ASTRAZENECA FAILS TO MAINTAIN THE PRODUCT NDA, (C) ASTRAZENECA IS REQUIRED
OR DETERMINES, FOR SAFETY OR EFFICACY REASONS, TO RESTRICT THE INDICATIONS
APPROVED FOR THE PRODUCT UNDER THE PRODUCT NDA OR (D) ANY GOVERNMENT ENTITY,
INCLUDING ANY FEDERAL OR STATE ENTITY, IMPOSES PRICE CONTROLS THAT ARE
REASONABLY LIKELY TO RESULT IN AN OBVIOUS AND SUBSTANTIAL LOSS OF GROSS SALES.
(II)
IMMEDIATELY UPON WRITTEN NOTICE TO ASTRAZENECA, IF ASTRAZENECA OR
ITS AFFILIATES, DIRECTLY OR INDIRECTLY, (I) MARKET, PROMOTE, SELL OR ACCEPT
ORDERS FOR THE SALE OF ANY COMPETING PRODUCT IN THE TERRITORY, OR (II) ASSIST OR
COOPERATE IN ANY WAY WITH ANY OTHER PERSON IN CONNECTION WITH THE MARKETING,
PROMOTION, SELLING OR ACCEPTANCE OF ORDERS FOR THE SALE OF ANY COMPETING PRODUCT
IN THE TERRITORY.
(III)
IMMEDIATELY UPON WRITTEN NOTICE TO ASTRAZENECA, IF THERE IS A
CHANGE IN CONTROL WITH RESPECT TO ASTRAZENECA, PROVIDED THAT SUCH NOTICE OF
TERMINATION IS GIVEN WITHIN THIRTY (30) CALENDAR DAYS AFTER THE LATER OF
(A) SUCH CHANGE IN CONTROL AND (B) THE DATE ON WHICH ASTRAZENECA PROVIDES CUBIST
WITH WRITTEN NOTICE THEREOF.
(IV)
UPON TEN (10) CALENDAR DAYS' PRIOR WRITTEN NOTICE TO ASTRAZENECA,
IF ASTRAZENECA OR ANY OF ITS AFFILIATES HAS FAILED TO COMPLY WITH APPLICABLE LAW
IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
WHICH FAILURE WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON
THE PROMOTION OF THE PRODUCT IN THE TERRITORY.
(V)
UPON []* BUSINESS DAYS' PRIOR WRITTEN NOTICE TO ASTRAZENECA, IN
THE CASE OF A SIGNIFICANT STOCKOUT, PROVIDED THAT SUCH WRITTEN NOTICE OF
TERMINATION IS PROVIDED NO LATER THAN []* CALENDAR DAYS AFTER THE END OF SUCH
SIGNIFICANT STOCKOUT.
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
66
15.3
Effect of Expiration or Termination.
(A)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, IN THE EVENT
THAT THE TERM DOES NOT END ON THE LAST DAY OF A CALENDAR YEAR, FOR ANY REASON,
THEN THE LAST DAY OF THE TERM SHALL BE TREATED AS THE LAST DAY OF THE CALENDAR
YEAR AND THE END-OF-TERM PRORATION PRINCIPLES SET FORTH IN SECTION 6.2(A) SHALL
APPLY TO CALCULATE THE FINAL AMOUNT DUE AND PAYABLE TO CUBIST PURSUANT TO
ARTICLE VI.
(B)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, WITHOUT
LIMITING ANY OF A PARTY'S OTHER RIGHTS OR REMEDIES HEREUNDER OR OTHERWISE IN LAW
OR EQUITY, IN THE EVENT THAT THIS AGREEMENT (I) TERMINATES AUTOMATICALLY
PURSUANT TO SECTION 15.2(A) BECAUSE []*.
(C)
UPON THE EFFECTIVE DATE OF THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT, EXCEPT AS OTHERWISE AGREED BY ASTRAZENECA AND CUBIST IN WRITING WITH
RESPECT TO ANY WIND-DOWN ACTIVITIES, CUBIST SHALL PROMPTLY CEASE ALL PROMOTION
OF THE PRODUCT, INCLUDING DETAILING, AND ALL CSD ACTIVITIES, AND PROMPTLY
DISCONTINUE THE USE OF ANY PROMOTIONAL MATERIALS, ASTRAZENECA CSD MATERIALS, AND
PRODUCT TRADEMARKS.
(D)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH THE PROVISIONS HEREOF SHALL NOT LIMIT REMEDIES THAT
MAY OTHERWISE BE AVAILABLE IN LAW OR EQUITY.
15.4
Accrued Rights; Surviving Obligations.
(A)
TERMINATION