PARTY MAY INITIATE LEGAL PROCEEDINGS WITH RESPECT THERETO.
NOTWITHSTANDING
ANYTHING IN THIS
75
[ * ] = 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.
SECTION 13.1 TO THE CONTRARY, EACH PARTY SHALL EACH HAVE THE RIGHT TO APPLY TO
ANY COURT OF COMPETENT JURISDICTION FOR APPROPRIATE INTERIM OR PROVISIONAL
RELIEF, AS NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF SUCH PARTY.
13.2
GOVERNING LAW.
THIS AGREEMENT AND ALL QUESTIONS REGARDING ITS
VALIDITY OR INTERPRETATION, OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT,
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
13.3
ASSIGNMENT.
13.3.1
GENERAL.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY EITHER PARTY TO
ANY THIRD PARTY HERETO WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY HERETO,
EXCEPT THAT EITHER PARTY MAY ASSIGN THIS AGREEMENT, WITHOUT THE WRITTEN CONSENT
OF THE OTHER PARTY, TO AN ENTITY THAT ACQUIRES ALL OR SUBSTANTIALLY ALL OF THE
BUSINESS OR ASSETS OF THE ASSIGNING PARTY TO WHICH THIS AGREEMENT PERTAINS,
WHETHER BY MERGER, ACQUISITION, SALE OR OTHERWISE, PROVIDED THAT THE ACQUIRER
ASSUMES THIS AGREEMENT IN WRITING OR BY OPERATION OF LAW.
IN ADDITION, EITHER
PARTY SHALL HAVE THE RIGHT TO ASSIGN THIS AGREEMENT TO AN AFFILIATE UPON WRITTEN
NOTICE TO THE NON-ASSIGNING PARTY; PROVIDED THAT:
(A) THE ASSIGNING PARTY
GUARANTEES THE PERFORMANCE OF THIS AGREEMENT BY SUCH AFFILIATE; AND (B) IF THE
NON-ASSIGNING PARTY REASONABLY BELIEVES THAT SUCH ASSIGNMENT COULD RESULT IN
MATERIAL ADVERSE TAX CONSEQUENCES TO THE NON-ASSIGNING PARTY, SUCH ASSIGNMENT
SHALL NOT BE MADE WITHOUT THE NON-ASSIGNING PARTY'S CONSENT.
SUBJECT TO THE
FOREGOING, THIS AGREEMENT INURE TO THE BENEFIT OF EACH PARTY AND ITS SUCCESSORS
AND PERMITTED ASSIGNS.
ANY ASSIGNMENT IN CONTRAVENTION OF THIS SECTION 13.3
SHALL BE NULL AND VOID.
13.3.2
CERTAIN MATTERS RELATING TO ACQUISITIONS.
IN THE EVENT (I) CELGENE
ASSIGNS THIS AGREEMENT TO AN ENTITY THAT ACQUIRES ALL OR SUBSTANTIALLY ALL OF
THE BUSINESS OR ASSETS OF CELGENE, OR (II) CELGENE MERGES OR CONSOLIDATES OR
ENTERS INTO A SIMILAR TRANSACTION WITH AN ENTITY IN WHICH SUCH ENTITY BECOMES AN
AFFILIATE OF CELGENE (EACH SUCH EVENT, A "SUBJECT TRANSACTION"), AND, AS A
RESULT OF THE SUBJECT TRANSACTION, CELGENE (OR ITS SUCCESSOR) IS THEREAFTER
REQUIRED TO DIVEST, OR CHOOSES TO
76
[ * ] = 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.
LICENSE, ONE OR MORE LICENSED PRODUCTS TO A THIRD PARTY, CELGENE (OR ITS
SUCCESSOR) SHALL SO NOTIFY ARRAY AND PROVIDE ARRAY AN OPPORTUNITY TO PURCHASE OR
LICENSE SUCH RIGHTS ON TERMS TO BE DISCUSSED AT THE TIME.
13.4
FORCE MAJEURE.
IF THE PERFORMANCE OF ANY PART OF THIS AGREEMENT BY
A PARTY IS