PERIOD AS IS
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
75
DESIGNATED BY THE NON-CHALLENGING PARTY), SUCH LICENSE RIGHTS WILL SO
TERMINATE.
THE FOREGOING PROVISIONS OF THIS SECTION 11.2(C) NOTWITHSTANDING, IF
(X) ALNYLAM IS THE NON-CHALLENGING PARTY, (Y) ALNYLAM DOES NOT ELECT TO
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 11.2(C), AND (Z) THE PATENT
CHALLENGE IS UNSUCCESSFUL, THEN (1) []*.
NOTWITHSTANDING ANYTHING IN THIS
SECTION 11.2(C) TO THE CONTRARY, A CHALLENGE BY CUBIST AS TO WHETHER A PATENT
APPLICATION WAS FILED BY ALNYLAM IN GOOD FAITH FOR PURPOSES OF THE DEFINITION OF
VALID CLAIM SHALL NOT BE CONSIDERED A CHALLENGE FOR WHICH ALNYLAM CAN EXERCISE
ITS RIGHTS UNDER THIS SECTION 11.2(C).
SECTION 11.3
EFFECT OF TERMINATION.
(A)
TERMINATION BY ALNYLAM.
WITHOUT LIMITING
ANY OTHER LEGAL OR EQUITABLE REMEDIES THAT ALNYLAM MAY HAVE, IF ALNYLAM
TERMINATES THIS AGREEMENT IN ACCORDANCE WITH SECTION 11.2(B) OR 11.2(C), THEN
(I) CUBIST'S OBLIGATIONS UNDER SECTION []* SHALL SURVIVE FOR A PERIOD OF []*
AFTER THE EFFECTIVE DATE OF TERMINATION, (II) CUBIST SHALL, FOR A PERIOD OF []*
FOLLOWING THE DATE OF NOTICE OF TERMINATION, CONTINUE TO PAY []* PERCENT ([]*%)
OF []* AND PROVIDED THAT THE []* BY CUBIST UNDER THIS CLAUSE SHALL NOT EXCEED
(A) []* DOLLARS ($[]*) IF ALNYLAM TERMINATED THIS AGREEMENT AFTER THE FIRST
OPT-OUT MILESTONE AND PRIOR TO THE SECOND OPT-OUT MILESTONE AND (B) []* DOLLARS
($[]*) IF ALNYLAM TERMINATED THIS AGREEMENT AFTER THE SECOND OPT-OUT MILESTONE;
(III) THE LICENSES GRANTED TO ALNYLAM IN SECTION 3.2 SHALL SURVIVE AND ANY
RESTRICTIONS ON SUBLICENSING SHALL NO LONGER APPLY, (IV) CUBIST SHALL AS
PROMPTLY AS PRACTICABLE TRANSFER TO ALNYLAM OR ALNYLAM'S DESIGNEE (A) POSSESSION
AND OWNERSHIP OF ALL GOVERNMENTAL OR REGULATORY CORRESPONDENCE, CONVERSATION
LOGS, FILINGS AND APPROVALS (INCLUDING ALL REGULATORY APPROVALS AND PRICING AND
REIMBURSEMENT APPROVALS) RELATING TO THE DEVELOPMENT, MANUFACTURE OR
COMMERCIALIZATION OF LICENSED PRODUCT AND ALL CUBIST TRADEMARKS THEN BEING USED
IN CONNECTION WITH LICENSED PRODUCT, OTHER THAN CUBIST'S CORPORATE TRADEMARKS
(B) COPIES OF ALL DATA, REPORTS, RECORDS AND MATERIALS, COMMERCIALIZATION PLANS,
MARKETING PLANS, PROMOTIONAL MATERIALS, AND OTHER SALES AND MARKETING RELATED
INFORMATION IN CUBIST'S POSSESSION OR CONTROL TO THE EXTENT THAT SUCH DATA,
REPORTS, RECORDS, MATERIALS OR OTHER INFORMATION RELATE TO THE DEVELOPMENT,
MANUFACTURE OR COMMERCIALIZATION OF LICENSED PRODUCT, INCLUDING ALL NON-CLINICAL
AND CLINICAL DATA RELATING TO LICENSED PRODUCT, AND CUSTOMER LISTS AND CUSTOMER
CONTACT INFORMATION AND ALL SAFETY DATA AND OTHER ADVERSE EVENT DATA IN CUBIST'S
POSSESSION OR CONTROL; PROVIDED THAT (I) CUBIST SHALL NOT BE REQUIRED BY THIS
PROVISION TO PROVIDE ANY CONFIDENTIAL INFORMATION TO ALNYLAM AND (II) CUBIST
SHALL USE DILIGENT EFFORTS TO OBTAIN FOR ALNYLAM THE RIGHT TO ACCESS ALL SUCH
DATA, REPORTS, RECORDS, MATERIALS, AND OTHER SALES AND MARKETING RELATED
INFORMATION, AND (C) ALL RECORDS AND MATERIALS IN CUBIST'S POSSESSION OR CONTROL
CONTAINING CONFIDENTIAL INFORMATION OF ALNYLAM, (V) IF REQUESTED BY ALNYLAM,
APPOINT ALNYLAM AS CUBIST'S OR CUBIST'S RELATED PARTIES' AGENT FOR ALL LICENSED
PRODUCT-RELATED MATTERS INVOLVING REGULATORY AUTHORITIES IN THE TERRITORY UNTIL
ALL REGULATORY APPROVALS AND OTHER REGULATORY