EXHIBIT 10.2
CONFIDENTIAL TREATMENT
SERVICES AGREEMENT
This Services Agreement (AGREEMENT) is entered into as of June 22, 2000
(EFFECTIVE DATE) by and between:
Gist-brocades Holding A.G., a Swiss corporation with registered address
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (DSM)
and
Cubist Pharmaceuticals, Inc., a Delaware corporation with registered address ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ (CUBIST).
BACKGROUND
Cubist is a drug company focused on the discovery, development and
commercialization of novel drugs to treat infections. Cubist has commenced Phase
III clinical trials of its lead product, Daptomycin, an agent with potential
bactericidal activity against life threatening infections. DSM Capua S.p.A. of
Capua, Italy (DSM Capua), an affiliated company of DSM, has expertise in the
manufacture of drugs on a contract basis. DSM is willing to provide supervisory
and advisory services to Cubist relating to the equipping of a production
facility at DSM Capua, for the production of Daptomycin by DSM Capua for Cubist
and the sale by DSM Capua of clinical and commercial quantities of Daptomycin to
Cubist. This Agreement sets forth the terms under which DSM will supervise the
equipping of the production facility by DSM Capua. In addition hereto, DSM Capua
and Cubist have entered into a Manufacturing and Supply Agreement relating to
the equipping of the facility and manufacture and supply of Daptomycin by DSM
Capua to Cubist (M&S AGREEMENT).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, DSM and Cubist agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meaning set forth below.
AFFILIATE means with respect to either party, any Person that, directly or
indirectly, is controlled by, controls or is under common control with such
party. For purposes of this Agreement, CONTROL means, with respect to any
Person, the direct or indirect ownership of more than fifty percent (50%)
of the voting or income interest in such Person or the possession
otherwise, directly or indirectly, of the power to direct the management or
policies of such Person.
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the Commission.
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CONFIDENTIAL INFORMATION means all data, specifications, training and any
other know-how related to the design, development, manufacture, or
performance of the Product, as well as all other information and data
provided by either party to the other party pursuant to this Agreement in
written or other tangible medium and marked as confidential, or if
disclosed orally or displayed, confirmed in writing within thirty (38) days
after disclosure and marked as confidential, except any portion thereof
which: (i) is known to the receiving party, as evidenced by the receiving
party's written records, before receipt thereof under this Agreement; (ii)
is disclosed to the receiving party by a third person who is under no
obligation of confidentiality to the disclosing party hereunder with
respect to such information and who otherwise has a right to make such
disclosure; (iii) is or becomes generally known in the trade through no
fault of the receiving party; or (iv) is independently developed by the
receiving party, as evidenced by the receiving part's written records,
without access to such information.
CUBIST TECHNOLOGY [ ]*.
DAPTOMYCIN, DAPTOMYCIN PRODUCT OR PRODUCT means Daptomycin (the compound
[ ]* whose structure is detailed in Exhibit B) API bulk drug substance
manufactured in accordance with the process described in Exhibit D.
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FDA means the United States Food and Drug Administration or any successor
entity thereto.
FACILITY means the GMP Drug Production facility in Capua, Italy to be
equipped by DSM Capua for the manufacture of Product pursuant to the
provisions of Section 2.
FORCE MAJEURE means any event beyond the reasonable control of the parties,
including, without limitation, fire, flood, riots, strikes, epidemics, war
(declared or undeclared and including the continuance, expansion or new
outbreak of any war or conflict now in existence), embargoes and
governmental actions or decrees.
MOU means that Memorandum of Understanding dated January 14, 2000 between
the parties, a copy of which is attached as Exhibit C hereto.
NDA means a new drug application filed with the FDA to obtain marketing
approval for Product in the United States.
PERSON means any individual, corporation, association, partnership (general
or limited), joint venture, trust, estate, limited liability company,
limited liability partnership, unincorporated organization, government (or
any agency or political subdivision thereof) or other legal entity or
organization.
