DISCRETION, CUBIST WILL BE FREE TO ENTER INTO NEGOTIATIONS WITH ANY
THIRD PARTY, PROVIDED, HOWEVER, CHIRON SHALL HAVE THE NON-EXCLUSIVE RIGHT TO
CONTINUE DISCUSSIONS WITH CUBIST.
IF CUBIST DETERMINES THAT IT IS LIKELY TO
ACCEPT TERMS WITH A THIRD PARTY FOR SUCH COMMERCIALIZATION RIGHTS, CUBIST WILL
OFFER CHIRON AN OPPORTUNITY FOR [*], AT CHIRON'S HEADQUARTERS OR AT ANY OTHER
LOCATION THAT THE PARTIES MAY MUTUALLY AGREE UPON, WITHIN [*] OF CUBIST'S
NOTIFICATION TO CHIRON THAT IT IS AFFORDING CHIRON SUCH OPPORTUNITY TO MEET, FOR
THE PURPOSE OF EXPLAINING IN REASONABLE DETAIL THE REASONS THAT CUBIST IS LIKELY
TO ACCEPT SUCH TERMS.
CHIRON SHALL HAVE A PERIOD OF [*] FROM THE DATE OF SUCH
MEETING TO PRESENT TO CUBIST [*] AND CUBIST HEREBY AGREES THAT IT WILL NOT
ACCEPT THE THIRD PARTY TERMS UNTIL THE EARLIER OF (A) THE EXPIRATION OF SUCH [*]
PERIOD, (B) THE DATE THAT CHIRON AFFIRMATIVELY DECLINES TO MAKE AN OFFER, AND
(C) THE DATE THAT CHIRON PROPOSES, AND CUBIST REJECTS, SUCH OFFER.
FOR THE
AVOIDANCE OF DOUBT, CUBIST IS NOT OBLIGATED TO OFFER THE FOREGOING OPPORTUNITY
FOR [*].
CUBIST WILL SELECT THE PARTY WITH WHICH IT WISHES TO ENTER INTO
NEGOTIATIONS FOR A DEFINITIVE AGREEMENT IN ITS SOLE DISCRETION, PROVIDED,
HOWEVER, IN MAKING ITS DETERMINATION, [*].
CHIRON HEREBY ACKNOWLEDGES AND
AGREES THAT [*]
2.10.
RIGHT OF CO-NEGOTIATION.
CHIRON HEREBY GRANTS CUBIST A RIGHT OF
CO-NEGOTIATION TO OBTAIN ALL OR ANY PORTION OF THE COMMERCIALIZATION RIGHTS IN
THE TERRITORY WITH RESPECT TO ANY AND
* CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED WITH THE
COMMISSION
15
all Directly Competitive Products on the following terms:
In the event that
Chiron proposes to grant, sell, assign or otherwise transfer to a Third Party
all or any portion of such Commercialization rights in the Territory for a
Directly Competitive Product, regardless of whether Chiron or a Third Party
makes the initial proposal, then Chiron will promptly notify Cubist in writing
thereof and thereafter, Cubist, to the extent that it remains so interested,
shall be included among the interested parties with whom Chiron holds
discussions for the transfer of such rights until such time as Chiron selects
the party with whom it wishes to enter into negotiations for a definitive
agreement for such rights. Cubist acknowledges that [*].
Without limiting the
generality of the foregoing, Cubist acknowledges that Chiron shall have [*] for
the Territory as Chiron sees fit.
Except as expressly provided in Section 2.11,
Chiron shall have no obligation or liability to Cubist for selecting a Third
Party as its Commercialization partner for Directly Competitive Products in the
Territory.
2.11.
MARKETING A DIRECTLY COMPETITIVE PRODUCT.
SUBJECT TO THE RIGHT OF FIRST
NEGOTIATION IN FAVOR OF CHIRON IN SECTION 2.9, AND THE RIGHT OF CO-NEGOTIATION
IN FAVOR OF CUBIST IN SECTION 2.10, THE PARTIES ACKNOWLEDGE THAT EITHER PARTY
MAY, AT ANY TIME DURING THE RESTRICTED PERIOD APPLICABLE TO SUCH PARTY, MARKET A
DIRECTLY COMPETITIVE PRODUCT IN THE TERRITORY.
IN THE EVENT THAT EITHER PARTY
LAUNCHES, EITHER