PARTY AT THE INDEMNIFYING PARTY'S
EXPENSE AND WILL MAKE AVAILABLE TO THE INDEMNIFYING PARTY REASONABLY REQUESTED
INFORMATION UNDER THE CONTROL OF THE INDEMNIFIED PARTY, WHICH INFORMATION WILL
BE SUBJECT TO APPLICABLE CONFIDENTIALITY OBLIGATIONS SET FORTH IN ARTICLE IX
ABOVE.
THE INDEMNIFYING PARTY SHALL PERMIT THE INDEMNIFIED PARTY TO PARTICIPATE
IN (BUT NOT TO CONTROL) THE DEFENSE OF THE THIRD
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[ * ] = Confidential treatment of certain confidential information contained in
this document, marked by brackets, is being sought pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
PARTY CLAIM THROUGH COUNSEL OF ITS CHOOSING TO THE EXTENT IT HAS THE ABILITY TO
DO SO (AT THE INDEMNIFIED PARTY'S EXPENSE).
NOTWITHSTANDING THE FOREGOING, THE
INDEMNIFIED PARTY WILL [***].
10.5
LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED
HEREIN, OTHER THAN TO THE EXTENT RESULTING FROM A BREACH OF ARTICLE IV
(EXCLUSIVITY) OR ARTICLE IX (CONFIDENTIALITY), IN NO EVENT WILL ARRAY OR AMGEN
BE LIABLE TO THE OTHER OR ANY OF THE OTHER'S AFFILIATES FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOST
PROFITS, BUSINESS OR GOODWILL) SUFFERED OR INCURRED BY SUCH OTHER PARTY OR ITS
AFFILIATES IN CONNECTION WITH A BREACH OR ALLEGED BREACH OF THIS AGREEMENT.
THE
FOREGOING SENTENCE SHALL NOT BE CONSTRUED TO LIMIT THE OBLIGATIONS OF EITHER
PARTY TO INDEMNIFY THE OTHER PARTY FROM AND AGAINST THIRD PARTY CLAIMS AS SET
FORTH IN SECTION 10.4 (INDEMNIFICATION).
10.6
COVENANTS.
EACH PARTY HEREBY COVENANTS TO THE OTHER PARTY THAT, DURING
THE TERM OF THE AGREEMENT:
10.6.1
IT AND ITS AFFILIATES WILL NOT GRANT ANY RIGHT TO ANY THIRD PARTY
RELATING TO ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT LICENSED BY IT OR ITS
AFFILIATES TO THE OTHER PARTY HEREUNDER THAT CONFLICTS WITH THE RIGHTS GRANTED
TO THE OTHER PARTY HEREUNDER.
10.6.2
IT AND ITS AFFILIATES WILL NOT KNOWINGLY USE IN CONNECTION WITH THE
DISCOVERY PROGRAM ANY EMPLOYEE, CONSULTANT OR INVESTIGATOR THAT HAS BEEN
DEBARRED OR THE SUBJECT OF DEBARMENT PROCEEDINGS BY ANY REGULATORY AGENCY.
ARTICLE XI - TERM AND TERMINATION
11.1
TERM.
UNLESS EARLIER TERMINATED, THE AGREEMENT WILL CONTINUE IN FULL
FORCE AND EFFECT, ON A PRODUCT-BY-PRODUCT AND COUNTRY-BY-COUNTRY BASIS UNTIL THE
DATE NO FURTHER PAYMENTS ARE DUE UNDER ARTICLE VI ABOVE WITH RESPECT TO SALES OF
THE APPLICABLE PRODUCT IN THE APPLICABLE COUNTRY, AT WHICH TIME THE LICENSES
GRANTED TO AMGEN PURSUANT TO ARTICLE V WILL BE FULLY PAID-UP AND ROYALTY- FREE
WITH RESPECT TO SUCH PRODUCT IN SUCH COUNTRY.
11.2
TERMINATION FOR BREACH.
EITHER PARTY MAY TERMINATE THIS AGREEMENT IN
THE EVENT THE OTHER PARTY SHALL HAVE MATERIALLY BREACHED IN THE PERFORMANCE OF
ANY OF ITS MATERIAL OBLIGATIONS HEREUNDER, AND SUCH BREACH SHALL HAVE CONTINUED
FOR [***] (OR SUCH EXTENDED PERIOD AS SET FORTH BELOW, IF APPLICABLE) AFTER
WRITTEN NOTICE THEREOF WAS PROVIDED TO THE BREACHING PARTY BY THE NON-BREACHING
PARTY.
ANY TERMINATION SHALL BECOME EFFECTIVE AT THE END OF SUCH [***] PERIOD
UNLESS THE BREACHING PARTY (OR ANY OTHER PARTY ON ITS BEHALF) HAS CURED ANY