TO THE EFFECTIVE
DATE HAVE BEEN REPORTED IN OR ARE TO BE REPORTED IN ASTRAZENECA'S FORMAL AUDITED
FINANCIAL STATEMENTS (AS CERTIFIED BY OR TO BE CERTIFIED BY ASTRAZENECA'S
ACCOUNTING FIRM).
(VI)
TO THE ACTUAL KNOWLEDGE OF THE AZ KNOWLEDGE GROUP, THE INFORMATION
REGARDING PRODUCT INVENTORY AND PRODUCT RETURNS, IN EACH CASE WITH RESPECT TO
THE TERRITORY, PROVIDED BY ASTRAZENECA TO CUBIST IN WRITING PRIOR TO THE
EFFECTIVE DATE ARE TRUE AND CORRECT.
(VII)
ANY IN-LICENSE AGREEMENTS BETWEEN ASTRAZENECA OR ANY OF ITS
AFFILIATES AND ANY THIRD PARTY WITH RESPECT TO THE PRODUCT ARE VALID AND IN
FORCE.
(VIII)
THAT COPY OF THAT CERTAIN LETTER AGREEMENT BETWEEN ASTRAZENECA UK
AND ASTRAZENECA DATED AS OF JUNE 26, 2008 PROVIDED TO CUBIST ON OR BEFORE THE
EFFECTIVE DATE IS TRUE AND CORRECT AND SUCH LETTER AGREEMENT IS IN FULL FORCE
AND EFFECT AS OF THE EFFECTIVE DATE.
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
58
(IX)
THAT CERTAIN []*.
(X)
NEITHER ASTRAZENECA NOR ANY OF ITS AFFILIATES HAS GRANTED ANY
(SUB)LICENSE TO ANY THIRD PARTY TO SELL ANY PRODUCT (OTHER THAN PRODUCT SOLD BY
ASTRAZENECA OR ITS AFFILIATES) IN THE TERRITORY.
(XI)
DURING THE PERIOD FROM []* THROUGH THE EFFECTIVE DATE,
ASTRAZENECA AND ITS AFFILIATES HAVE CONDUCTED THE SALE OF THE PRODUCT IN THE
TERRITORY IN THE ORDINARY COURSE AND SUBSTANTIALLY CONSISTENT WITH PAST PRACTICE
WITH RESPECT TO THE PRODUCT IN THE TERRITORY.
14.2
AstraZeneca Indemnification.
(A)
WITHOUT LIMITATION OF SECTION 14.2(B), ASTRAZENECA SHALL INDEMNIFY
CUBIST, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS (THE "CUBIST INDEMNIFIED PARTIES"), AND DEFEND AND SAVE
EACH OF THEM HARMLESS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES,
LIABILITIES, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES
AND DISBURSEMENTS) (COLLECTIVELY, "LOSSES") INCURRED BY ANY OF THEM IN
CONNECTION WITH, ARISING FROM OR OCCURRING AS A RESULT OF ANY SUIT,
INVESTIGATION, OR CLAIM BY, OR DEMAND OF, A THIRD PARTY (A "THIRD PARTY CLAIM")
(INCLUDING FOR DEATH, PERSONAL INJURY OR PRODUCT LIABILITY) ARISING FROM (I) THE
BREACH BY ASTRAZENECA OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING
THIS SECTION 14.2), (II) THE BREACH OR INACCURACY OF ANY REPRESENTATION OR
WARRANTY MADE BY ASTRAZENECA IN THIS AGREEMENT, (III) THE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF ANY ASTRAZENECA INDEMNIFIED PARTIES IN CONNECTION WITH
THE PERFORMANCE OF ASTRAZENECA'S OBLIGATIONS UNDER THIS AGREEMENT, (IV) THE
MANUFACTURE, DISTRIBUTION, PROMOTION, MARKETING, USE, IMPORT, SALE, OFFER FOR
SALE OR OTHER COMMERCIALIZATION OF THE PRODUCT BY OR ON BEHALF OF ASTRAZENECA OR
ANY OF ITS AFFILIATES IN THE TERRITORY (INCLUDING ANY DEATH, PERSONAL INJURY OR
PRODUCT LIABILITY) (BUT, WITH RESPECT TO SUBSECTION (IV), FOR CLARITY (A) NOT
FROM THE CUBIST PROGRAM ACTIVITIES OR ANY OTHER ACTIONS OR OMISSIONS BY OR ON
BEHALF OF CUBIST OR ANY OF ITS AFFILIATES AND (B) WITHOUT LIMITATION OF
SECTION 14.2(B)), (V) ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF
ANY THIRD PARTY INTELLECTUAL PROPERTY ARISING FROM THE COMMERCIALIZATION OF THE
PRODUCT IN THE TERRITORY (INCLUDING USE OF ANY PRODUCT TRADEMARK OR