SUCH
BREACH OR DEFAULT PRIOR TO THE EXPIRATION OF THE [***] PERIOD OR, IF SUCH BREACH
IS CAPABLE OF BEING CURED, BUT NOT REASONABLY CAPABLE OF BEING CURED WITHIN SUCH
[***] PERIOD, THE BREACHING PARTY IS DILIGENTLY UNDERTAKING SUBSTANTIVE AND
PROGRESSIVE EFFORTS TO CURE SUCH BREACH ON OR BEFORE SUCH DATE, IN WHICH CASE
THE CURE PERIOD
- 53 -
[ * ] = 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.
SHALL BE EXTENDED FOR SO LONG AS SUCH SUBSTANTIVE AND PROGRESSIVE EFFORTS ARE
CONTINUING DURING SUCH PERIOD, UP TO AN ADDITIONAL [***].
11.3
TERMINATION UPON NOTICE. AMGEN MAY TERMINATE THIS AGREEMENT IN ITS
ENTIRETY AT ANY TIME (I) UPON [***] WRITTEN NOTICE TO ARRAY IF ANY PHASE II OR
PHASE III CLINICAL TRIAL OF A PRODUCT IS "ON-GOING" (AS DEFINED IN
SECTION 11.5.2 BELOW) AT THE TIME OF SUCH NOTICE (OR IF AMGEN COMMENCES SUCH A
PHASE II OR PHASE III CLINICAL TRIAL DURING THE PERIOD BETWEEN SUCH NOTICE AND
THE EFFECTIVE DATE OF SUCH TERMINATION), OR (II) OTHERWISE, UPON [***] WRITTEN
NOTICE TO ARRAY.
11.4
TERMINATION ON BANKRUPTCY.
EITHER PARTY MAY TERMINATE THIS AGREEMENT,
IF, AT ANY TIME, THE OTHER PARTY SHALL FILE IN ANY COURT OR AGENCY PURSUANT TO
ANY STATUTE OR REGULATION OF ANY STATE OR COUNTRY, A PETITION IN BANKRUPTCY OR
INSOLVENCY OR FOR REORGANIZATION OR FOR AN ARRANGEMENT OR FOR THE APPOINTMENT OF
A RECEIVER OR TRUSTEE OF THE PARTY OR OF SUBSTANTIALLY ALL OF ITS ASSETS, OR IF
THE OTHER PARTY SHALL BE SERVED WITH AN INVOLUNTARY PETITION AGAINST IT, FILED
IN ANY INSOLVENCY PROCEEDING, AND SUCH PETITION SHALL NOT BE DISMISSED WITHIN
SIXTY (60) DAYS AFTER THE FILING THEREOF, OR IF THE OTHER PARTY SHALL PROPOSE OR
BE A PARTY TO ANY DISSOLUTION OR LIQUIDATION, UNLESS IN CONNECTION WITH SUCH
DISSOLUTION OR LIQUIDATION THIS AGREEMENT IS ASSIGNED UNDER SECTION 12.4, OR IF
THE OTHER PARTY SHALL MAKE AN ASSIGNMENT OF SUBSTANTIALLY ALL OF ITS ASSETS FOR
THE BENEFIT OF CREDITORS.
11.5
EFFECT OF TERMINATION.
11.5.1
CERTAIN PAYMENT TERMS.
IN THE EVENT OF A TERMINATION OF THIS AGREEMENT
UNDER SECTION 11.2 BY REASON OF A MATERIAL BREACH BY AMGEN, OR ANY TERMINATION
OF THIS AGREEMENT UNDER SECTION 11.3 BY AMGEN, OR TERMINATION OF THIS AGREEMENT
BY ARRAY PURSUANT TO SECTION 11.4, AMGEN SHALL PAY TO ARRAY AN AMOUNT EQUAL TO:
(I) THE FTE AMOUNTS BUDGETED TO BE INCURRED BY ARRAY IN ACCORDANCE WITH THE
THEN-CURRENT DISCOVERY PLAN OVER THE [***] IMMEDIATELY FOLLOWING THE NOTICE OF
TERMINATION UNDER SECTION 11.2, SECTION 11.3 OR SECTION 11.4
(THE "WIND-DOWN
PERIOD") (OR SUCH SHORTER PERIOD IF LESS THAN [***] REMAINS IN THE DISCOVERY
PROGRAM TERM) RELATED TO MATTERS UNDER THE DISCOVERY PROGRAM; AND (II) ANY
NON-CANCELABLE OUT-OF-POCKET COSTS REASONABLY INCURRED BY ARRAY HEREUNDER IN
ACCORDANCE WITH SECTION 6.2.3 (EXCLUDING ANY SUCH COMMITMENTS TO THE EXTENT
REIMBURSED IN CLAUSE (I) ABOVE OR OTHERWISE).
AMGEN SHALL