Common use of Royalties Payable By Merck Clause in Contracts

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK shall pay to ARRIS royalties during each Calendar Year on a country-by-country basis: (a) if the Licensed Product is covered by a Valid Patent Claim in the country of sale, then: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries. Royalties on each Licensed Product at the rates set forth above shall be effective as of the date of First Commercial Sale of Licensed Product in a country and shall continue until either (i) the expiration of the last applicable patent on such Licensed Product in such country in the case of sales under Subsection 5.4.1(a) above or (ii) until the [***] in such country in the case of sales of Licensed Product under Subsection 5.4.1(b) above, in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and conditions of this --------------------------- Agreement, MERCK Merck shall pay to ARRIS CytRx royalties during for Licensed Target Product(s) for each Calendar Year Target on a country-by-country basisbasis in an amount equal to: (a) if For Net Sales by Merck, its Affiliates or sublicensees of Licensed Target Products which would, but for the Licensed Product is covered by license hereunder, infringe a Valid Patent Claim in the country of manufacture or sale, thenroyalties based on the following annual Net Sales aggregated separately for each Licensed Target Product: (ia) an amount For annual Net Sales up to two hundred fifty million dollars ($250,000,000) a royalty of two percent (2%); (b) For that portion of annual Net Sales exceeding two hundred fifty million dollars ($250,000,000) but less than or equal to [***] five hundred million dollars ($500,000,000) a royalty of the three percent (3%); (c) For that portion of annual Net Sales exceeding five hundred million dollars ($500,000,000) a royalty of such Licensed Products in such countries, until the total annual four percent (4%). (b) For Net Sales of Licensed Target Products by MERCKMerck, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a4.4.1(a) above:, a royalty calculated as set forth in Article 4.4.1(a), for a period of five (5) years from First Commercial Sale in each country of the Territory. (ic) an amount equal In addition to [***] of the patent royalty payments set forth in Article 4.4.1, Merck shall pay a one percent (1%) royalty on Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCKMerck, its Affiliates or sublicensees equals [***]; on any Licensed Product which would, but for the license hereunder, infringe a Valid Patent Claim in the country of manufacture or sale in the event (iii) for that amount of annual Net Sales of Licensed Products no other patents owned by MERCKor licensed to Merck, its Affiliates or sublicensees greater than [***] are infringed by such sale, including but not limited to any composition of matter patent and less than or equal to [***], an amount equal to [***] (ii) there is no Competitive Product in the country of such Net Sales in such countries; andsale. (iiid) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries. Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of a Licensed Product in a country and shall continue until either (i) the expiration of the last applicable patent on such Licensed Product in such country in the case of sales under Subsection 5.4.1(a4.4.1(a) and 4.4.1(c) (if applicable) above or (ii) until the [***] fifth (5th) anniversary of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection 5.4.1(b4.4.1(b) above, in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK Merck shall pay to ARRIS Metabasis royalties during each Calendar Year on a country-by-country basisbasis in an amount equal to: (a) if [***] of Net Sales of Products by Merck and its Related Parties; provided that either: (i) the Licensed [***] of the Product is covered by would, but for the licenses granted hereunder, infringe a Valid Patent Claim in the country of sale; or (ii) the [***] of the Product would, but for the licenses granted hereunder, infringe a Valid Patent Claim in the country of sale, then: (i) an amount equal to [***] but only for so long as gross sales of the Net Sales Competitive Products of such Licensed Products Product in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals country have not [***]; (ii; provided further that in the event that Merck has exercised its option for continued Exclusive Efforts in accordance with Section 2.10, the royalty rate for sales subject to this subsection 5.5.1(a) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal shall be adjusted to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to be [***] of such Net Sales in such countriesof Products; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCKMerck and its Related Parties for sales other than those covered in subsection 5.5.1(a); provided that in the event that Merck has exercised the option for continued Exclusive Efforts in accordance with Section 2.10, its Affiliates or sublicensees equals [***]; (iithe royalty rate for sales subject to this subsection 5.5.1(b) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal shall be adjusted to [***], an amount equal to be [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countriesProducts. Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of Licensed Product in a country and shall continue until either either: (i) in the case of Net Sales under Section 5.5.1(a)(i), the expiration of the last Valid Patent Claim claiming the [***] of such Product in such country, (ii) in the case of sales under subsection 5.5.1(a)(ii), the earlier of (A) the expiration of the last applicable patent on such Licensed Product in such country in the case of sales under Subsection 5.4.1(a) above or (ii) until Valid Patent Claim claiming the [***] of such Product in such country, and (B) such time as gross sales of Competitive Products of such Product in such country by any non-Related Party [***]; or (iii) in the case of sales of Product under subsection 5.5.1(b), until the tenth (10th) anniversary of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection 5.4.1(b) abovesubsection 5.5.1(b), in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and -------------------------- conditions of this Agreement, MERCK Merck shall pay to ARRIS CytRx royalties during for Licensed Target Product(s) for each Calendar Year Target on a country-by-country basisbasis in an amount equal to: (a) if For Net Sales by Merck, its Affiliates or sublicensees of Licensed Target Products which would, but for the Licensed Product is covered by license hereunder, infringe a Valid Patent Claim in the country of manufacture or sale, thenroyalties