filed separately with the
Commission.
28
SECTION 3.3
SUBLICENSING TERMS; LIABILITY.
(A)
EACH SUBLICENSE GRANTED BY A PARTY PURSUANT TO THIS ARTICLE III
SHALL BE SUBJECT AND SUBORDINATE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
AND SHALL CONTAIN TERMS AND CONDITIONS CONSISTENT WITH THOSE IN THIS AGREEMENT.
EACH PARTY SHALL PROMPTLY PROVIDE THE OTHER PARTY WITH A COPY OF THE FULLY
EXECUTED SUBLICENSE AGREEMENT COVERING ANY SUBLICENSE GRANTED HEREUNDER, AND
SUCH SUBLICENSE AGREEMENT SHALL CONTAIN THE FOLLOWING PROVISIONS:
(I) A
REQUIREMENT THAT SUCH SUBLICENSEE SUBMIT APPLICABLE SALES OR OTHER REPORTS TO
THE PARTY GRANTING THE SUBLICENSE TO THE EXTENT NECESSARY OR RELEVANT TO THE
REPORTS REQUIRED TO BE MADE OR RECORDS REQUIRED TO BE MAINTAINED UNDER THIS
AGREEMENT; (II) THE AUDIT REQUIREMENT SET FORTH IN SECTION 7.12; (III) A
REQUIREMENT THAT SUCH SUBLICENSEE COMPLY WITH THE CONFIDENTIALITY AND NON-USE
PROVISIONS OF ARTICLE IX WITH RESPECT TO BOTH PARTIES' CONFIDENTIAL INFORMATION;
AND (IV) ANY OTHER PROVISIONS APPLICABLE TO A SUBLICENSEE REQUIRED UNDER ANY
ALNYLAM IN-LICENSE OR CUBIST IN-LICENSE, AS THE CASE MAY BE, OF WHICH THE OTHER
PARTY IS NOTIFIED IN WRITING.
IF A GRANTING PARTY BECOMES AWARE OF A MATERIAL
BREACH OF ANY SUBLICENSE BY A SUBLICENSEE OF THE RIGHTS GRANTED TO SUCH PARTY
UNDER THIS ARTICLE III, THE GRANTING PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY
OF THE PARTICULARS OF THE SAME AND USE DILIGENT EFFORTS TO ENFORCE THE TERMS OF
SUCH SUBLICENSE.
(B)
EACH PARTY SHALL AT ALL TIMES BE RESPONSIBLE FOR THE PERFORMANCE
OF ITS SUBLICENSEES UNDER THIS AGREEMENT.
SECTION 3.4
JOINT COLLABORATION IP.
SUBJECT TO (I) THE RIGHTS GRANTED TO EACH
PARTY UNDER THIS AGREEMENT, INCLUDING THE EXCLUSIVE LICENSES GRANTED TO CUBIST
UNDER SECTION 3.1, (II) THE OBLIGATIONS OF THE PARTIES' SET FORTH IN
SECTION 10.1 AND (III) THE PAYMENT OBLIGATIONS SET FORTH IN ARTICLE VII, EACH
PARTY SHALL HAVE THE RIGHT TO USE, SELL, KEEP, LICENSE, SUBLICENSE OR ASSIGN ITS
INTEREST IN JOINT COLLABORATION IP AND OTHERWISE UNDERTAKE ALL ACTIVITIES A SOLE
OWNER MIGHT UNDERTAKE WITH RESPECT TO SUCH JOINT COLLABORATION IP WITHOUT THE
CONSENT OF AND WITHOUT ACCOUNTING TO THE OTHER PARTY.
SECTION 3.5
SECTION 365(N) OF THE BANKRUPTCY CODE.
ALL RIGHTS AND LICENSES
GRANTED UNDER OR PURSUANT TO ANY SECTION OF THIS AGREEMENT, INCLUDING
SECTIONS 3.1 AND 3.2 HEREOF, ARE RIGHTS TO "INTELLECTUAL PROPERTY" (AS DEFINED
IN SECTION 101(35A) OF TITLE 11 OF THE UNITED STATES CODE, AS AMENDED (SUCH
TITLE 11, THE "BANKRUPTCY CODE")).
EACH PARTY HEREBY ACKNOWLEDGES THAT
(A) COPIES OF RESEARCH DATA, (B) LABORATORY SAMPLES, (C) PRODUCT SAMPLES AND
INVENTORY, (D) FORMULAS, (E) LABORATORY NOTES AND NOTEBOOKS, (F) DATA AND
RESULTS RELATED TO CLINICAL TRIALS, (G) REGULATORY FILINGS AND APPROVALS,
(H) RIGHTS OF REFERENCE IN RESPECT OF REGULATORY FILINGS AND APPROVALS,
(I) PRE-CLINICAL RESEARCH DATA AND RESULTS, AND (J) MARKETING, ADVERTISING AND
PROMOTIONAL MATERIALS, CONSTITUTE "EMBODIMENTS" OF INTELLECTUAL PROPERTY
PURSUANT TO SECTION 365(N) OF THE BANKRUPTCY CODE.
EACH PARTY AGREES NOT TO
INTERFERE WITH THE OTHER PARTY'S EXERCISE OF RIGHTS AND LICENSES TO INTELLECTUAL
PROPERTY LICENSED HEREUNDER AND