CHIRON'S TERMINATION RIGHTS UNDER
THIS SECTION 13.2 SHALL NOT APPLY ON A LICENSED PRODUCT-BY-LICENSED PRODUCT
BASIS.
13.3.
TERMINATION BY EITHER PARTY UPON BANKRUPTCY OR INSOLVENCY. THIS AGREEMENT
MAY BE TERMINATED IN ITS ENTIRETY BY EITHER PARTY BY GIVING WRITTEN NOTICE OF
TERMINATION TO THE OTHER PARTY IN THE EVENT THAT SUCH OTHER PARTY FILES OR
INSTITUTES ANY BANKRUPTCY, LIQUIDATION OR RECEIVERSHIP PROCEEDINGS, OR IN THE
EVENT THAT SUCH OTHER PARTY MAKES AN ASSIGNMENT OF A SUBSTANTIAL PORTION OF THE
ASSETS OF SUCH OTHER PARTY FOR THE BENEFIT OF ITS CREDITORS; PROVIDED, HOWEVER,
THAT, IN THE CASE OF ANY INVOLUNTARY BANKRUPTCY PROCEEDING SUCH RIGHT TO
TERMINATE SHALL ONLY BECOME EFFECTIVE IF SUCH OTHER PARTY CONSENTS TO THE
INVOLUNTARY BANKRUPTCY OR SUCH PROCEEDING IS NOT DISMISSED WITHIN [*] AFTER THE
FILING THEREOF.
13.4.
TERMINATION FOR BREACH.
(A)
NOTICE. IF EITHER PARTY BELIEVES THAT THE OTHER IS IN MATERIAL BREACH OF
THIS AGREEMENT WITH RESPECT TO ONE OR MORE LICENSED PRODUCTS OR IF CUBIST
BELIEVES THAT CHIRON IS IN MATERIAL BREACH OF THE SUPPLY AGREEMENT WITH RESPECT
TO ONE OR MORE LICENSED PRODUCTS, THEN THE PARTY HOLDING SUCH BELIEF (THE
"NON-BREACHING PARTY") MAY DELIVER NOTICE OF SUCH BREACH TO THE OTHER PARTY (THE
"NOTIFIED PARTY"). A BREACH BY CHIRON OF ITS DILIGENCE OBLIGATIONS UNDER SECTION
5.1 OR UNDER SECTION 6.1 HEREOF AND A BREACH BY CUBIST OF ITS OBLIGATION UNDER
SECTION 4.1 HEREOF, EXCEPT AS SPECIFIED OTHERWISE, SHALL BE DEEMED TO BE A
MATERIAL BREACH OF THIS AGREEMENT BY CHIRON OR CUBIST, AS THE CASE MAY BE. THE
NOTIFIED PARTY SHALL HAVE NINETY (90) DAYS TO CURE SUCH BREACH, PROVIDED THAT,
IF CURE CANNOT BE REASONABLY EFFECTED WITHIN SUCH NINETY (90) DAY PERIOD, THE
NOTIFIED PARTY MAY ELECT TO DELIVER TO THE NON-BREACHING PARTY WITHIN SUCH
NINETY (90) DAY PERIOD A PLAN TO CURE SUCH BREACH WITHIN A TIMEFRAME THAT IS
REASONABLY PROMPT IN LIGHT OF THE CIRCUMSTANCES THEN PREVAILING, AND THE
NON-BREACHING PARTY SHALL HAVE THE RIGHT TO APPROVE OR REJECT IN WRITING SUCH
PROPOSED PLAN IN ITS ABSOLUTE DISCRETION.
IF THE NON-BREACHING PARTY APPROVES
IN WRITING SUCH PROPOSED PLAN, THEN THE CURE PERIOD WILL BE EXTENDED IN
ACCORDANCE WITH THE TERMS OF SUCH PLAN AND THE NOTIFIED PARTY SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO CARRY OUT SUCH PLAN AND CURE THE BREACH IN
ACCORDANCE WITH THE PROVISIONS OF SUCH PLAN.
(B)
FAILURE TO CURE. IF THE NOTIFIED PARTY FAILS TO CURE SUCH BREACH AS
PROVIDED FOR IN SECTION 13.4(A), THE NON-BREACHING PARTY MAY TERMINATE THIS
AGREEMENT EITHER IN ITS ENTIRETY OR WITH RESPECT TO ONE OR MORE LICENSED
PRODUCTS UPON WRITTEN NOTICE TO THE NOTIFIED PARTY, PROVIDED THAT, THE
NON-BREACHING PARTY GIVES SUCH WRITTEN NOTICE OF TERMINATION WITHIN [*] AFTER
THE NOTIFIED PARTY HAS FAILED TO CURE SUCH BREACH AS PROVIDED FOR IN SECTION
13.4(A).
(C)
DISPUTES. IF A PARTY GIVES NOTICE OF TERMINATION UNDER THIS SECTION 13.4
AND THE OTHER PARTY DISPUTES WHETHER SUCH TERMINATION IS PROPER UNDER THIS
SECTION 13.4, THEN THE ISSUE OF WHETHER THIS AGREEMENT MAY PROPERLY