based on the following annual Net Sales aggregated separately for each Licensed Target Product: (ia) an amount For annual Net Sales up to two hundred fifty million dollars ($250,000,000) a royalty of two percent (2%); (b) For that portion of annual Net Sales exceeding two hundred fifty million dollars ($250,000,000) but less than or equal to [***] five hundred million dollars ($500,000,000) a royalty of the three percent (3%); (c) For that portion of annual Net Sales exceeding five hundred million dollars ($500,000,000) a royalty of such Licensed Products in such countries, until the total annual four percent (4%). (b) For Net Sales of Licensed Target Products by MERCKMerck, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a4.4.1(a) above:, a royalty calculated as set forth in Article 4.4.1(a), for a period of five (5) years from First Commercial Sale in each country of the Territory. (ic) an amount equal In addition to [***] of the patent royalty payments set forth in Article 4.4.1, Merck shall pay a one percent (1%) royalty on Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCKMerck, its Affiliates or sublicensees equals [***]; on any Licensed Product which would, but for the license hereunder, infringe a Valid Patent Claim in the country of manufacture or sale in the event (iii) for that amount of annual Net Sales of Licensed Products no other patents owned by MERCKor licensed to Merck, its Affiliates or sublicensees greater than [***] are infringed by such sale, including but not limited to any composition of matter patent and less than or equal to [***], an amount equal to [***] (ii) there is no Competitive Product in the country of such Net Sales in such countries; andsale. (iiid) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries. Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of a Licensed Product in a country and shall continue until either (i) the expiration of the last applicable patent on such Licensed Product in such country in the case of sales under Subsection 5.4.1(a4.4.1(a) and 4.4.1(c) (if applicable) above or (ii) until the [***] fifth (5th) anniversary of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection 5.4.1(b4.4.1(b) above, in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK Merck shall pay to ARRIS Metabasis royalties during each Calendar Year on a country-by-country basisbasis in an amount equal to: (a) if the Licensed Product is covered by a Valid Patent Claim in the country of sale, then: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, Merck and its Affiliates or sublicensees equals Related Parties; provided that either: (i) [***];; or (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***]; provided further that in the event that Merck has exercised its option for continued Exclusive Efforts in accordance with Section 2.10, an amount equal the royalty rate for sales subject to [***] [***] indicates material that has been omitted pursuant this subsection 5.5.1(a) shall be adjusted to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to be [***] of such Net Sales in such countriesof Products; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCKMerck and its Related Parties for sales other than those covered in subsection 5.5.1(a); provided that in the event that Merck has exercised the option for continued Exclusive Efforts in accordance with Section 2.10, its Affiliates or sublicensees equals [***]; (iithe royalty rate for sales subject to this subsection 5.5.1(b) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal shall be adjusted to [***], an amount equal to be [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countriesProducts. Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of Licensed Product in a country and shall continue until either either: (i) in the expiration case of the last applicable patent on such Licensed Product in such country Net Sales under Section 5.5.1(a)(i), [***], (ii) in the case of sales under Subsection 5.4.1(asubsection 5.5.1(a)(ii), the earlier of (A) above [***], and (B) such time as [***]; or (iiiii) in the case of sales of Product under subsection 5.5.1(b), until the [***] of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection 5.4.1(b) abovesubsection 5.5.1(b), in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK Merck shall pay to ARRIS Nastech royalties during each Calendar Year on Net Sates of Product on a country-by-country basisbasis in the following amounts: (a) if so long as the Licensed Product is covered by a Valid Patent Claim in the country of sale, then: (i) an amount equal to [***] of the Product subject to such Net Sales of such Licensed Products would, but for the rights granted to Merck by Nastech in such countriesthis Agreement, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals infringe a Valid Patent Claim [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than : [***] and less than or equal to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; andor (iiib) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater Product other than [***], an amount those covered in subsection 5.4.1(a) above Merck shall pay Nastech a royalty equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countriesSales. Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of Licensed Product Products in a country and shall continue until either (i) the expiration of the last applicable patent on Valid Patent Claim which claims such Licensed Product or the Nasal Formulation contained in such country Product [***], but for the rights granted to Merck by Nastech under this Agreement, the [***] of such Product would infringe, in the case of sales under Subsection subsection 5.4.1(a) above ); or (ii) until the [***] of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection subsection 5.4.1(b) above), in each case subject to the following conditions:: [*CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [***], HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] (w) that only one royalty shall be due with respect to the same unit of Product; (x) that no royalties shall be due upon the sale or other transfer among Merck or its Related Parties, but in such cases the royalty shall be due and calculated upon Merck's or its Related Party's Net Sales to the first independent Third Party; (y) no royalties shall accrue on the sale or other disposition of Product by Merck or its related Parties for use in a Clinical Trial; and (z) no royalties shall accrue on the disposition of Product in reasonable quantities by Merck or its Related Parties as samples (promotion or otherwise) or as donations (for example, to non-profit institutions or government agencies for a non-commercial purpose).

