of 1934, as
amended.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION
11.1
GENERAL REPRESENTATIONS AND WARRANTIES.
EACH PARTY REPRESENTS AND
WARRANTS TO THE OTHER THAT:
(A)
IT IS DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF ITS STATE OF
INCORPORATION, AND HAS FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS
AGREEMENT AND TO CARRY OUT THE PROVISIONS HEREOF;
(B)
IT IS DULY AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM
ITS OBLIGATIONS HEREUNDER, AND THE PERSON OR PERSONS EXECUTING THIS AGREEMENT ON
ITS BEHALF HAS BEEN DULY AUTHORIZED TO DO SO BY ALL REQUISITE CORPORATE ACTION;
(C)
THIS AGREEMENT IS LEGALLY BINDING UPON IT AND ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY IT
DOES NOT CONFLICT WITH ANY AGREEMENT, INSTRUMENT OR UNDERSTANDING, ORAL OR
WRITTEN, TO WHICH IT IS A PARTY OR BY WHICH IT MAY BE BOUND, NOR VIOLATE ANY
MATERIAL LAW OR REGULATION OF ANY COURT, GOVERNMENTAL BODY OR ADMINISTRATIVE OR
OTHER AGENCY HAVING JURISDICTION OVER IT;
(D)
IT HAS NOT GRANTED, AND SHALL NOT GRANT DURING THE TERM OF THIS AGREEMENT,
ANY RIGHT TO ANY THIRD PARTY WHICH WOULD CONFLICT WITH THE RIGHTS GRANTED TO THE
OTHER PARTY HEREUNDER; AND
(E)
IT IS NOT AWARE OF ANY ACTION, SUIT OR INQUIRY OR INVESTIGATION INSTITUTED
BY ANY PERSON OR GOVERNMENTAL AGENCY WHICH COULD REASONABLY QUESTION OR THREATEN
THE VALIDITY OF THIS AGREEMENT.
66
[ * ] = 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.
11.2
ARRAY'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
ARRAY
REPRESENTS, WARRANTS AND COVENANTS THAT AS OF THE EFFECTIVE DATE:
(A)
ARRAY OWNS ALL RIGHT, TITLE AND INTEREST IN AND TO ALL ARRAY PATENTS IN
EXISTENCE AS OF THE EFFECTIVE DATE;
(B)
AS OF THE EFFECTIVE DATE ARRAY DOES NOT HAVE ANY OBLIGATION TO ANY THIRD
PARTY THAT CONFLICTS WITH THIS AGREEMENT OR ITS OBLIGATIONS HEREUNDER, AND ARRAY
HAS NOT GRANTED, AND WILL NOT GRANT DURING THE TERM OF THIS AGREEMENT, RIGHTS TO
ANY THIRD PARTY UNDER THE ARRAY TECHNOLOGY OR ARRAY'S INTEREST IN THE
COLLABORATION TECHNOLOGY THAT CONFLICT WITH THE RIGHTS GRANTED TO CELGENE
HEREUNDER;
(C)
ARRAY HAS NOT RECEIVED ANY WRITTEN NOTICE OF ANY THREATENED CLAIMS OR
LITIGATION SEEKING TO INVALIDATE OR OTHERWISE CHALLENGE THE ARRAY PATENTS OR
ARRAY'S RIGHTS THEREIN;
(D)
TO ITS KNOWLEDGE, NONE OF THE ARRAY PATENTS ARE SUBJECT TO ANY PENDING
RE-EXAMINATION, OPPOSITION, INTERFERENCE OR LITIGATION PROCEEDINGS;
(E)
ARRAY SHALL NOT [ * ]; AND
(F)
AFTER [ * ].
11.3
DISCLAIMER OF WARRANTIES. ARRAY AND CELGENE EXPRESSLY DISCLAIM ANY
GUARANTEE THAT THE DISCOVERY PROGRAM WILL BE SUCCESSFUL, IN WHOLE OR IN PART.
THE FAILURE OF THE PARTIES TO SUCCESSFULLY DEVELOP COMPOUNDS, DEVELOPMENT
COMPOUNDS, COLLABORATION COMPOUNDS OR LICENSED PRODUCTS WILL NOT CONSTITUTE A
BREACH OF ANY REPRESENTATION OR WARRANTY OR OTHER OBLIGATION UNDER THIS
AGREEMENT.
EXCEPT AS SET FORTH IN