PROCESS [ ]*.
OTHER DEFINED TERMS. Each of the following terms have the meanings ascribed
to it in the section set forth opposite such term:
DSM Recitals
DSM CAPUA Recitals
DSM EQUIPMENT Section 2.1
AGREEMENT Recitals
CUBIST Recitals
EFFECTIVE DATE Recitals
IMPLEMENTATION DATE Section 2.4
INDEMNIFYING PARTY Section 5.2
INDEMNITEE(S) Section 5.2
LCIA Section 7.2
M&S AGREEMENT Recitals
REPRESENTATIVE Section 7.1
TARGET DATE Section 2
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2. CONSTRUCTION OF PRODUCTION FACILITY
FACILITY CONSTRUCTION. By [ ]* (the TARGET DATE), DSM will supervise and advise
DSM Capua on its activities to (i) carry out the modifications to the Facility
and equip the Facility as described in Exhibit E to this Agreement and (ii)
qualify the Facility in accordance with the qualification requirements set forth
in Exhibit F. Subject to the terms and conditions of this Agreement, DSM will
provide certain services to Cubist relating to the supervision and guidance of
the activities of DSM Capua in equipping the Facility for the manufacture of
Daptomycin as provided for in this Article 2. In consideration of the services
provided by DSM, Cubist will pay to DSM the amounts as specified also in this
Article 2.
2.1 COSTS. Exhibit G attached to this Agreement is the preliminary engineering
list of [ ]* that are to be purchased and installed by DSM Capua plus all
additional components to achieve full functionality in the Facility
(THE DSM EQUIPMENT). DSM Capua will have and hold the sole and exclusive
ownership of the DSM Equipment. Any increases in equipment or other
costs must be agreed to by the parties in writing and will be reimbursed
by [ ]*. Such agreement shall include an agreement between the parties
with respect to the respective payment conditions. The aggregate cost for
the construction equipping, testing and validation of the Facility shall
not exceed [ ]* and shall be payable at the due date in accordance with
the schedule set forth in Exhibit G, and shall be subject to the payment
conditions as specified under Section 3.4. It is agreed by Cubist that
the above limit of [ ]* is based on the investments set forth in Exhibit
E. In the event Cubist should demand modifications of these investments
and/or additional investments which lead to increased costs for DSM or
DSM Capua, [ ]* will pay DSM amounts for such parts of the costs which
exceed the above limit of [ ]* upon notification.
2.2 MILESTONE FUNDING. In addition to the amounts payable under clause 2.1,
Cubist will provide DSM with the following funding during the period prior
to the date of commencement for commercial production of the Product by DSM
Capua. These payments are a compensation for the technology development
program for the implementation of the Cubist Technology in the Facility, to
be performed by GSM Capua upon request and under responsibility of Cubist.
a. [ ]*
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b. [ ]*
c. [ ]*
d. [ ]*
e. [ ]*
f. [ ]*
2.3 WITHHOLDING OF MILESTONE PAYMENTS. In the event the Milestone Dates set
forth in Exhibit H, Section 2.2 as well as Section 2.5 of this Agreement
are not met by DSM Capua due to DSM Capua's late-, mis- or nonperformance
of its obligations hereunder Cubist may withhold payments scheduled to be
paid at the latest until successful completion of such Milestone delivery.
2.4 IMPLEMENTATION DAMAGES. In the event that DSM Capua has not finalized the
modification to the Facility as described in Exhibit E or has not finalized
the qualification of the Facility as described in Exhibit F within thirty
one (31) days after the Target Date (i.e. [ ]* the IMPLEMENTATION DATE) and
such failure is due to DSM Capua's late-, mis- or nonperformance of its
obligations hereunder, except for reasons of force majeure, DSM shall be
held liable for liquidated damages equal to an amount of [ ]* per day in
excess of the Target Date. These liquidated damages will in no event exceed
an amount of [ ]*. The parties acknowledge that (i) these liquidated
damages are a reasonable estimate of the actual loss Cubist will suffer
(ii) the amount of actual loss cannot bb precisely determined but these
liquidated damages are not plainly or grossly disproportionate to the
actual loss; and (iii) these liquidated damages are not Intended as a
penalty to compel performance. Any other liability of DSM and DSM Capua
arising out of or in connection with DSM or DSM Capua [ ]* on the
implementation Date shall be explicitly excluded.