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK for each Licensed Product Merck shall pay to ARRIS Transcell royalties during each Calendar Year on a country-by-country basis: (a) if the Merck's activities with respect to a Licensed Product is covered by or Compound would, but for this Agreement, infringe or fall within the scope of a Valid Patent Claim or a supplemental protection certificate in the country of sale, then: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total for annual Net Sales of Licensed Products by MERCKMerck, its Affiliates or sublicensees equals less than or equal to [*], an amount equal to [*] percent [*]] of such Net Sales in such countries; (ii) for that amount of annual Net Sales of Licensed Products by MERCKMerck, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***The information below marked by * and [ ] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material portion has been separately filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates -------------------------------------------------------------------------------- or sublicensees greater than equal to [***], an amount equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to percent [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCKMerck, its Affiliates or sublicensees greater than [*], an amount equal to [*] percent [*] of such Net Sales in such countries; or (b) for sales other than those covered in Subsection 5.4.1(a) above: (i) for annual Net Sales of Licensed Products by Merck, its Affiliates or sublicensees less than or equal to [*], an amount equal to [**] percent [*] of such Net Sales in such countries. ; (ii) for that amount of annual Net Sales of Licensed Products by Merck, its Affiliates or sublicensees greater than [*] and less than or equal to [*], an amount equal to [*] percent [*] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Product by Merck, its Affiliates or sublicensees greater than [*], an amount equal to [*] percent [*] of such Net Sales in such countries Royalties on each Licensed Product at the rates rate set forth above shall be effective as of the date of First Commercial Sale of Licensed Product in a country and shall continue until either (i) the expiration of the last applicable patent on such Licensed Product or Compound in such country in the case of sales under Subsection 5.4.1(a) above or (ii) until the [***] tenth (10th) anniversary of the First Commercial Sale in such country in the case of sales of Licensed Product under Subsection 5.4.1(b) above, in each case subject to the following conditions:

Royalties Payable By Merck. Subject to the terms and conditions of this Agreement, MERCK shall pay to ARRIS NITROMED royalties during on a Licensed Product-by-Licensed Product basis the following amounts. (a) For the initial [**] dollars of sales of each Licensed Product in [**] percent the Territory in a Calendar Year by MERCK, its Affiliates or ([**]%) of sublicensees Net Sales (b) For those sales greater than [**] dollars and less than or equal [**] percent to [**] dollars of each Licensed Product in the Territory in a ([**]%) of Calendar Year by MERCK, its Affiliates or sublicensees Net Sales (c) For those sales greater than [**] dollars and less than or equal [**] percent to [**] dollars of each Licensed Product in the Territory in a ([**]%) of Calendar Year by MERCK, its Affiliates or sublicensees Net Sales (d) For those sales over [**] dollars of each Licensed Product in the [**] percent Territory in a Calendar Year by MERCK, its Affiliates or ([**]%) of sublicensees Net Sales Royalties on each Licensed Product at the rate set forth above shall continue on a country-by-country basis: basis until the expiration of the later of: (ai) if the Licensed Product is covered by last-to-expire patent with a Valid Patent Claim in that would be infringed by the country use or sale of sale, then: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] [***] indicates material that has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries; or (b) for sales in countries other than those covered in Subsection 5.4.1(a) above: (i) an amount equal to [***] of the Net Sales of such Licensed Products in such countries, until the total annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees equals [***]; (ii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***] and less than or equal to [***], an amount equal to [***] of such Net Sales in such countries; and (iii) for that amount of annual Net Sales of Licensed Products by MERCK, its Affiliates or sublicensees greater than [***], an amount equal to [***] of such Net Sales in such countries. Royalties on each Licensed Product at the rates set forth above shall be effective as of the date of First Commercial Sale of Licensed Product in a country and shall continue until either (i) the expiration of the last applicable patent on such Licensed Product in such country in but for the case of sales under Subsection 5.4.1(a) above licenses granted herein; or (ii) until for a period of ten (10) years after First Commercial Sale of such Licensed Product in such country (the "Royalty Period"). In those countries of the Territory where (A) there are no Patent Rights containing a Valid Patent Claim that would be infringed by the use or sale of the Licensed Product in such country, or (B) when the last Valid Patent Claim expires during the Royalty Period, royalties shall be paid at [***] percent of the rates set forth in such country (a) to (d) above (calculated as the last sales made in the case of sales of Licensed Product under Subsection 5.4.1(b) above, in each case Territory for the Calendar Quarter). All royalties are subject to the following conditions: (a) that only one royalty shall be due with respect to the same unit of Licensed Product; (b) that no royalties shall be due upon the sale or other transfer among MERCK, its Affiliates or sublicensees, but in such cases the royalty shall be due and calculated upon MERCK's or its Affiliate's or its sublicense's Net Sales to a Third Party; (c) no royalties shall accrue on the disposition of Licensed Product in reasonable quantities by MERCK, Affiliates or its sublicenses as samples (promotion or otherwise) or as donations (for example, to non-profit institutions or government agencies for a non-commercial purpose); and (d) for purposes of aggregating sales on a Licensed Product-by-Licensed Product basis, a Licensed Product shall include all products [**]