EVENT THAT THIS
AGREEMENT IS TERMINATED BY AMGEN PURSUANT TO SECTION 11.2 FOR ARRAY'S MATERIAL
BREACH OR BY AMGEN PURSUANT TO SECTION 11.4, ALL LICENSES GRANTED TO ARRAY
HEREUNDER SHALL TERMINATE AND, UPON WRITTEN REQUEST OF ARRAY, THE PARTIES AGREE
TO NEGOTIATE IN GOOD FAITH FOR ARRAY TO OBTAIN A LICENSE OF THE SAME SCOPE AS
SET FORTH IN SECTION 5.3, ON MUTUALLY ACCEPTABLE TERMS AND CONDITIONS.
11.6
TERMINATION NOT SOLE REMEDY.
TERMINATION IS NOT THE SOLE REMEDY UNDER
THIS AGREEMENT AND, WHETHER OR NOT TERMINATION IS EFFECTED, ALL OTHER REMEDIES
WILL REMAIN AVAILABLE EXCEPT AS AGREED OR OTHERWISE PROVIDED HEREIN.
11.7
CHANGE OF CONTROL; TERMINATION OF CO-PROMOTION RIGHT.
ARRAY WILL GIVE
AMGEN WRITTEN NOTICE [***] THE PUBLIC ANNOUNCEMENT OR DISCLOSURE OF, OR IF
EARLIER THE SIGNING OF ANY AGREEMENT FOR, A PROPOSED CHANGE OF CONTROL OF
ARRAY.
IN THE EVENT OF THE OCCURRENCE OF, SIGNING OF AN AGREEMENT FOR, OR
PUBLIC ANNOUNCEMENT OR DISCLOSURE OF, A CHANGE OF CONTROL OF ARRAY INVOLVING A
THIRD PARTY THAT IS AN INDUSTRY BUYER, AMGEN WILL HAVE THE RIGHT [***]
(I) IMMEDIATELY UPON WRITTEN NOTICE TO ARRAY IF ARRAY HAS NOT [***], OR (II) IF
ARRAY HAS [***], UPON AT LEAST [***] AND NO MORE THAN [***] NOTICE (AS SPECIFIED
BY AMGEN IN ITS NOTICE), AND ARRAY SHALL CONTINUE TO [***] IN ACCORDANCE WITH
THIS AGREEMENT DURING THE NOTICE PERIOD AND SHALL, AS DIRECTED BY AMGEN
(INCLUDING WITH RESPECT TO TIMING), [***] AND IN COMPLIANCE WITH LAW AND COMMON
STANDARDS OF PHARMACEUTICAL PRACTICE.
FOR CLARITY, IN THE EVENT OF SUCH A
NOTICE OF [***] BY AMGEN PURSUANT TO THIS SECTION 11.7 OF [***], [***], BUT THE
OTHER PROVISIONS OF THIS AGREEMENT SHALL NOT TERMINATE, AND THIS AGREEMENT SHALL
OTHERWISE CONTINUE IN EFFECT UNLESS AND UNTIL IT EXPIRES OR IS TERMINATED IN
ACCORDANCE WITH THIS ARTICLE XI.
"INDUSTRY BUYER" MEANS AN ENTITY THAT
(X) TOGETHER WITH ITS AFFILIATES, IN THE CALENDAR YEAR PRECEDING THE APPLICABLE
CHANGE OF CONTROL OF ARRAY, HAS ANNUAL PHARMACEUTICAL AND/OR BIOTECHNOLOGY
REVENUES OF MORE THAN [***], OR (Y) AT THE TIME OF THE APPLICABLE CHANGE OF
CONTROL OF ARRAY HAS A PRODUCT FOR WHICH IT HAS EITHER FILED AN APPLICATION FOR
MARKETING APPROVAL (WHICH APPLICATION REMAINS PENDING), OR HAS OBTAINED
MARKETING APPROVAL, IN THE UNITED STATES OR A MAJOR EUROPEAN COUNTRY (1) [***],
OR (2) [***]; IN ANY SUCH CASE, UNLESS [***].
ARTICLE XII - MISCELLANEOUS
12.1
PUBLICITY.
EACH OF THE PARTIES HERETO AGREES NOT TO DISCLOSE TO ANY
THIRD PARTY ANY TERMS OF THIS AGREEMENT THAT ARE NOT THEN PUBLICLY AVAILABLE,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY HERETO; EXCEPT TO ADVISORS
AND ACTUAL OR POTENTIAL INVESTORS (EXCLUDING BIOTECHNOLOGY OR PHARMACEUTICAL
COMPANIES OR THEIR AFFILIATES, EXCEPT FINANCIAL ENTITIES THAT OWN OR CONTROL ONE
OR
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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.
MORE BIOTECHNOLOGY OR PHARMACEUTICAL COMPANIES AS