ANY OTHER MANNER PERMITTED BY
LAW.
SECTION 13.8
ASSIGNMENT; SUCCESSORS.
NEITHER ALNYLAM NOR CUBIST MAY ASSIGN
THIS AGREEMENT IN WHOLE OR IN PART, NOR ANY RIGHTS HEREUNDER, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED THAT (A) EITHER PARTY MAY ASSIGN
THIS AGREEMENT IN WHOLE OR IN PART TO AN AFFILIATE ON THE CONDITION THAT THE
ASSIGNING PARTY SHALL REMAIN LIABLE HEREUNDER FOR THE PROMPT PAYMENT AND
PERFORMANCE OF ALL OBLIGATIONS OF THE ASSIGNEE, WHICH RIGHT TO ASSIGN SHALL
INCLUDE THE RIGHT TO ASSIGN RIGHTS TO RECEIVE ANY PAYMENTS REQUIRED UNDER THIS
AGREEMENT CONSISTENT WITH LICENSE GRANTS, SUBLICENSES AND OTHER RIGHTS
REFERENCED IN SECTIONS 3.1, 3.2 AND 3.4 UPON REASONABLE WRITTEN NOTICE TO THE
OTHER PARTY OF SUCH ASSIGNMENT, AND (B) THIS AGREEMENT MAY BE ASSIGNED BY A
PARTY IF SUCH PARTY MERGES WITH, OR ALL OR SUBSTANTIALLY ALL OF SUCH PARTY'S
BUSINESS OR ASSETS TO WHICH THIS AGREEMENT RELATES ARE ACQUIRED BY ANOTHER
PERSON (WHETHER BY MERGER, SALE OF ASSETS, SALE OF STOCK OR OTHERWISE) (AN "M&A
EVENT"), TO SUCH PARTY'S MERGER PARTNER OR ACQUIRER.
EACH PARTY AGREES THAT,
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, IF AN
M&A EVENT OCCURS WITH RESPECT TO A PARTY, SUCH M&A EVENT []*.
IN THE EVENT THE
INTELLECTUAL PROPERTY OR TECHNOLOGY OF SUCH MERGER PARTNER OR ACQUIRER OF SUCH
PARTY, OR OF ANY THIRD PARTY THAT BECOMES AN AFFILIATE OF SUCH PARTY BY VIRTUE
OF SUCH M&A EVENT IS THE SUBJECT OF AN ALNYLAM IN-LICENSE OR CUBIST IN-LICENSE
AS OF THE DATE OF THE M&A EVENT, THE TERMS OF SECTION 8.6 SHALL CONTINUE TO
APPLY WITH RESPECT TO SUCH INTELLECTUAL PROPERTY AND TECHNOLOGY.
ANY ASSIGNMENT
MADE OTHER THAN IN ACCORDANCE WITH THE IMMEDIATELY PRECEDING SENTENCE SHALL BE
WHOLLY VOID AND INVALID, AND THE ASSIGNEE IN ANY SUCH ASSIGNMENT SHALL ACQUIRE
NO RIGHTS WHATSOEVER, AND THE NON-ASSIGNING PARTY SHALL NOT RECOGNIZE, NOR SHALL
IT BE REQUIRED TO RECOGNIZE,
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
87
SUCH ASSIGNMENT.
THIS SECTION 13.8 LIMITS BOTH THE RIGHT AND THE POWER TO
ASSIGN THIS AGREEMENT OR RIGHTS UNDER THIS AGREEMENT.
THIS AGREEMENT SHALL BE
BINDING UPON, AND SHALL INURE TO THE BENEFIT OF, ALL PERMITTED SUCCESSORS AND
ASSIGNS.
SECTION 13.9
NO CONSEQUENTIAL OR PUNITIVE DAMAGES.
NEITHER PARTY HERETO WILL
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE
OR MULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS
HEREUNDER, OR FOR ANY LOSS OR INJURY TO A PARTY'S PROFITS OR GOODWILL ARISING
FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF
SUCH DAMAGES.
NOTHING IN THIS SECTION 13.9 IS INTENDED TO LIMIT OR RESTRICT THE
INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY WITH RESPECT TO THIRD
PARTY CLAIMS.
SECTION 13.10
PERFORMANCE BY AFFILIATES.
TO THE EXTENT THAT THIS AGREEMENT
IMPOSES OBLIGATIONS ON AFFILIATES OF A PARTY, SUCH PARTY AGREES TO CAUSE ITS
AFFILIATES TO PERFORM SUCH OBLIGATIONS.
EITHER PARTY MAY USE ONE OR MORE OF ITS
AFFILIATES