AUTHORITY REGARDING SUCH MATTER (SUBJECT TO BOARD OF
DIRECTORS' OR EQUIVALENT APPROVAL, IF REQUIRED).
WITHIN TEN (10) CALENDAR DAYS
AFTER EITHER PARTY GIVES WRITTEN NOTICE TO THE OTHER PARTY OF ITS DESIRE TO
RESOLVE SUCH A DISPUTE PURSUANT TO THIS SECTION 16.1(A) (THE "DISPUTE NOTICE"),
SUCH EXECUTIVE REPRESENTATIVES SHALL MEET AT A MUTUALLY ACCEPTABLE TIME AND
PLACE, AND THEREAFTER AS OFTEN AS THEY REASONABLY DEEM NECESSARY, TO EXCHANGE
RELEVANT INFORMATION AND TO ATTEMPT TO RESOLVE THE DISPUTE.
(B)
IF, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DISPUTE NOTICE IS
PROVIDED ("ESCALATION PERIOD"), SUCH EXECUTIVE REPRESENTATIVES HAVE NOT RESOLVED
A DISPUTE, THEN (I) IF SUCH DISPUTE IS NOT []*, NEITHER PARTY SHALL BE PRECLUDED
FROM INITIATING LITIGATION OR OTHER LEGAL ACTION WITH RESPECT TO SUCH DISPUTE,
OR []* SECTION 16.1(C) SHALL APPLY.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN,
IF THERE IS []* THAT INVOLVES ANY PROVISIONS OF THIS AGREEMENT THAT RELATE TO
[]*.
(C)
ANY []* NOT RESOLVED BY THE EXECUTIVE REPRESENTATIVES OF THE
PARTIES, WITHIN THE TIME PERIOD SET FORTH IN SECTION 16.1(B), MAY BE SUBMITTED
BY EITHER PARTY, UPON WRITTEN NOTICE TO THE OTHER PARTY TO EXPERT ARBITRATION
PURSUANT TO THIS SECTION 16.1(C) (AN "ARBITRATION NOTICE") AND SHALL BE FINALLY
SETTLED BY SUCH ARBITRATION.
SUCH ARBITRATION SHALL, UNLESS OTHERWISE MUTUALLY
AGREED BY THE PARTIES, BE HELD, IF INITIATED BY ASTRAZENECA, IN MASSACHUSETTS,
AND IF INITIATED BY CUBIST, IN DELAWARE, BEFORE ONE NEUTRAL ARBITRATOR (SELECTED
AS SET OUT BELOW IN SECTION 16.1(C)(I)).
SUCH RIGHT SHALL BE WITHOUT LIMITATION
TO ANY TERMINATION RIGHT OF A PARTY THAT MAY ARISE AS A RESULT OF THE
SIGNIFICANT MARKET EVENT TO WHICH SUCH BASELINE SALES DISPUTE RELATES.
(I)
FOLLOWING DELIVERY OF AN ARBITRATION NOTICE PURSUANT TO THIS
SECTION 16.1(C) WITH RESPECT TO A []*, THE PARTIES SHALL PROMPTLY NEGOTIATE IN
GOOD FAITH TO APPOINT
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
68
A MUTUALLY ACCEPTABLE NEUTRAL ARBITRATOR WHO HAS THE APPROPRIATE BUSINESS
BACKGROUND IN THE PHARMACEUTICAL INDUSTRY AND EXPERIENCE AS AN ARBITRATOR OF
DISPUTES BETWEEN ENTITIES IN THE PHARMACEUTICAL INDUSTRY NOT AFFILIATED WITH
EITHER PARTY (A "NEUTRAL").
IF THE PARTIES ARE NOT ABLE TO AGREE IN WRITING ON
A MUTUALLY ACCEPTABLE NEUTRAL WITHIN TEN (10) CALENDAR DAYS AFTER DELIVERY OF
SUCH ARBITRATION NOTICE, THE INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION &
RESOLUTION ("CPR INSTITUTE") SHALL BE RESPONSIBLE FOR SELECTING A QUALIFIED,
DISINTERESTED AND CONFLICT-FREE NEUTRAL (IN ACCORDANCE WITH ITS RULES FOR
SELECTING SUCH A PERSON, IF ANY) WITHIN FIFTEEN (15) CALENDAR DAYS AFTER A
WRITTEN REQUEST BY EITHER PARTY (THE OTHER PARTY SHALL BE COPIED ON SUCH
REQUEST).
THE OUT-OF-POCKET FEES AND COSTS OF THE NEUTRAL AND, IF ANY, THE CPR
INSTITUTE, IN CONNECTION WITH THE ARBITRATION SHALL BE SHARED EQUALLY BY THE
PARTIES.
(II)
WITHIN THIRTY (30) CALENDAR DAYS AFTER SUCH MATTER IS REFERRED TO
THE NEUTRAL, EACH PARTY SHALL PROVIDE THE NEUTRAL AND THE OTHER PARTY WITH SUCH
PARTY'S PROPOSAL WITH RESPECT TO []* WITH A WRITTEN MEMORANDUM IN SUPPORT OF
SUCH PROPOSAL, INCLUDING ANY RELEVANT SUPPORTING DATA AND ANALYSIS