2.5 INCENTIVE PAYMENTS. Cubist will pay DSM an additional [ ]* payment if DSM
Capua successfully completes the milestone described in Section 2.2(e)
before [ ]*. Cubist will pay DSM an additional [ ]* incentive payment if
DSM Capua successfully completes the milestone described in Section 2.2(e)
after [ ]* but before [ ]*. If DSM Capua does not successfully complete the
milestone described in Section 2.2(e) by [ ]*, as a consequence of DSM
Capua's non-, late- or misperformance of its obligations hereunder, except
for reasons of force majeure, DSM will pay Cubist [ ]* as liquidated
damages.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS.
3.1 PUBLICITY. Except as is necessary for governmental notification purposes
relating to the production. importation. marketing or sale of Product or to
enforce their respective rights under this Agreement, or to a party's legal
or financial advisors, and except as otherwise agreed to by the parties
hereto in writing, the parties shall (a) keep the material terms of this
Agreement confidential, (b) agree upon the text and the exact timing of an
initial public announcement relating to the transactions contemplated by
this Agreement as soon as possible after the Effective Date (such agreement
not to be unreasonably withheld) and (c) agree on the text and the timing
of any
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subsequent public announcements regarding this Agreement or the
transactions contemplated herein. Neither party shall use the name of the
other party or any director, officer or employee of the other party or any
adaptation thereof in any advertising. promotional or sales literature or
publicity without the prior written approval of the other party. If this
Agreement is required to be filed by either Party with the Securities and
Exchange Commission or another applicable securities regulatory authority
such party shall trot file this Agreement with the Securities and Exchange
Commission without seeking confidential treatment for any provisions of
this Agreement that either party believes would disclose trade secrets,
confidential commercial or financial information that would impair the
value of the contractual rights represented by this Agreement or provide
detailed commercial and financial information to competitors or third
parties. Neither party shall use the name of the other party or any
director, officer or employee of the other party or any adaptation thereof
without the prior written approval of the other party.
3.2 CONFIDENTIALITY. It is contemplated that in the course of the performance
of this Agreement each party may, from time to time, disclose Confidential
information to the other. Each party agrees to take all reasonable steps to
prevent disclosure of Confidential Information of the other party and not
to use any Confidential information of the other party except for the
limited purposes set forth in this Agreement; provided that no provision of
this Agreement shall be construed to preclude such disclosure of
Confidential Information as may be required by valid court or
administrative order. or to the extent. necessary and appropriate to
divulge such Confidential information to obtain governmental approval for
marketing the Product; provided notice of such disclosure is provided to
the other party prior to such disclosure. All Confidential Information made
available hereunder. including copies thereof, shall be returned or
destroyed upon the first to occur of (a) termination of this Agreement or
(b) written request by the discloser, except that each party may retain one
(1) complete copy of Confidential Information for archival purposes to
assure compliance with this Agreement. For the purpose of this Article 3,
it is agreed that any direct or indirect Affiliate of DSM shall not be
regarded as a third party.
3.3 PROPRIETARY RIGHTS. (a) This Agreement does not convey to DSM any ownership
rights in [ ]* by implication, estoppel or otherwise except for the rights
expressly granted under this Agreement. Tile to [ ]* shall at all times
remain vested in Cubist or its licensors.
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(b) This Agreement does not convey to Cubist any ownership rights in any
existing [ ]* by implication, estoppel or otherwise. Title to all such
[ ]* and the intellectual property rights embodied in such [ ]* shall at
all times remain vested in DSM or its licensors.
