ABOVE, ALNYLAM SHALL NOTIFY CUBIST OF SUCH
OCCURRENCE PROMPTLY AFTER RECEIPT OF SUCH []* AND CUBIST SHALL THEREAFTER HAVE
AN OPTION, EXERCISABLE BY PROVIDING ALNYLAM WITH NOTICE OF SUCH EXERCISE WITHIN
[]* AFTER CUBIST'S RECEIPT OF ALNYLAM'S NOTIFICATION, TO PAY ALNYLAM []* PERCENT
([]*%) OF THE AMOUNT OF THE ADDITIONAL []* ACTUALLY INCURRED BY ALNYLAM IN []*
AND, IF CUBIST EXERCISES SUCH OPTION AND THEREAFTER MAKES SUCH PAYMENT WITHIN
[]* AFTER CUBIST'S RECEIPT OF ALNYLAM'S NOTIFICATION, THE REDUCTION TO CUBIST'S
POST-TERMINATION ECONOMICS SET FORTH IN CLAUSE (C)(I) ABOVE SHALL NOT APPLY; AND
E.
IF CUBIST MAKES THE ELECTION SET FORTH
IN CLAUSE (C)(II) ABOVE, THEN THE JSC SHALL BE RECONSTITUTED AND, []*, ALL
DEVELOPMENT AND MANUFACTURE FOR THE PURPOSES OF DEVELOPMENT OF LICENSED PRODUCT
FOR THE PROFIT-SHARE TERRITORY SHALL AGAIN BE SUBJECT TO THE PROVISIONS OF THIS
AGREEMENT AS IF CUBIST HAD NOT TERMINATED THE AGREEMENT PURSUANT TO
SECTION 11.2. FOR PURPOSES OF CLARITY, (I) []*, THE JSC WILL BE DISSOLVED AGAIN
AND CUBIST WILL, FROM THAT POINT FORWARD, RECEIVE MILESTONES AND ROYALTIES BASED
UPON THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 11.2 AFTER THE SECOND
OPT-OUT MILESTONE AND (II) AT NO TIME SHALL CUBIST RESUME SHARING IN N.A.
PRE-TAX PROFIT OR LOSS.
SECTION 11.5
EFFECT OF EXPIRATION OR TERMINATION; SURVIVAL.
EXPIRATION OR
TERMINATION OF THIS AGREEMENT SHALL NOT RELIEVE THE PARTIES OF ANY OBLIGATION
ACCRUING PRIOR TO SUCH EXPIRATION OR TERMINATION.
ANY EXPIRATION OR TERMINATION
OF THIS AGREEMENT SHALL BE WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY
AGAINST THE OTHER ACCRUED OR ACCRUING UNDER THIS AGREEMENT PRIOR TO EXPIRATION
OR TERMINATION, INCLUDING PAYMENT OBLIGATIONS ARISING PRIOR TO SUCH EXPIRATION
OR TERMINATION.
THE PROVISIONS OF SECTIONS 3.2(A)(II), 3.2(B)(II), 3.2(C)(IV),
3.2(D), 3.3, 3.4, 3.5, 4.3(B), 4.3(C), 9.1, 9.2, 9.3, 10.11, 10.12, 10.13, 11.3
AND 11.4, THIS SECTION 11.5 AND ARTICLES XII AND XIII SHALL SURVIVE ANY
EXPIRATION OR TERMINATION OF THIS AGREEMENT AND ALL OTHER PROVISIONS CONTAINED
IN THIS AGREEMENT THAT BY THEIR EXPLICIT TERMS SURVIVE EXPIRATION OR TERMINATION
OF THIS AGREEMENT, SHALL SURVIVE.
EXCEPT AS SET FORTH IN THIS ARTICLE XI, UPON
TERMINATION OR EXPIRATION OF THIS AGREEMENT ALL OTHER RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT TERMINATE.
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
83
ARTICLE XII
FINAL DECISION-MAKING; DISPUTE RESOLUTION
SECTION 12.1
DISPUTES.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.5, THE
PARTIES SHALL NEGOTIATE IN GOOD FAITH AND USE REASONABLE EFFORTS TO SETTLE ANY
DISPUTE, CONTROVERSY OR CLAIM ARISING FROM, OR RELATED TO, THIS AGREEMENT OR TO
THE BREACH, TERMINATION OR VALIDITY HEREOF (COLLECTIVELY, "DISPUTE").
IN
PARTICULAR, THE CHIEF EXECUTIVE OFFICER OF ALNYLAM AND THE EXECUTIVE OFFICER OF
CUBIST SHALL ATTEMPT TO RESOLVE ALL DISPUTES.
IF THE CHIEF EXECUTIVE OFFICERS
CANNOT REACH AN AGREEMENT REGARDING A DISPUTE, AND A PARTY WISHES TO PURSUE THE
MATTER, EACH SUCH DISPUTE THAT IS NOT AN EXCLUDED CLAIM SHALL BE FINALLY
RESOLVED BY BINDING ARBITRATION UNDER THE THEN-CURRENT COMMERCIAL ARBITRATION
RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") BY ONE OR MORE ARBITRATORS
APPOINTED