OR FOR SUCH
PARTY BY ANOTHER, AND "COMMERCIALIZATION" SHALL BE INTERPRETED ACCORDINGLY.
1.17.
"COMMERCIALLY IMPORTANT INDICATIONS" SHALL MEAN, WITH RESPECT TO A GIVEN
LICENSED PRODUCT ON ANY GIVEN DATE OF DETERMINATION, THOSE INDICATIONS THAT ARE
INCLUDED IN THE LABEL APPROVED BY A REGULATORY AUTHORITY IN THE TERRITORY FOR
SUCH LICENSED PRODUCT AND THAT EACH ACCOUNT FOR [*] OF SUCH LICENSED PRODUCT FOR
THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING SUCH DATE OF DETERMINATION, OR,
IN THE EVENT THAT [*] IN THE TERRITORY OCCURRED WITHIN TWELVE MONTHS OF SUCH
DATE OF DETERMINATION, THEN FOR THE PERIOD FROM [*] THROUGH SUCH DATE OF
DETERMINATION, OR IF THERE IS NO INDICATION THAT [*], THEN THOSE THREE
INDICATIONS THAT ACCOUNT FOR THE [*].
1.18.
"COMMERCIALLY REASONABLE EFFORTS" SHALL MEAN, WITH RESPECT TO A PARTY'S
OBLIGATION UNDER THIS AGREEMENT, THE LEVEL OF EFFORTS REQUIRED TO CARRY OUT SUCH
OBLIGATION IN SUSTAINED MANNER CONSISTENT WITH THE EFFORTS A SIMILARLY SITUATED
PHARMACEUTICAL COMPANY DEVOTES TO A PRODUCT OF SIMILAR MARKET POTENTIAL, PROFIT
POTENTIAL AND STRATEGIC VALUE AND SIMILAR SCIENTIFIC, TECHNICAL, DEVELOPMENT AND
REGULATORY RISKS, BASED ON CONDITIONS THEN PREVAILING.
1.19.
"CONFIDENTIAL INFORMATION"
SHALL MEAN ALL INFORMATION, AND OTHER
INFORMATION AND MATERIALS, RECEIVED BY EITHER PARTY FROM THE OTHER PARTY
PURSUANT TO THIS AGREEMENT, OTHER THAN THAT PORTION OF SUCH INFORMATION OR
MATERIALS WHICH:
(a)
is publicly disclosed by the disclosing Party, either before or
after it becomes known to the receiving Party;
(b)
was known to the receiving Party, without obligation to keep it
confidential, prior to when it was received from the disclosing Party;
(c)
is subsequently disclosed to the receiving Party by a Third Party
lawfully in possession thereof without obligation to keep it confidential;
(d)
has been publicly disclosed other than by the disclosing Party and
without breach of an obligation of confidentiality with respect thereto; or
(e)
has been independently developed by the receiving Party without
the aid, application or use of Confidential Information, as demonstrated by
competent written proof.
1.20.
"CONTRACT MANUFACTURING AGREEMENTS" MEANS ANY AND ALL AGREEMENTS PURSUANT
TO WHICH LICENSED PRODUCTS ARE MANUFACTURED ON BEHALF OF CUBIST (INCLUDING ANY
SUCH AGREEMENTS FOR ANY STEP IN THE MANUFACTURING PROCESS), INCLUDING WITHOUT
LIMITATION, THE ABBOTT
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
4
Laboratories, ACS Dobfar S.p.A. and DSM Capua S.p.A. contracts, together with
all amendments and extensions of such agreements.
1.21.
"CONTROL" SHALL MEAN POSSESSION OF THE ABILITY TO GRANT A LICENSE OR
SUBLICENSE AS PROVIDED FOR HEREIN WITHOUT VIOLATING THE TERMS OF ANY AGREEMENT
OR OTHER ARRANGEMENT WITH ANY THIRD PARTY, AND "CONTROLLED" SHALL BE INTERPRETED
ACCORDINGLY.
1.22.
"CSSSI" SHALL MEAN COMPLICATED SKIN AND SKIN STRUCTURE BACTERIAL
INFECTION.
1.23.
"CUBIST DATA" SHALL MEAN ALL INFORMATION (OTHER THAN OTHER LICENSEE DATA)
OWNED OR CONTROLLED BY CUBIST PERTAINING TO LICENSED PRODUCTS THAT IS NECESSARY
OR USEFUL FOR MAKING APPLICATIONS FOR REGULATORY APPROVAL OR OTHER REGULATORY
FILINGS FOR, OR COMMERCIALIZING, LICENSED PRODUCTS IN THE TERRITORY.
1.24.
"CUBIST DEVELOPMENT PLAN" SHALL HAVE THE MEANING ASSIGNED SUCH TERM