3.4 PAYMENT. Cubist shall make payments within [ ]* after the date of DSM's
notification with respect to the dates listed in Sections 2.1, 2.2, 2.5 and
Exhibit G. Except for income taxes that may be assessed against [ ]*, all
taxes and charges that may be imposed by any government taxing authority on
the amounts paid by [ ]* to DSM under this Agreement shall be paid by [ ]*,
notwithstanding, however, that [ ]* shall not be liable for any VAT which
may be assessed in relation to the services and advice provided in the
Agreement. [ ]* shall make payments by wire transfer to a bank identified
by [ ]*. All amounts shall be stated and paid in United States Dollars.
4. REPRESENTATIONS AND WARRANTIES.
4.1 AUTHORIZATION; ENFORCEABILITY. Each of DSM and Cubist represents and
warrants to the other that: (a) it is a corporation duty organized, validly
existing and in good standing under the laws of its incorporating
jurisdiction; (b) It has all requisite corporate power, and authority to
enter into this Agreement: (c) it is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder and consummate the
transactions contemplated hereby; and (d) this Agreement is a valid and
binding obligation of such party enforceable in accordance with its terms.
5. RISK ALLOCATION
5.1 LIMITATION OF LIABILITY. EXCEPT FOR INFRINGEMENT OF CUBISTS INTELLECTUAL
PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5.1
AND EXCEPT FOR PAYMENTS DUE UNDER SECTION 2. DSM SHALL NOT BE LIABLE TO
CUBIST FOR ANY DIRECT DAMAGES, LOST PROFITS OR FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY. PARTIES
ACKNOWLEDGE THAT ANY LIABILITY OF DSM RELATING TO THE EQUIPPING OF THE
FACILITY OR THE MANUFACTURE AND SUPPLY OF PRODUCT HAS BEEN EXHAUSTIVELY
DEALT WITH IN THE MSS AGREEMENT.
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5.2 CUBIST INDEMNIFICATION. Subject to the provisions of Section 5.3, Cubist
(as INDEMNIFYING PARTY) shall defend, indemnify and hold harmless DSM, its
subsidiaries, parent corporations. Affiliates, officers, directors,
independent contractors, partners, shareholders, employees, agents,
successors and assigns (each, as an INDEMNITEE) from and against any claim,
suit, demand, loss, damage, expense (including reasonable attorney's fees
of Indemnitee(s) and those that may be asserted by a third party) or
liability arising from or related to (a) the negligence or willful
misconduct of Cubist, (b) the use, sale or processing of the Product by
Cubist, to the extent not attributable to DSM and (c) any allegation that
the Process or Product infringes any intellectual property right of any
third party, unless caused by DSM's unauthorized use or modification of the
Process or Product.
5.3 PROCEDURE. To receive the benefit of indemnification under Sections 5.2,
the Indemnitee must (a) promptly notify the Indemnifying Party in writing
of a claim or suit (such notice to include a description of such claim or
suit and a copy of such claim or process end all legal pleadings in
connection therewith); (b) provide reasonable cooperation (at the
Indemnifying Party's expense) in the defense and settlement of the claim or
suit; and (c) tender to the Indemnifying Party (and its insurer) full
authority to defend or settle the claim or suit. The Indemnifying Party
shall have no obligation to indemnify Indemnitee in connection with any
settlement made without the Indemnifying Part's written consent. Failure to
comply with the provisions of Section 5.3(a)-(c) shall relieve the
Indemnitee Party of its indemnification obligations; provided, that failure
to give notice in accordance with Section 5.3(a) shall not relieve the
Indemnifying Party of its indemnification obligations, except where, and
solely to the extent that, such failure actually and materially prejudices
the rights the Indemnifying Party. Notwithstanding the provisions of
Section 5.3(b)-(c): (i) Indemnitee shall have the right to retain its own
counsel, with the fees and expenses to be paid by the Indemnifying Party,
if representation of Indemnitee by the counsel retained by the Indemnifying
Party would be inappropriate due to actual or potential differing interests
between such Indemnitee and any other party represented by such counsel in
such proceedings; and (ii) if an Indemnitee determines that there is a
reasonable probability that a claim may materially and adversely affect it,
other than as a result of money payments required to be reimbursed by the
Indemnifying Party under this Section 5, the Indemnitee shall have the
right to defend, compromise or settle such claim or suit, provided that
such settlement or compromise shall not, unless consented to in wring by
the Indemnifying Party, be relevant as to the Liability of the Indemnifying
Party to Indemnitee.
