EACH PARTY COVENANTS TO THE OTHER THAT IT
WILL NOT PRACTICE THE PATENTS OR KNOW-HOW OF THE OTHER PARTY EXCEPT AS EXPRESSLY
PERMITTED IN THE LICENSES GRANTED TO IT IN THIS AGREEMENT.
2.7.
EXCLUSIVITY.
(A)
CHIRON.
CHIRON SHALL NOT DEVELOP, PROMOTE, SELL OR OFFER FOR SALE LICENSED
PRODUCTS FOR USE OUTSIDE OF THE TERRITORY.
CHIRON SHALL REQUIRE ITS
DISTRIBUTORS WHO SELL LICENSED PRODUCTS TO MAKE A COVENANT SIMILAR TO THAT
PROVIDED IN THIS SECTION 2.7(A) WITH RESPECT TO LICENSED PRODUCTS.
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
14
(B)
CUBIST.
CUBIST SHALL NOT PROMOTE, SELL, OR OFFER FOR SALE A LICENSED
PRODUCT FOR USE WITHIN THE TERRITORY (EXCEPT FOR SALES TO CHIRON PURSUANT TO
THIS AGREEMENT OR THE SUPPLY AGREEMENT).
CUBIST SHALL REQUIRE ANY OF ITS OTHER
LICENSEES AND DISTRIBUTORS OF LICENSED PRODUCTS TO MAKE A COVENANT SIMILAR TO
THAT PROVIDED IN THIS SECTION 2.7(B) WITH RESPECT TO LICENSED PRODUCTS.
2.8.
SUBLICENSES AND TRANSFERS OF CHIRON TECHNOLOGY OR CHIRON JOINT TECHNOLOGY
RIGHTS.
CHIRON SHALL NOT SUBLICENSE OR TRANSFER ANY INTEREST IN THE CHIRON
TECHNOLOGY OR THE CHIRON JOINT TECHNOLOGY RIGHTS TO ANY THIRD PARTY UNLESS SUCH
THIRD PARTY SHALL HAVE ACKNOWLEDGED AND AGREED IN WRITING THAT ANY SUCH
SUBLICENSE OR TRANSFER TO SUCH THIRD PARTY, AND THE RIGHTS ACQUIRED BY ANY SUCH
THIRD PARTY IN AND TO THE CHIRON TECHNOLOGY AND THE CHIRON JOINT TECHNOLOGY
RIGHTS AS A RESULT OF SUCH SUBLICENSE OR TRANSFER, SHALL BE SUBJECT TO ANY AND
ALL RIGHTS THAT CHIRON MAY HAVE GRANTED TO CUBIST PURSUANT TO THIS AGREEMENT AND
THE SUPPLY AGREEMENT.
2.9.
RIGHTS OF FIRST NEGOTIATION.
CUBIST HEREBY GRANTS CHIRON (A) A RIGHT OF
FIRST NEGOTIATION TO OBTAIN COMMERCIALIZATION RIGHTS IN THE TERRITORY WITH
RESPECT TO ANY AND ALL ADDITIONAL DAPTOMYCIN PRODUCTS, AND (B) A RIGHT OF FIRST
NEGOTIATION TO OBTAIN COMMERCIALIZATION RIGHTS IN THE TERRITORY TO ANY AND ALL
DIRECTLY COMPETITIVE PRODUCTS, IN EACH CASE, ON THE FOLLOWING TERMS:
IN THE
EVENT THAT CUBIST PROPOSES TO GRANT, SELL, ASSIGN OR OTHERWISE TRANSFER TO A
THIRD PARTY ALL OR ANY PORTION OF ANY SUCH COMMERCIALIZATION RIGHTS, REGARDLESS
OF WHETHER CUBIST OR A THIRD PARTY MAKES THE INITIAL PROPOSAL, THEN CUBIST WILL
PROMPTLY NOTIFY CHIRON IN WRITING THEREOF. AS SOON AS PRACTICABLE, CHIRON WILL
RESPOND TO CUBIST IN WRITING REGARDING ITS INTEREST IN ENTERING INTO
NEGOTIATIONS TO OBTAIN SUCH RIGHTS AND THE PARTIES WILL PROMPTLY [*] FOLLOWING
THE DATE THAT CUBIST GIVES SUCH WRITTEN NOTICE TO CHIRON. UPON COMMENCEMENT OF
SUCH NEGOTIATIONS, [*] TO GRANT COMMERCIALIZATION RIGHTS WITH RESPECT TO SUCH
ADDITIONAL DAPTOMYCIN PRODUCT OR DIRECTLY COMPETITIVE PRODUCT.
IF CHIRON AND
CUBIST ARE UNABLE TO AGREE ON MATERIAL TERMS WITHIN [*] AFTER RECEIPT BY CHIRON
OF CUBIST'S NOTICE OF ITS INTENT TO TRANSFER COMMERCIALIZATION RIGHTS, THEN
CUBIST WILL [*].
CHIRON SHALL HAVE AN EXCLUSIVE [*] PERIOD TO PRESENT (BUT
SHALL NOT BE OBLIGATED TO PRESENT) TO CUBIST A REVISED PROPOSAL.
IF CUBIST DOES
NOT ACCEPT CHIRON'S REVISED PROPOSAL UPON EXPIRATION OF SUCH EXCLUSIVE PERIOD,
IN ITS SOLE