UNDER THIS AGREEMENT.
CELGENE'S OBLIGATION TO INDEMNIFY THE ARRAY
INDEMNITEES PURSUANT TO THE FOREGOING SENTENCE SHALL NOT APPLY TO THE EXTENT
THAT ANY SUCH LOSSES ARE LOSSES FOR WHICH ARRAY IS OBLIGATED TO INDEMNIFY THE
CELGENE INDEMNITEES PURSUANT TO SECTION 11.4.1 ABOVE.
11.4.3
PROCEDURE.
TO BE ELIGIBLE TO BE INDEMNIFIED HEREUNDER, THE
INDEMNIFIED PARTY SHALL PROVIDE THE INDEMNIFYING PARTY WITH PROMPT WRITTEN
NOTICE OF THE THIRD-PARTY CLAIM GIVING RISE TO THE INDEMNIFICATION OBLIGATION
PURSUANT TO THIS SECTION 11.4 AND THE EXCLUSIVE RIGHT TO DEFEND (WITH THE
REASONABLE COOPERATION OF THE INDEMNIFIED PARTY) OR SETTLE ANY SUCH CLAIM USING
COUNSEL OF ITS CHOICE; PROVIDED, HOWEVER, THAT THE INDEMNIFYING PARTY SHALL NOT
ENTER INTO ANY SETTLEMENT THAT ADMITS FAULT, WRONGDOING OR DAMAGES WITHOUT THE
INDEMNIFIED PARTY'S WRITTEN CONSENT, SUCH CONSENT NOT TO BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO
PARTICIPATE, AT ITS OWN EXPENSE AND WITH COUNSEL OF ITS CHOICE, IN THE DEFENSE
OF ANY CLAIM OR SUIT THAT HAS BEEN ASSUMED BY THE INDEMNIFYING PARTY.
ARTICLE XII
TERM AND TERMINATION
12.1
TERM.
UNLESS EARLIER TERMINATED, THIS AGREEMENT AND THE PAYMENT
OBLIGATIONS UNDER ARTICLE 6 WILL CONTINUE IN EFFECT, ON A LICENSED
PRODUCT-BY-LICENSED PRODUCT AND COUNTRY-BY-COUNTRY BASIS UNTIL CELGENE HAS NO
REMAINING ROYALTY PAYMENT OBLIGATIONS IN SUCH COUNTRY WITH RESPECT TO SUCH
LICENSED PRODUCT PURSUANT TO SECTION 6.5 ABOVE.
EFFECTIVE UPON THE EXPIRATION
(BUT NOT EARLIER TERMINATION) OF THIS AGREEMENT, ON A LICENSED
PRODUCT-BY-LICENSED PRODUCT AND COUNTRY-BY-COUNTRY BASIS, ARRAY HEREBY GRANTS TO
CELGENE A FULLY-PAID-UP, ROYALTY-FREE LICENSE UNDER ARRAY TECHNOLOGY AND ARRAY'S
INTEREST IN COLLABORATION TECHNOLOGY TO MAKE, HAVE MADE, USE, SELL, OFFER FOR
SALE AND IMPORT SUCH COLLABORATION COMPOUNDS, COLLABORATION BACK-UP COMPOUNDS
AND LICENSED PRODUCTS IN SUCH COUNTRY(IES) WITHOUT FURTHER PAYMENT OR
CONSIDERATION TO ARRAY.
69
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.
12.2
TERMINATION FOR BREACH.
12.2.1
TERMINATION.
IN THE EVENT A PARTY SHALL HAVE MATERIALLY BREACHED OR
DEFAULTED IN THE PERFORMANCE OF ANY OF ITS MATERIAL OBLIGATIONS HEREUNDER, THE
OTHER PARTY MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 12.2.
THE NON-BREACHING PARTY SHALL PROVIDE WRITTEN NOTICE TO THE OTHER PARTY OF ITS
MATERIAL BREACH OR DEFAULT IN THE PERFORMANCE OF ANY OF ITS MATERIAL
OBLIGATIONS.
IF THE PARTY RECEIVING SUCH NOTICE DISPUTES THAT THE NON-BREACHING
PARTY IS ENTITLED TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 12.2.1
(INCLUDING, WITHOUT LIMITATION, WHETHER A BREACH OR DEFAULT OCCURRED OR WHETHER
SUCH BREACH OR DEFAULT WAS MATERIAL), THEN THE MATTER SHALL BE REFERRED TO
BINDING ARBITRATION PURSUANT TO SECTION 12.2.2 BELOW.
ANY PERMITTED TERMINATION
SHALL BECOME EFFECTIVE (A) IF NO ARBITRATION OCCURS, NINETY (90) DAYS AFTER THE
EFFECTIVE DATE OF SUCH NOTICE, (B) IF ARBITRATION IS RESOLVED IN FAVOR OF THE
NON-BREACHING PARTY, NINETY (90) DAYS AFTER THE ARBITRATOR'S RULING, UNLESS, IN
EITHER CASE, THE BREACHING PARTY (OR ANY OTHER PARTY