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6. TERM AND TERMINATION.
6.1 TERM. This Agreement shall take effect at the Effective Date and shall
remain in effect until final payment has been received by DSM in accordance
with the terms and conditions of this Agreement, unless sooner terminated
in accordance with Section 6.
(a) This Agreement will terminate automatically in case and at the moment
the M&S Agreement terminates or expires.
(b) The parties may also terminate this Agreement at any time upon mutual
written agreement of the parties.
6.2 EFFECT OF TERMINATION. (a) Upon any termination (including expiration) of
this Agreement, each party will return to the other party or certify in
writing to the other party that it has destroyed all documents and other
tangible items it or its employees or agents have received or created
pursuant to this Agreement pertaining, referring or relating to the
Confidential Information of the other party, except that each party may
retain one (1) complete copy of Confidential information for archival
purposes to assure compliance with this Agreement.
(b) In all cases of termination or expiration [ ]*.
(c) Termination of this Agreement shall not affect rights and obligations
of either party that may have accrued prior to the effective date of
termination or any obligation specifically stated to survive termination.
In particular this provisions of Sections 1. 3.1-3.4, 4-9 shall survive any
expiration or termination of this Agreement. Neither party shall be
entitled to damages resulting from the termination of this Agreement in
accordance with this Section 6.
6.3 RELATION TO M&S AGREEMENT. In case of breach or default by Cubist with
respect to any of its obligations under this Agreement, which breach or
default has not been cured [ ]* after receipt of written notice of such
breach or default by Cubist, DSM Capua is entitled to suspend the
performance under the M&S Agreement until such breach or default has been
adequately cured.
7. DISPUTE RESOLUTION.
7.1 DESIGNATED CONTACTS. (a) Each party will designate an individual
(REPRESENTATIVE) who will have the authority to represent such party in all
matters concerning the disputes contemplated by this Agreement. All such
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communications should be addressed to the representative. The initial
Cubist Representative will be [ ]*. The initial DSM Representative will be
[ ]*.
(b) In the event that any dispute arises relating to this Agreement, the
Representatives shall promptly meet and attempt to resolve same through
good faith discussions. If the Representatives are unable to resolve any
dispute to their mutual satisfaction within thirty (30) days alter they
commence discussions regarding same, and do not agree to extend the tires
for resolution of the issue at the end at their meeting, then either part
may initiate alternative dispute resolution in accordance with Section 7.2.
7.2 ARBITRATION. (a) Except in the case of a breach of Section 3, any claim,
dispute, or controversy arising out of or relating to this Agreement that
is not resolved in accordance with the provisions of Section 7.1 will be
submitted by the parties to arbitration by the London Court of
International Arbitration (LCIA) under the rules then in effect for the
LCIA, as modified herein or by agreement of the parties. ANY such
arbitration shall be conducted in London, England by one or more
arbitrators selected in accordance with this Section 7.2. Each party
irrevocably and unconditionally (i) consents to the jurisdiction of any
such proceeding and waives any objection that it may have to personal
jurisdiction or the laying of venue of any such proceeding; and (ii)
knowingly and voluntarily waives its rights to have disputes tried and
adjudicated by a judge and jury except as otherwise expressly provided
herein. The parties will cooperate with each other in causing the
arbitration to be held in as efficient and expeditious a manner as
practicable. The parties will attempt to agree upon a mutually acceptable
arbitrator within 30 days of receipt of the notice of intent to arbitrate.
