equal to $[]*
and less than $[]*
$
[]
*
greater than or equal to $[]*
and less than $[]*
$
[]
*
less than $[]*
$
4
III.
CALCULATION OF QUARTERLY AMOUNT DUE FOR THE SIX MONTH PERIOD.
EXHIBIT A IS HEREBY AMENDED SO THAT "QUARTERLY AMOUNT DUE" IS DEFINED, SOLELY
FOR PURPOSES OF THE CALENDAR QUARTERS IN THE SIX MONTH PERIOD, AS FOLLOWS:
"QUARTERLY AMOUNT DUE" MEANS, SUBJECT TO SECTION 6.2(A) AND (F), (A) FOR THE
FIRST CALENDAR QUARTER OF CALENDAR YEAR 2010, []*, AND (B) FOR THE SECOND
CALENDAR QUARTER OF CALENDAR YEAR 2010, []*.
BY WAY OF ILLUSTRATION, []* SALES
DURING THE SIX MONTH PERIOD ARE []*, THEN CUBIST SHALL RECEIVE []* FOR THE FIRST
CALENDAR QUARTER OF 2010, AND []* FOR THE SECOND CALENDAR QUARTER OF 2010, FOR A
TOTAL PAYMENT TO CUBIST EQUAL TO []*.
FOR CLARITY, THE INVOICING AND TIMING OF
THE QUARTERLY AMOUNT DUE PAYMENTS SHALL BE IN ACCORDANCE WITH SECTION 6.2(B) OF
THE AGREEMENT.
IV.
2009 SIGNIFICANT MARKET EVENTS.
IF CUBIST DESIRES AN ADJUSTMENT
TO ANNUAL BASELINE SALES FOR 2009 PURSUANT TO SECTION 6.1(B) OF THE AGREEMENT
DUE TO A SIGNIFICANT MARKET EVENT, CUBIST SHALL REQUEST SUCH ADJUSTMENT IN
WRITING NO LATER THAN JANUARY 31, 2010.
IF CUBIST SO REQUESTS AN ADJUSTMENT TO
ANNUAL BASELINE SALES FOR 2009, THEN ASTRAZENECA MAY TERMINATE THE AGREEMENT
EFFECTIVE IMMEDIATELY BY WRITTEN NOTICE OF TERMINATION UNDER THIS PARAGRAPH IV
TO CUBIST AT ANY TIME ON OR AFTER THE DATE OF SUCH REQUEST, BUT NO LATER THAN
FEBRUARY 14, 2010.
IN THE EVENT THE AGREEMENT IS TERMINATED PURSUANT TO THIS
PARAGRAPH IV, []*.
V.
EXPIRATION OF AGREEMENT AS OF JUNE 30, 2010.
NOTWITHSTANDING
SECTION 6.1(A) AND THE FACT THAT THE []*, THE AGREEMENT SHALL NOT TERMINATE
PURSUANT TO SECTION 6.1(A) []*.
SECTION 15.1 OF THE AGREEMENT IS HEREBY AMENDED
SO THAT THE LANGUAGE THEREIN IS REPLACED WITH THE FOLLOWING LANGUAGE:
"THE TERM
OF THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE DATE AND SHALL CONTINUE
THROUGH JUNE 30, 2010, UNLESS EARLIER TERMINATED PURSUANT TO SECTION 15.2 OR ANY
OTHER APPLICABLE PROVISION OF THIS AGREEMENT (THE "TERM"), PROVIDED THAT,
BEGINNING NO LATER THAN []*, 2010, ASTRAZENECA AND CUBIST SHALL NEGOTIATE []*
THE MANNER IN WHICH CUBIST IS TO BE COMPENSATED FOR ACTIVITIES TO BE PERFORMED
BY CUBIST DURING THE PERIOD FROM JULY 1 THROUGH DECEMBER 31, 2010, AND IF THE
PARTIES REACH AGREEMENT ON SUCH TERMS ON OR PRIOR TO MAY 1, 2010, THE TERM SHALL
BE
*Confidential Treatment Requested.
Omitted portions filed with the Commission.
2
EXTENDED UNTIL DECEMBER 31, 2010, UNLESS FURTHER EXTENDED BY MUTUAL WRITTEN
AGREEMENT OF ASTRAZENECA AND CUBIST."
VI.
REPORTING AND AUDIT RIGHTS.
IN LIGHT OF THE BASIS FOR CALCULATING
THE ANNUAL AMOUNT DUE FOR THE SIX MONTH PERIOD, ASTRAZENECA SHALL HAVE NO
OBLIGATION TO REPORT, AND CUBIST SHALL HAVE NO RIGHT TO AUDIT, THE []* WITH
RESPECT TO THE SIX MONTH PERIOD; PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT,
ASTRAZENECA SHALL CONTINUE TO HAVE THE OBLIGATION TO REPORT, AND CUBIST