OF THE TERM AND (II) THE DATE WHEN SUCH PARTY SELLS,
ASSIGNS, SUBLICENSES OR OTHERWISE TRANSFERS ALL OF ITS RIGHTS IN THIS AGREEMENT
PURSUANT TO, AND IN ACCORDANCE WITH, THE PROVISIONS OF SECTION 15.6.
1.85.
"ROYALTY RATE" SHALL HAVE THE MEANING ASSIGNED TO SUCH TERM IN
SECTION 7.3(A) HEREOF.
1.86.
"STOCK PURCHASE AGREEMENT" SHALL MEAN THAT CERTAIN STOCK PURCHASE
AGREEMENT, DATED AS OF THE EFFECTIVE DATE, BY AND BETWEEN CUBIST AND THE CHIRON
PARENT COMPANY.
1.87.
"SUPPLY AGREEMENT" SHALL MEAN THAT CERTAIN MANUFACTURING AND SUPPLY
AGREEMENT, DATED AS OF THE EFFECTIVE DATE, BY AND BETWEEN CUBIST AND CHIRON.
1.88.
"TERM" SHALL MEAN THE TERM OF THIS AGREEMENT.
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
11
1.89.
"TERRITORY" SHALL MEAN THE COUNTRIES LISTED IN EXHIBIT D, AND THE
POSSESSIONS AND TERRITORIES OF EACH SUCH COUNTRY.
WHENEVER, IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT, CHIRON'S RIGHTS UNDER THIS AGREEMENT SHALL
TERMINATE WITH RESPECT TO ANY COUNTRY OR COUNTRIES INITIALLY INCLUDED IN THE
DEFINITION OF TERRITORY, ANY REFERENCE IN THIS AGREEMENT TO THE TERM TERRITORY
SHALL, FROM AND AFTER SUCH TERMINATION, BE DEEMED NOT TO REFER TO ANY SUCH
COUNTRY OR COUNTRIES AS TO WHICH CHIRON'S RIGHTS UNDER THIS AGREEMENT HAVE SO
TERMINATED.
1.90.
"TERRITORY SPECIFIC STUDIES" SHALL HAVE THE MEANING MEAN ASSIGNED TO SUCH
TERM IN SECTION 4.3(A).
1.91.
"THIRD PARTY" SHALL MEAN ANY ENTITY OTHER THAN CUBIST OR CHIRON OR AN
AFFILIATE OF EITHER OF THEM.
1.92.
"THIRD PARTY INFRINGEMENT CLAIM" SHALL HAVE THE MEANING ASSIGNED SUCH
TERM IN SECTION 8.5(A).
1.93.
"TRANSFER PRICE" SHALL HAVE THE MEANING ASSIGNED TO SUCH TERM IN
SECTION 7.1 OF THE SUPPLY AGREEMENT.
1.94.
"UNLICENSED PRODUCT" SHALL MEAN, WITH RESPECT TO ANY GIVEN LICENSED
PRODUCT IN ANY GIVEN COUNTRY WITHIN THE TERRITORY, ANY PHARMACEUTICAL
COMPOSITION CONTAINING DAPTOMYCIN THAT (A) IS COMMERCIALLY AVAILABLE IN SUCH
COUNTRY OTHER THAN [*] AND OTHER THAN [*] (B) HAS THE SAME [*], SUCH LICENSED
PRODUCT, AND (C) [*] AS SUCH LICENSED PRODUCT.
IF CHIRON'S RIGHTS UNDER THIS
AGREEMENT ARE EXPANDED TO INCLUDE RIGHTS IN ADDITIONAL DAPTOMYCIN PRODUCTS, THEN
THE FOREGOING DEFINITION OF "UNLICENSED PRODUCT" SHALL BE DEEMED TO BE EXPANDED
TO INCLUDE THOSE FORMULATIONS OF PHARMACEUTICAL COMPOSITIONS CONTAINING
DAPTOMYCIN WHICH HAVE BEEN SO ADDED TO THE SCOPE OF LICENSED PRODUCTS AND THE
MARKETING AND OTHER RIGHTS OF CHIRON UNDER THIS AGREEMENT.
1.95.
"UNLICENSED SALES THRESHOLD" SHALL HAVE THE MEANING ASSIGNED TO SUCH TERM
IN SECTION 7.3(E) HEREOF.
1.96.
"VALID CLAIM" SHALL MEAN (I) AN UNEXPIRED CLAIM OF AN ISSUED PATENT
WITHIN THE CUBIST PATENTS OR JOINT PATENTS WHICH HAS NOT BEEN FOUND TO BE
UNPATENTABLE, INVALID OR UNENFORCEABLE BY A COURT OR OTHER AUTHORITY IN THE
SUBJECT COUNTRY, FROM WHICH DECISION NO APPEAL IS TAKEN OR CAN BE TAKEN; OR
(II) A CLAIM OF A PENDING PATENT APPLICATION WITHIN THE CUBIST PATENTS OR JOINT
PATENTS.
ARTICLE 2.
PRODUCT RIGHTS AND RIGHTS OF FIRST NEGOTIATION
2.1.
PRODUCT RIGHTS. SUBJECT TO AND UPON THE TERMS AND CONDITIONS SET FORTH IN
THIS AGREEMENT, CHIRON