If the parties are unable to agree upon a single arbitrator within such
30-day period or any extension of time which is mutually agreed upon. three
(3) arbitrators shall be used. one selected by each party within ten (10)
days after the conclusion of the 30-day period and a third selected by the
first two within ten (10) days thereafter. Unless the parties agree
otherwise. they shall be limited in their discovery to directly relevant
documents. Responses or objections to a document request shall be served
twenty (20) days after receipt of the request. The arbitrator(s) shall
resolve any discovery disputes. It is understood that the parties may (but
are not required to) submit disputes concerning any breach of Section 3 to
arbitration in accordance with this Section 7.2. Nothing herein shall
prevent the parties from settling any dispute by mutual agreement at any
time.
(b) The arbitrator(s) shall apply the substantive laws of England when
construing this Agreement and attempting to resolve any dispute relating to
the transactions contemplated by this Agreement, without regard for any
choice or conflict of laws rule or principle that would result in the
application of the substantive taw of any other jurisdiction. The
arbitration shall be of
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each party's individual claims only, and no claim of any other party shall
be subject to arbitration in such proceeding. Except as otherwise required
by law, the parties and the arbitrator(s) shall maintain as confidential
all information or documents obtained during the arbitration process,
including the resolution of the dispute.
(c) The arbitrator(s) shall not have the authority to award exemplary or
punitive damages, and the parties expressly waive any claimed right to such
damages, The arbitrators) shall have the authority to award actual money
damages (with interest on unpaid amounts from the date due) and may grant
equitable relief as is just and provided by the LCIA. The Rules, in each
case except as specifically provided to the contrary herein The costs and
expenses of the arbitration. but not the costs and expenses of the
parties, shall be shared equally by the parties, provided that the
non-prevailing party in any arbitration shall pay the other party's costs
and expenses (including travel expenses) and reimburse such party for its
portion of the arbitration costs. Any award rendered by the arbitrator(s)
shall be final and binding upon the parties. Judgment upon the award may
be entered in any court of competent jurisdiction. If a party fails to
proceed with arbitration, unsuccessfully challenges the arbitration award,
or falls to comply with the arbitration award, the other party is entitled
to costs, including reasonable attorney' fees, for having to compel
arbitration or defend or enforce the award.
(d) In the case of a breach of Section 3. either party may seek legal or
equitable relief in the courts) having jurisdiction over such matter.
8. GENERAL PROVISIONS.
8.1 GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the laws of England, to the exclusion of both its rules on conflicts
of laws and the provisions of the United Nations Convention on Contracts
for the International Sale of Goods.
8.2 AMENDMENT AND WAIVER. No provision of or right under this Agreement shall
be deemed to have been waived by any act or acquiescence on the part of
either party, its agents or employees, but only by an Instrument in writing
signed by an authorized officer of each party. No waiver by either party of
any breach of this Agreement by the other party shall be effective as to
any other breach, whether of the same or any other term or, condition and
whether occurring before or after the date of such waiver.
8.3 INDEPENDENT CONTRACTORS. Each party represents that it is acting on its own
behalf as an independent contractor and is not acting as, an agent for or
on behalf of any third party. This Agreement and the relations hereby
established by and between. DSM and Cubist do not constitute a partnership,
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joint venture; franchise, agency or contract of employment. Cubist is not
granted, and shall not exercise, the right or authority to assume or create
any obligation or responsibility on behalf of or in the name of DSM or its
Affiliates.
8.4 ASSIGNMENT. Neither party may assign this Agreement or any of such party's
rights and obligations hereunder to any third party without the prior
written consent of the other party; which consent shall not be unreasonably
withheld. Either party may assign this Agreement, and such party's rights
and obligations hereunder, to an Affiliate (including a subsidiary) which
controls, is controlled by, or is under common control with a party so long
as the assigning party remains primarily liable for its obligations
hereunder. In addition, either party may assign this Agreement, and its
rights and obligations hereunder, to any third party that purchases
substantially all of the assigning paths stock or assets relating to that
portion of such party's business that is related to the subject of this
Agreement. Any attempted assignment, delegation or transfer in
contravention of this Agreement shall be null and void.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.
