REPORTS AND PAYMENTS REQUIRED BY SECTIONS 4.4, 4.5, 4.7,
7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 AND 7.11.
EACH PARTY WILL HAVE THE
RIGHT []* AT ITS OWN EXPENSE TO HAVE AN INDEPENDENT, CERTIFIED PUBLIC
ACCOUNTANT, SELECTED BY SUCH PARTY AND REASONABLY ACCEPTABLE TO THE OTHER PARTY,
REVIEW ANY SUCH RECORDS OF THE OTHER PARTY IN THE LOCATION(S) WHERE SUCH RECORDS
ARE MAINTAINED BY THE OTHER PARTY UPON REASONABLE NOTICE AND DURING REGULAR
BUSINESS HOURS AND UNDER OBLIGATIONS OF CONFIDENCE, FOR THE SOLE PURPOSE OF
VERIFYING THE BASIS AND ACCURACY OF PAYMENTS MADE UNDER SECTIONS 4.4, 4.5, 4.7,
7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 AND 7.11 WITHIN THE PRIOR []*
PERIOD.
IF THE REVIEW OF SUCH RECORDS REVEALS THAT THE OTHER PARTY HAS FAILED
TO ACCURATELY REPORT INFORMATION PURSUANT TO SECTIONS 4.4, 4.5, 4.7, 7.2, 7.3,
7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 AND 7.11, THEN THE OTHER PARTY SHALL PROMPTLY
PAY TO THE AUDITING PARTY ANY RESULTING AMOUNTS DUE UNDER SUCH SECTIONS,
TOGETHER WITH INTEREST CALCULATED IN THE MANNER PROVIDED IN SECTION 7.17.
IF
ANY SUCH DISCREPANCIES ARE GREATER THAN FIVE PERCENT (5%) OF THE AMOUNTS
ACTUALLY DUE FOR ANY CALENDAR QUARTER UNDER SECTIONS 4.4, 4.5, 4.7, 7.2, 7.3,
7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10
AND 7.11, THE OTHER PARTY SHALL PAY ALL OF
THE COSTS OF SUCH REVIEW.
SECTION 7.13
TAX MATTERS.
(A)
CUBIST WILL MAKE ALL PAYMENTS TO ALNYLAM
UNDER THIS AGREEMENT WITHOUT DEDUCTION OR WITHHOLDING EXCEPT TO THE EXTENT THAT
ANY SUCH DEDUCTION OR WITHHOLDING IS REQUIRED BY APPLICABLE LAW TO BE MADE ON
ACCOUNT OF TAXES (AS THAT TERM IS DEFINED IN SECTION 7.13(E) BELOW).
(B)
ANY TAX REQUIRED TO BE WITHHELD UNDER
APPLICABLE LAW ON AMOUNTS PAYABLE UNDER THIS AGREEMENT WILL PROMPTLY BE PAID BY
CUBIST ON BEHALF OF ALNYLAM TO THE APPROPRIATE GOVERNMENTAL AUTHORITY, AND
CUBIST WILL FURNISH ALNYLAM WITH PROOF OF PAYMENT OF SUCH TAX.
ANY SUCH TAX
REQUIRED TO BE WITHHELD WILL BE AN EXPENSE OF AND BORNE BY ALNYLAM.
CUBIST WILL
GIVE NOTICE OF ITS INTENTION TO BEGIN WITHHOLDING ANY SUCH TAX IN ADVANCE AND
COOPERATE TO USE REASONABLE AND LEGAL EFFORTS TO REDUCE SUCH TAX ON PAYMENTS
MADE TO ALNYLAM HEREUNDER.
(C)
CUBIST AND ALNYLAM WILL COOPERATE WITH
RESPECT TO ALL DOCUMENTATION REQUIRED BY ANY RELEVANT GOVERNMENT AUTHORITY OR
REASONABLY REQUESTED BY CUBIST TO SECURE A REDUCTION IN THE RATE OF APPLICABLE
WITHHOLDING TAXES.
(D)
IF CUBIST HAD A DUTY TO WITHHOLD TAXES IN
CONNECTION WITH ANY PAYMENT IT MADE TO ALNYLAM UNDER THIS AGREEMENT BUT CUBIST
FAILED TO WITHHOLD, AND SUCH TAXES WERE ASSESSED AGAINST AND PAID BY CUBIST,
THEN ALNYLAM WILL INDEMNIFY AND HOLD HARMLESS CUBIST FROM AND AGAINST SUCH TAXES
(INCLUDING INTEREST).
IF CUBIST MAKES A CLAIM UNDER THIS SECTION 7.13(D), IT
WILL COMPLY WITH THE OBLIGATIONS IMPOSED BY SECTION 7.13(B) AS IF CUBIST HAD
WITHHELD TAXES FROM A PAYMENT TO ALNYLAM.
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
56
(E)
SOLELY FOR PURPOSES OF