-25, 27, and 28 and Exhibit E (Business Associate Agreement), Exhibit F (Buy Rates and Revenue Share) and Exhibit H (List of Legacy Customers) will survive and continue after the expiration or termination of this Agreement indefinitely. The provisions of the Restated Developer Agreement set forth in its Survival provision will survive the expiration or termination of the Restated Developer Agreement or this Agreement indefinitely. The provisions of Sections 2.1(c)-(d), 2.3, 4.2, 4.3, 8.1-8.3, 8.7, 10, 11.3, and 12-17 (excluding Sections 14.4 and 17.4, each of which will survive for the duration set forth therein; and Sections 14.6, 16.1 and 16.8), Exhibit C (Services) and Exhibit D (Service Level Agreement) will survive and continue after the expiration or termination of this Agreement for the full duration of any Customer Agreement. In addition, the rights and obligations of any Party which, by their nature, extend beyond the expiration or termination of this Agreement will continue in full force and effect notwithstanding the termination of this Agreement. 30





28. Miscellaneous.

28.1 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever, except as expressly set forth in this Agreement.

28.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder will be in writing and addressed to a Party at the address set forth under such Party's name on the signature page hereto (or as otherwise specified by a Party in a notice given in accordance with this Section 28.2). Notices sent in accordance with this Section 28.2 will be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); or (b) when received, if sent by a nationally recognized overnight courier (receipt requested).

28.3 Interpretation. For purposes of this Agreement, (a) the words include, includes, and including will be deemed to be followed by the words without limitation; (b) the word or is not exclusive; and (c) the words herein, hereof, hereby, hereto, and hereunder refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the sections of, and exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing an instrument to be drafted. The Exhibits referred to herein will be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.

28.4 Assignment. Neither Party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily or involuntarily, without the other Party's prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any assignment, delegation, or other transfer without such prior written consent will be null and void. Notwithstanding the foregoing (and subject to Section 25 and 26) either Party may assign this Agreement without the consent of the other Party as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

28.5 No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties, their respective permitted successors and assigns, and the Persons indemnified in Section 22, and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

28.6 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 31





28.7 Severability. If any provision of this Agreement or the application thereof to any Party or circumstances is declared void, illegal, or unenforceable, then the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable Law. In such event, the Parties will use their reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable Law, achieves the purposes intended under the invalid or unenforceable provision.

28.8 Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of Illinois applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions.

28.9 Dispute Resolution.

(a) Except as expressly permitted in Section 28.9(f), neither Party will initiate an arbitration of any dispute hereunder unless (i) such Party has provided the other Party with written notice of that dispute with reasonable specificity and attempted in good faith to resolve that dispute through negotiations; (ii) despite such efforts, the dispute remains unresolved [***] after receipt of that notice; and (iii) such initiation is in accordance with this Section 28.9.

(b) Subject to the foregoing, any dispute arising out of, relating to, or in connection with this Agreement which cannot be settled amicably will be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution (CPR) Rules for Non-Administered Arbitration by a panel of three arbitrators, of which each Party will designate one arbitrator in accordance with the screened appointment procedure provided in Rule 5.4 thereof. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. sec. 1 et seq. Arbitration awards will be final and binding upon the Parties, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The place of the arbitration will be Chicago, Illinois. All aspects of the arbitration and any award will be confidential (subject to the exceptions set forth in Section 19.3).

(c) The arbitrators will have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a dispute; provided, however, that the arbitrators will have no power or authority to award damages that would be inconsistent with Section 23 of this Agreement.

(d) In any arbitration under this Section 28.9, the arbitrators will set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing each Party to such dispute an opportunity, adequate in the sole judgment of the arbitrators, to discover relevant information from the other Party about the subject matter of the dispute. The arbitrators will rule upon motions to compel or limit discovery and will have the authority to impose sanctions for discovery abuses, including attorneys' fees and costs, to the same extent as a competent court of law or equity, should the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification.

(e) Each Party will pay its own costs and expenses (including counsel fees) of any arbitration; provided, however, that the Parties will equally share the fees and expenses of the arbitrators; provided, further, that in the event any action, suit, arbitration, or other proceeding is instituted or commenced by either Party against the other Party arising hereunder, the prevailing Party will be entitled to recover its reasonable attorneys' fees, court costs, and costs of arbitration from the non-prevailing Party (it being agreed that the arbitrators and/or judge may eliminate or reduce such recovery on the grounds that it is unreasonable or disproportionate to the harm suffered). 32





(f) Notwithstanding anything else in this Section 28.9 to the contrary, either Party may apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. For such purpose, each Party irrevocably consents to the exclusive jurisdiction and venue of any Federal court within Cook County, Illinois, and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and venue.

28.10 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.

28.11 Equitable Relief. Each Party acknowledges that a breach by a Party of this Agreement may cause the non-breaching Party immediate and irreparable harm, for which an award of damages may not be adequate compensation and agrees that notwithstanding Section 28.9(b), in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including in the form of orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction or the arbitration panel, provided that following the formation of the arbitration panel pursuant to Section 28.9(b), such relief will only be sought from the arbitration panel. The Parties hereby waive any requirement for the securing or posting of any bond in connection with such relief. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available under this Agreement, at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

28.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. Federal ESIGN Act of 2000) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

28.13 Entire Agreement. This Agreement, together with all Exhibits, and the BAA, constitutes the sole and entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter, including, without limitation, the Developer Agreement. [***].

[Signature Page Follows] 33





IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. Allscripts Healthcare, LLC Phreesia, lnc.

By: /s/ Richard Elmore By: /s/ Thomas Altier Name: Richard Elmore Name: Thomas Altier Title: SVP Title: CFO

Address for Notices: Address for Notices:

[***] [***]

Attention: SVP, Corporate Development and Strategy Attn: Chief Executive Officer

With a copy (which will not constitute notice) to: With a copy (which will not constitute notice) to:

[***] [***]

Attention: General Counsel Attn: Chief Financial Officer

Signature Page to Strategic Alliance Agreement





EXHIBIT A

Description of Eligibility Benefits Services, POS Dashboard, Phreesia Patient Intake Management Offering and Merchant Processing Services

[***]





EXHIBIT B

Product Development Plan

[***]





EXHIBIT C

Services

[***]





EXHIBIT D

Service Level Agreement

[***]





EXHIBIT E

Form of HIPAA Business Associate Agreement

[***]





EXHIBIT F

Buy Rates and Revenue Share

[***]





EXHIBIT G

Amended and restated Allscripts Developer Program Agreement

[***]





EXHIBIT H

List of Legacy Customers

[***]





EXHIBIT I

Company's Trademark Use Guidelines and Instructions

[***]





EXHIBIT J

Merchant Agreement

[***]





EXHIBIT K

Merchant Application

[***]





EXHIBIT L

Disaster Recovery Plan

[***] 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

SOLUTION:
60882