8.6 NOTICES. Unless Otherwise provided herein, any notice, report, payment or
document to be given by one party to the other shall be in writing and
shall be deemed given when delivered personally or mailed by certified or
registered mail, postage prepaid (such mailed notice to be effective on the
date which is three (3) business days after the date of mailing), or sent
by nationally recognized overnight courier (such notice sent by courier to
be effective one business day after it is deposited with such courier), or
sent by telefax (such notice sent by telefax to be effective when sent, It
confirmed by certified or registered mail or overnight courier as
aforesaid):
If to DSM:
Gist-brocades Holding AG
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ van Pul
Phone: ▇▇.▇▇▇▇.▇▇▇▇▇
Fax: ___▇▇.▇▇▇▇.▇▇▇▇▇
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If to Cubist:
Cubist Pharmaceuticals, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇.▇.
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telefax No.: ____(▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other place as any party may designate as to itself by written
notice to the other party.
8.7 SEVERABILITY. In the event any provision of this Agreement shelf for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other tern
or provision hereof. The parties agree that they will negotiate in good
faith or will permit a court or arbitrator to replace any provision hereof
so held invalid, illegal or unenforceable with a valid provision which is
as similar as possible in substance to THE invalid, illegal or
unenforceable provision.
8.8 FORCE MAJEURE. Except as otherwise provided in this Agreement, in the event
that a delay or failure of a party to comply with any obligation, other
than a payment obligation, created by this Agreement is caused by a Force
Majeure condition, that obligation shall be suspended during the
continuance of the Force Majeure condition.
8.9 CAPTIONS. Captions of the sections and subsections of this Agreement are
for reference purposes only and do not constitute terms or conditions of
this Agreement and shall not limit or affect the meaning or construction of
the terms and conditions hereof.
8.10 WORD MEANINGS. Words such as HEREIN, HEREINAFTER, HEREOF and HEREUNDER
refer to this Agreement as a whole and not merely to a section or paragraph
in which such words appear, unless the context otherwise requires. The
singular shall include the plural, and each masculine, feminine and neuter
reference shall include and refer also to the others, unless the context
otherwise requires.
8.11 FURTHER ASSURANCES. Each party covenants and agrees that, subsequent to the
execution and delivery of this Agreement and without any additional
consideration, it will execute and deliver any further legal instruments
and perform any acts which are or become reasonably necessary to effectuate
the purposes of this Agreement.
8.12 RULES OF CONSTRUCTION. The parties agree that they have participated
equally in the formation of this Agreement and that the language and terms
of this Agreement shall not be construed against either party by reason of
the extent to which such party or its professional advisors participated in
the preparation of this Agreement.
* Confidential treatment requested: Material has been omitted and filed with
the Commission.
-13-
8.13 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shaft
constitute one and the same instrument. In making proof of this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart.
8.14 INSURANCE. DSM shall supervise that DSM Capua shall purchase and maintain
in place the insurance provided for in Article 7.5 of the Manufacturing and
Supply Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement, be executed
lay their respective duly authorized offers, and have duly delivered and
executed this Agreement under seal as of the date first set forth above.
CUBIST PHARMACEUTICALS, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Title:
GIST-BROCADES HOLDING A.G.
By:
-------------------------
Title:
By: /s/ ▇. ▇▇▇▇▇▇
-------------------------
Title:
LIST OF EXHIBITS:
A. List of Patent and Patent Applications
B. Daptomycin Structure
C: MoU
D: Process
E: Facility Description
F: Requirements
G: Preliminary Engineering list
H: Milestones
I: Qualification Certificates and cGMPs
J: Insurance
