IN THE CASE OF CUBIST AS THE BREACHING
PARTY, A FAILURE TO FULLY PERFORM ITS OBLIGATIONS TO CONDUCT THE REQUIRED LEVEL
OF DETAILING UNDER SECTION 3.1(A) IN A CALENDAR MONTH (IF APPLICABLE) OR
CALENDAR QUARTER, WHICH BREACH REMAINS UNCURED THIRTY (30) CALENDAR DAYS AFTER
WRITTEN NOTICE THEREOF IS GIVEN TO THE BREACHING PARTY (EXCEPT IN THE CASE OF A
BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION []*, THE CURE PERIOD
SHALL BE []* INSTEAD OF THIRTY (30) CALENDAR DAYS).
NOTWITHSTANDING THE
FOREGOING, ASTRAZENECA SHALL NOT HAVE THE RIGHT TO TERMINATE THIS AGREEMENT
PURSUANT TO THIS SECTION 15.2(B)(I) ON THE BASIS OF ISOLATED PROGRAM EMPLOYEE
CONDUCT.
(II)
IMMEDIATELY UPON WRITTEN NOTICE TO THE OTHER PARTY, (A) IF THE
OTHER PARTY FILES IN ANY COURT OR AGENCY, PURSUANT TO ANY STATUTE OR REGULATION
OF ANY STATE OR COUNTRY, A PETITION IN BANKRUPTCY OR INSOLVENCY OR FOR
REORGANIZATION OR FOR AN ARRANGEMENT OR FOR THE APPOINTMENT OF A RECEIVER OR
TRUSTEE OF THAT PARTY OR OF ITS ASSETS; (B) IF THE OTHER PARTY PROPOSES A
WRITTEN AGREEMENT OF COMPOSITION OR EXTENSION OF ITS DEBTS; (C) IF THE OTHER
PARTY SHALL BE SERVED WITH AN INVOLUNTARY PETITION AGAINST IT, FILED IN ANY
INSOLVENCY PROCEEDING, AND SUCH PETITION SHALL NOT BE DISMISSED WITHIN SIXTY
(60) CALENDAR DAYS AFTER THE FILING THEREOF; (D) IF THE OTHER PARTY CONSENTS TO
THE APPOINTMENT OR TAKING POSSESSION BY A RECEIVER, LIQUIDATOR, ASSIGNEE,
CUSTODIAN, TRUSTEE, SEQUESTRATOR (OR SIMILAR OFFICIAL) OF SUCH PARTY OR FOR ANY
SUBSTANTIAL PART OF ITS PROPERTY OR
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
64
MAKE ANY ASSIGNMENT FOR THE BENEFIT OF CREDITORS; (E) IF THE OTHER PARTY ADMITS
IN WRITING ITS INABILITY TO PAY ITS DEBTS GENERALLY AS THEY BECOME DUE; OR
(F) IF ANY JUDGMENT, WRIT, WARRANT OF ATTACHMENT OR EXECUTION OR SIMILAR PROCESS
SHALL BE ISSUED OR LEVIED AGAINST PROPERTY OF THE OTHER PARTY WHICH REPRESENTS A
SUBSTANTIAL PORTION OF ITS PROPERTY.
(III)
IN THE EVENT THAT CUBIST CEASES TO PROMOTE CUBICIN IN THE
TERRITORY, BY WRITTEN NOTICE TO THE OTHER PARTY, EFFECTIVE AS OF THE LATER OF
(A) THE DATE ON WHICH SUCH NOTICE IS PROVIDED, AND (B) THE DATE ON WHICH CUBIST
CEASES TO PROMOTE CUBICIN IN THE TERRITORY.
(IV)
UPON AT LEAST []* PRIOR WRITTEN NOTICE TO THE OTHER PARTY,
PROVIDED THAT THE EFFECTIVE DATE OF SUCH TERMINATION SHALL BE NO EARLIER THAN
JANUARY 1, 2010.
(C)
THIS AGREEMENT MAY BE TERMINATED BY ASTRAZENECA PURSUANT TO ANY OF
THE FOLLOWING CLAUSES:
(I)
UPON THIRTY (30) CALENDAR DAYS' PRIOR WRITTEN NOTICE TO CUBIST,
IF, FOR []* CONSECUTIVE CALENDAR QUARTERS, GROSS SALES FOR EACH SUCH CALENDAR
QUARTER DO NOT EXCEED []* OF QUARTERLY BASELINE SALES FOR SUCH CALENDAR QUARTER.
(II)
IMMEDIATELY UPON WRITTEN NOTICE TO CUBIST, IF (A) ASTRAZENECA
WITHDRAWS THE PRODUCT FROM THE MARKET IN THE TERRITORY, (B) ASTRAZENECA IS
REQUIRED OR DETERMINES, FOR SAFETY OR EFFICACY REASONS, TO RESTRICT THE APPROVED
INDICATIONS FOR THE PRODUCT IN THE TERRITORY OR (C) ANY GOVERNMENT ENTITY,