ON ITS BEHALF) HAS CURED
ANY SUCH BREACH OR DEFAULT PRIOR TO THE EXPIRATION OF THE NINETY (90) DAY
PERIOD.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A FAILURE TO PERFORM A
MATERIAL OBLIGATION UNDER THIS AGREEMENT THAT IS CAPABLE OF BEING CURED, BUT IS
NOT REASONABLY CAPABLE OF BEING CURED WITHIN THE NINETY (90) DAY CURE PERIOD,
PROVIDED THAT (I) THE BREACHING PARTY PROPOSES WITHIN SUCH NINETY (90) DAY
PERIOD A WRITTEN PLAN TO CURE SUCH NON-PERFORMANCE WITHIN A DEFINED TIME FRAME,
(II) SUCH WRITTEN PLAN AND TIMEFRAME ARE REASONABLY ACCEPTABLE TO THE
NON-BREACHING PARTY, AND (III) THE BREACHING PARTY MAKES GOOD FAITH EFFORTS TO
CURE SUCH DEFAULT AND TO IMPLEMENT SUCH WRITTEN CURE PLAN, THEN THE
NON-BREACHING PARTY MAY NOT TERMINATE THIS AGREEMENT FOR SO LONG AS THE
BREACHING PARTY IS DILIGENTLY PURSUING SUCH CURE; PROVIDED, HOWEVER, THAT THE
BREACHING PARTY SHALL LOSE ITS RIGHT TO CONTINUE TO CURE PURSUANT TO THIS
SENTENCE IF AT ANY TIME SUCH PARTY CEASES TO MAKE A GOOD FAITH EFFORT TO CURE
SUCH DEFAULT FOR A PERIOD EXCEEDING FOURTEEN (14) DAYS DURING THE EXTENDED CURE
PERIOD OR IF SUCH PARTY FAILS TO CURE SUCH DEFAULT WITHIN THE DEFINED TIME
FRAME, AND IN SUCH CASE THE NOTIFYING PARTY SHALL HAVE THE RIGHT TO TERMINATE
IMMEDIATELY ON WRITTEN NOTICE TO THE BREACHING PARTY.
THE RIGHT OF EITHER PARTY
TO TERMINATE THIS AGREEMENT AS HEREIN ABOVE PROVIDED SHALL NOT BE AFFECTED IN
ANY WAY BY ITS WAIVER OF, OR FAILURE TO TAKE ACTION WITH RESPECT TO, ANY
PREVIOUS DEFAULT OR NON-PERFORMANCE.
12.2.2
ARBITRATION.
IN THE EVENT A PARTY DISPUTES WHETHER THE OTHER PARTY
IS ENTITLED TO
70
[ * ] = 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.
TERMINATE THIS AGREEMENT UNDER SECTION 12.2.1 ABOVE, THEN THE MATTER SHALL BE
FINALLY SETTLED BY BINDING ARBITRATION, HELD IN CHICAGO, ILLINOIS.
(A)
CHOICE OF ARBITRATORS AND GOVERNING RULES.
THE PARTIES SHALL USE THEIR
BEST EFFORTS TO MUTUALLY AGREE UPON ONE (1) ARBITRATOR; PROVIDED, HOWEVER, THAT
IF THE PARTIES HAVE NOT DONE SO WITHIN TEN (10) DAYS AFTER INITIATION OF
ARBITRATION HEREUNDER, OR SUCH LONGER PERIOD OF TIME AS THE PARTIES HAVE AGREED
TO IN WRITING, THEN THERE SHALL BE THREE (3) ARBITRATORS, INCLUDING ONE NOMINEE
OF ARRAY, ONE NOMINEE OF CELGENE, AND A THIRD PERSON SELECTED BY SAID NOMINEES.
THE ARBITRATOR'S(S') RULING SHALL BE FINAL AND BINDING UPON THE PARTIES.
THE
PARTY AGAINST WHICH THE ARBITRATOR(S) RULE SHALL BEAR ALL COSTS OF SUCH
ARBITRATION, AND ADDITIONALLY, THE PREVAILING PARTY SHALL BE ENTITLED TO
REASONABLE ATTORNEYS' FEES AND COSTS TO BE FIXED BY THE ARBITRATOR(S).
ANY
ARBITRATION CONDUCTED PURSUANT TO THIS ARTICLE 12.2.2 SHALL BE IN ACCORDANCE
WITH THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION.
THE PARTIES SHALL USE DILIGENT EFFORTS TO CAUSE THE COMPLETION OF
ANY SUCH ARBITRATION WITHIN ONE HUNDRED EIGHTY (180) DAYS FOLLOWING