67
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
2
15.4
ACCRUED RIGHTS; SURVIVING OBLIGATIONS
67
15.5
RETURN OF ALL MATERIALS
67
ARTICLE XVI - MISCELLANEOUS
68
16.1
DISPUTE RESOLUTION
68
16.2
GOVERNING LAW, JURISDICTION, VENUE AND SERVICE OF PROCESS
70
16.3
FORCE MAJEURE
70
16.4
WAIVER
70
16.5
NOTICES
71
16.6
ENTIRE AGREEMENT
72
16.7
SUCCESSORS; ASSIGNS; SUBCONTRACTING
72
16.8
EXHIBITS
73
16.9
COUNTERPARTS
73
16.10
SEVERABILITY
73
16.11
AFFILIATES
73
16.12
EXPENSES
73
16.13
FURTHER ASSURANCES
74
16.14
CONSTRUCTION
74
16.15
NO JOINT VENTURE
74
EXHIBITS
EXHIBIT A
ANNUAL AND QUARTERLY BASELINE SALES AND EXAMPLE OF CALCULATION OF ANNUAL AMOUNT
DUE
EXHIBIT B-1
SPECIFIC CUBIST BUSINESS POLICIES
EXHIBIT B-2
SPECIFIC AZ BUSINESS POLICIES
EXHIBIT C
CSD ACTIVITIES
EXHIBIT D
SPEAKER PROGRAM PROCEDURES
EXHIBIT E
INITIAL DESIGNATED MEDICAL AFFAIRS REPRESENTATIVES
EXHIBIT F-1
INITIAL SALES TRAINING PLAN
EXHIBIT F-2
INITIAL CSD TRAINING PLAN
EXHIBIT G-1
CUBIST TRADEMARKS
EXHIBIT G-2
ASTRAZENECA HOUSEMARKS
EXHIBIT H
[INTENTIONALLY OMITTED]
EXHIBIT I
[INTENTIONALLY OMITTED]
EXHIBIT J
FORM OF DETAIL REPORT
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
3
EXHIBIT K
FORM OF CSD ACTIVITIES REPORT
EXHIBIT L
INITIAL SALES TRAINING MATERIALS
EXHIBIT M
PROMOTION PLAN
EXHIBIT N
INITIAL PROMOTIONAL MATERIALS
EXHIBIT O
FORM OF PRODUCT SALES (WEEKLY/MONTHLY REPORTS)
EXHIBIT P
FORM OF REPORTING OF GROSS SALES/NET SALES
EXHIBIT Q
FORM OF ANNUAL AMOUNT DUE REPORT AND EXAMPLES OF CALCULATION
EXHIBIT R
FORM OF PRODUCT INVENTORY REPORT
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
4
COMMERCIAL SERVICES AGREEMENT
This COMMERCIAL SERVICES AGREEMENT (the "Agreement") is entered into as of
July 1, 2008 (the "Effective Date"), by and between ASTRAZENECA PHARMACEUTICALS
LP, a Delaware limited partnership ("AstraZeneca"), and CUBIST PHARMACEUTICALS,
INC., a Delaware corporation ("Cubist").
R E C I T A L S:
WHEREAS, AstraZeneca markets that certain pharmaceutical compound known as
meropenem in prescription form currently marketed under the trademark Merrem®.
WHEREAS, AstraZeneca acknowledges Cubist's expertise in detailing and otherwise
promoting pharmaceutical products through its sales and promotional efforts
related to Cubicin® (as defined herein) in the acute care setting and wishes to
engage the services of Cubist to Promote (as defined herein) and provide other
services related to the Product (as defined herein).
WHEREAS, the parties hereto desire that Cubist Promote (as defined herein) the
Product in the Territory (as defined herein) and perform certain other services,
all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the respective covenants, representations,
warranties and agreements set forth herein, and intending to be legally bound
hereby, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1
Definitions.
Unless specifically set forth to the contrary herein, the following terms shall
have their indicated meanings when used in this Agreement (including the
Exhibits):
(A)
"ACT" MEANS THE FEDERAL FOOD, DRUG, AND COSMETIC ACT, AS
AMENDED, AND THE RULES, REGULATIONS, GUIDANCES, GUIDELINES AND REQUIREMENTS OF
THE FDA AS MAY BE IN EFFECT FROM TIME TO TIME.
(B)
"ADVERSE EVENT" MEANS THE