Opt-Out Point
Percentage of Sublicense Income
After the First Opt-Out Milestone and prior to the Second Opt-Out Milestone
[]%*
After the Second Opt-Out Milestone
[]%*
For purposes of clarity, if Alnylam exercises its Opt-Out Option Cubist's
payment obligations under Sections 4.7(a)(vi), 4.7(a)(vii) and
4.7(a)(viii) shall apply with respect to development and sales milestones
achieved, and the Net Sales of Licensed Products sold, by Cubist and its
Affiliates in such country(ies) in North America.
(X)
THE JSC AND JCT SHALL BE DISSOLVED, AND,
EXCEPT AS SET FORTH IN ARTICLE VI, ALL DECISIONS REGARDING DEVELOPMENT,
COMMERCIALIZATION AND MANUFACTURE OF LICENSED PRODUCT SHALL BECOME SUBJECT TO
CUBIST'S FINAL DECISION-MAKING AUTHORITY, EXCEPT THAT:
(A) CUBIST MAY NOT
CONDUCT, SPONSOR, FUND OR OTHERWISE SUPPORT A CLINICAL STUDY OR POST-APPROVAL
STUDY OF LICENSED PRODUCT THAT WOULD []* THE DEVELOPMENT OR COMMERCIALIZATION OF
LICENSED PRODUCT IN THE FIELD IN ASIA, WITHOUT ALNYLAM'S PRIOR WRITTEN CONSENT,
(B) CUBIST MAY NOT RESOLVE ANY DISPUTE AS TO WHAT CONSTITUTES DILIGENT EFFORTS
OR AS TO WHETHER THE FIRST OPT-OUT MILESTONE OR THE SECOND OPT-OUT MILESTONE HAS
BEEN ACHIEVED, AND (C) CUBIST MAY NOT UNILATERALLY AMEND THIS AGREEMENT.
(XI)
THIS AGREEMENT SHALL OTHERWISE REMAIN IN EFFECT.
(XII)
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS
SECTION 4.7(A), IF (1) ALNYLAM EXERCISES THE OPT-OUT OPTION AFTER THE SECOND
OPT-OUT MILESTONE AND (2) []*, THEN:
A.
CUBIST SHALL PROMPTLY PROVIDE ALNYLAM WITH
A COPY OF SUCH []* AND WITH A SUMMARY OF ALL RELEVANT INFORMATION RELATING TO
SUCH []*;
B.
ADDITIONALLY, CUBIST SHALL PROVIDE
ALNYLAM WITH SUCH ADDITIONAL INFORMATION REGARDING SUCH []* AND PLANNED []* AS
ALNYLAM MAY REASONABLY REQUEST;
C.
WITHIN []* AFTER RECEIPT OF THE
INFORMATION AND DOCUMENTS PROVIDED BY CUBIST PURSUANT TO CLAUSE (A); PROVIDED
HOWEVER IN NO EVENT SHALL SUCH TIME PERIOD EXPIRE EARLIER THAN []* AFTER
DELIVERY OF ANY
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
38
INFORMATION REQUESTED BY ALNYLAM PURSUANT TO CLAUSE (B), ALNYLAM SHALL MAKE ONE
OF THE FOLLOWING TWO ELECTIONS AND NOTIFY CUBIST OF SUCH ELECTION:
(I) ELECT TO
ACCEPT THE MILESTONES AND ROYALTIES SET FORTH IN THE COLUMN ENTITLED
"SECTION 4.7(A)(XII) OPTION I" IN SECTIONS 4.7(A)(VI), 4.7(A)(VII) AND
4.7(A)(VIII), IN LIEU OF THE OTHERWISE APPLICABLE OPT-OUT ECONOMICS SET FORTH
ABOVE IN SECTIONS 4.7(A)(VI), 4.7(A)(VII) AND 4.7(A)(VIII) (PROVIDED THAT SUCH
REDUCED ECONOMICS SHALL REMAIN SUBJECT TO THE APPLICABLE PROVISIONS OF
SECTION 7.9 REFERENCED IN SECTION 4.7(A)(VIII)) OR (II) AGREE TO FUND []*
PERCENT ([]*%) OF THE []*, IN WHICH CASE THERE SHALL BE NO REDUCTION TO THE
APPLICABLE OPT-OUT ECONOMICS SET FORTH ABOVE IN SECTIONS 4.7(A)(VI),
4.7(A)(VII) AND 4.7(A)(VIII);
D.
IF ALNYLAM MAKES THE ELECTION SET FORTH IN
CLAUSE (C)(I) ABOVE AND CUBIST SUBSEQUENTLY ACHIEVES A []* PROVIDED TO ALNYLAM
BY CUBIST PURSUANT TO CLAUSE (A) ABOVE, CUBIST SHALL NOTIFY ALNYLAM OF SUCH
OCCURRENCE PROMPTLY AFTER RECEIPT OF SUCH []* AND ALNYLAM SHALL THEREAFTER HAVE
AN OPTION, EXERCISABLE BY PROVIDING CUBIST WITH NOTICE OF SUCH EXERCISE WITHIN
[]* AFTER ALNYLAM'S RECEIPT OF CUBIST'S NOTIFICATION, TO PAY CUBIST []* PERCENT
([]*%) OF THE