DELIVER
NOTICE OF SUCH BREACH TO THE OTHER PARTY.
IN SUCH NOTICE THE NON-BREACHING
PARTY SHALL IDENTIFY THE ACTIONS OR CONDUCT THAT IT WISHES SUCH PARTY TO TAKE
FOR AN ACCEPTABLE AND PROMPT CURE OF SUCH BREACH; PROVIDED THAT SUCH IDENTIFIED
ACTIONS OR CONDUCT SHALL NOT BE BINDING UPON THE OTHER PARTY WITH RESPECT TO THE
ACTIONS THAT IT MAY NEED TO TAKE TO CURE SUCH BREACH.
THE ALLEGEDLY BREACHING
PARTY SHALL HAVE NINETY (90) DAYS TO EITHER CURE SUCH BREACH OR, IF CURE CANNOT
BE REASONABLY EFFECTED WITHIN SUCH NINETY (90) DAY PERIOD, TO DELIVER TO THE
OTHER PARTY A PLAN FOR CURING SUCH BREACH WHICH THE BREACHING PARTY BELIEVES IS
REASONABLY SUFFICIENT TO EFFECT A CURE WITHIN A REASONABLE PERIOD; PROVIDED THAT
THE BREACHING PARTY MUST NOTIFY THE NON-BREACHING PARTY AS SOON AS PRACTICABLE
AFTER THE
22
BREACHING PARTY BECOMES AWARE THAT IT WILL NOT BE ABLE TO CURE THE BREACH WITHIN
THE NINETY (90) DAY PERIOD.
FOLLOWING AGREEMENT TO SUCH PLAN BY THE OTHER
PARTY, SUCH AGREEMENT NOT TO BE UNREASONABLY WITHHELD, THE BREACHING PARTY SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO CARRY OUT THE PLAN AND CURE THE BREACH.
IF THE PARTY RECEIVING NOTICE OF BREACH FAILS TO CURE SUCH BREACH WITHIN THE
NINETY (90) DAY PERIOD OR THE CURE PERIOD IDENTIFIED IN THE PROPOSED CORRECTIVE
PLAN, AS APPLICABLE, OR THE PARTY PROVIDING THE NOTICE REASONABLY DETERMINES
THAT THE PROPOSED CORRECTIVE PLAN OR THE ACTIONS BEING TAKEN TO CARRY IT OUT IS
NOT COMMERCIALLY PRACTICABLE, THE PARTY ORIGINALLY DELIVERING THE NOTICE MAY
DECLARE A BREACH HEREUNDER UPON THIRTY (30) DAYS ADVANCE WRITTEN NOTICE.
SUBJECT TO SECTION 9.3(B), SUCH NOTICE SHALL EFFECTIVELY TERMINATE THIS
AGREEMENT UPON EXPIRATION OF SUCH THIRTY (30) DAY PERIOD.
(b)
Notwithstanding the foregoing, if the
allegedly breaching Party disputes in good faith the existence or materiality of
any such breach, and provides notice to the other Party (the "Other Party") of
such dispute within such ninety (90) day period, the Other Party shall not have
the right to terminate this Agreement in accordance with this Section 9.3 unless
and until it has been determined in accordance with Section 12.4 that this
Agreement was materially breached by the allegedly breaching Party and that
Party fails to cure such breach within ninety (90) days following such
determination.
It is understood and acknowledged that during the pendency of
such a dispute, all of the terms and conditions of this Agreement shall remain
in effect and the Parties shall continue to perform all of their respective
obligations hereunder.
(c)
This Section 9.3 shall be subject to and
shall not limit the provisions of Section 9.4 and Section 9.5.
SECTION 9.4
CONSEQUENCES OF TERMINATION.
9.4.1
LICENSES AND ASSIGNMENT OBLIGATIONS.
BMS' RIGHTS AND
PHARMACOPEIA'S OBLIGATIONS UNDER ARTICLE 2 SHALL SURVIVE TERMINATION AND
EXPIRATION OF THIS AGREEMENT.
9.4.2
RETURN OF INFORMATION AND MATERIALS.
UPON EARLY
TERMINATION OF THIS AGREEMENT IN ITS ENTIRETY BY EITHER PARTY PURSUANT TO THIS
ARTICLE 9, EACH PARTY WILL RETURN TO THE OTHER (OR DESTROY, AS