EXCHANGE
COMMISSION) FOR THE PERFORMANCE BY IT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
- 49 -
[ * ] = 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.
(D)
IT HAS NOT GRANTED ANY RIGHT TO ANY THIRD PARTY RELATING TO ITS RESPECTIVE
TECHNOLOGY IN THE FIELD WHICH CONFLICTS WITH THE RIGHTS GRANTED TO THE OTHER
PARTY HEREUNDER.
10.2
ARRAY REPRESENTATIONS AND WARRANTIES.
ARRAY REPRESENTS AND WARRANTS TO
AMGEN THAT AS OF THE EFFECTIVE DATE:
(A)
ARRAY HAS SUFFICIENT LEGAL AND/OR BENEFICIAL TITLE TO GRANT TO AMGEN THE
LICENSES PURPORTED TO BE GRANTED TO AMGEN HEREUNDER, AND WITH RESPECT TO THE
ARRAY PATENTS LISTED ON EXHIBIT 10.2(A), ALL FEES REQUIRED TO BE PAID BY ARRAY
OR ITS AFFILIATES IN ORDER TO MAINTAIN SUCH ARRAY PATENTS HAVE BEEN PAID TO
DATE, AND NONE OF THE LISTED ARRAY PATENTS HAVE BEEN ABANDONED OR CANCELLED FOR
FAILURE TO PROSECUTE OR MAINTAIN THEM.
(B)
ARRAY HAS [***] PRIOR TO THE EFFECTIVE DATE.
(C)
NONE OF THE ARRAY PATENTS IS THE SUBJECT OF ANY INTERFERENCE OR OPPOSITION,
SUIT OR LEGAL PROCEEDING, AND ARRAY HAS NOT RECEIVED WRITTEN NOTICE FROM ANY
THIRD PARTY CHALLENGING ARRAY'S OWNERSHIP RIGHTS IN, OR THE VALIDITY,
ENFORCEABILITY OR SCOPE OF, ANY ARRAY PATENT.
(D)
EXHIBIT 10.2(A) CONTAINS A COMPLETE LIST OF ALL PATENTS OWNED OR CONTROLLED
BY ARRAY THAT ARE WITHIN THE ARRAY TECHNOLOGY, INCLUDING ALL PATENTS OWNED OR
CONTROLLED BY ARRAY THAT CLAIM ARRY-403 OR PROCESSES FOR MAKING OR USING, OR
COMPOSITIONS CONTAINING THE SAME.
(E)
ARRAY HAS NOT NOR HAS ANY OF ITS AFFILIATES PREVIOUSLY ASSIGNED,
TRANSFERRED OR CONVEYED TITLED TO, OR LICENSED IN ANY MANNER INCONSISTENT WITH
THE LICENSES TO AMGEN SET FORTH HEREIN, OR OTHERWISE ENCUMBERED ANY OF ITS
RIGHT, TITLE AND INTEREST IN THE PATENTS SET FORTH ON EXHIBIT 10.2(A) OR THE
ARRAY KNOW-HOW.
(F)
ARRAY HAS DISCLOSED IN A WRITTEN LETTER DATED AS OF THE EFFECTIVE DATE TO
AMGEN (THE "INVENTORY LETTER") A COMPLETE INVENTORY, TO ITS KNOWLEDGE, OF THE
COMPOUNDS AND PRODUCTS OWNED OR CONTROLLED BY ARRAY (THE "INVENTORY").
ARRAY
OWNS ALL RIGHT, TITLE AND INTEREST IN THE LISTED INVENTORY.
THE INVENTORY SET
FORTH ON SECTION B OF THE INVENTORY LETTER HAS BEEN MANUFACTURED IN ACCORDANCE
WITH CURRENT GOOD MANUFACTURING PRACTICES (AS DEFINED IN THE UNITED STATES CODE
OF FEDERAL REGULATIONS) AND LAW, AND ARRAY IS NOT AWARE OF ANY CIRCUMSTANCE WITH
RESPECT TO THE INVENTORY LISTED ON SECTION B OF THE INVENTORY LETTER THAT WOULD
MAKE IT UNFIT FOR HUMAN USE IN CLINICAL TRIALS INTENDED TO SUPPORT DEVELOPMENT
OF PRODUCTS IN ACCORDANCE WITH U.S. LAW.
(G)
ARRAY HAS DISCLOSED TO AMGEN ALL MATERIAL DATA AND INFORMATION IN ITS
POSSESSION OR OF WHICH IT IS AWARE WITH RESPECT TO ARRY-403, INCLUDING:
(I) SAFETY DATA AND INFORMATION, INCLUDING ADVERSE EVENTS, TOXICOLOGY RESULTS
AND PHARMACOLOGY RESULTS, (II) FILINGS AND CORRESPONDENCE, INCLUDING RECORDS OF
CONTACT, WITH REGULATORY AUTHORITIES WITH RESPECT TO THE COMPOUNDS AND/OR
PRODUCTS,