TYPICALLY USED BY THAT PARTY (OR, IF A PARTY DOES NOT
ENGAGE IN THAT ACTIVITY FOR OTHER PRODUCTS OR COMPOUNDS, BY BIOTECHNOLOGY AND/OR
PHARMACEUTICAL COMPANIES THAT ARE SIMILAR IN SIZE AND FINANCIAL RESOURCES TO
SUCH PARTY) IN THE CONDUCT OF SUCH ACTIVITIES WITH RESPECT TO PRODUCTS OF
COMPARABLE MARKET POTENTIAL, TAKING INTO ACCOUNT ALL RELEVANT FACTORS INCLUDING,
AS APPLICABLE, STAGE OF DEVELOPMENT, EFFICACY AND SAFETY RELATIVE TO COMPETITIVE
PRODUCTS IN THE MARKETPLACE, ACTUAL OR ANTICIPATED GOVERNMENTAL APPROVED
LABELING, THE NATURE AND EXTENT OF MARKET EXCLUSIVITY (INCLUDING PATENT COVERAGE
AND REGULATORY EXCLUSIVITY), COST AND LIKELIHOOD OF OBTAINING MARKETING
APPROVAL, AND ACTUAL OR PROJECTED PROFITABILITY.
FOR PURPOSES OF CLARITY,
COMMERCIALLY REASONABLE EFFORTS WILL BE DETERMINED ON A MARKET-BY-MARKET BASIS
WITHIN THE TERRITORY, AND IT IS ANTICIPATED THAT THE LEVEL OF EFFORT MAY BE
DIFFERENT FOR DIFFERENT MARKETS AND MAY CHANGE OVER TIME, REFLECTING CHANGES IN
THE STATUS OF PRODUCT AND THE MARKET(S) INVOLVED.
1.33
"COMPOSITION PATENTS" SHALL MEAN ARRAY PATENTS THAT
CLAIM COMPOSITION OF MATTER OF ANY COMPOUNDS, INCLUDING THE PATENTS SET FORTH ON
EXHIBIT 10.2(A).
1.34
"COMPOUND" SHALL MEAN (I) ARRY-403, (II) ALL SMALL
MOLECULES TESTED FOR GLUCOKINASE ACTIVATION BY ARRAY PRIOR TO THE EFFECTIVE
DATE, OR MADE AND TESTED BY ARRAY IN THE COURSE OF THE DISCOVERY PROGRAM, WHICH
SHOW OR SHOWED SOME ACTIVITY AS ACTIVATORS OF GLUCOKINASE IN SUCH TESTING (BUT,
FOR CLARITY, EXCLUDING INTERMEDIATES OF SUCH COMPOUNDS THAT WERE NOT THEMSELVES
TESTED AND MOLECULES THAT WERE TESTED BUT DID NOT SHOW ACTIVITY AS ACTIVATORS OF
GLUCOKINASE), (III) ANY OTHER SMALL MOLECULE THAT BINDS TO AND ACTIVATES
GLUCOKINASE AND [***],[***], OR (IV) ANY OTHER SMALL MOLECULE THAT, AS ITS
PRIMARY AND INTENDED MECHANISM OF ACTION FOR THERAPEUTIC EFFECT (INTENDED BY THE
PARTY, ITS AFFILIATE OR THIRD PARTY RESEARCHING, DEVELOPING OR COMMERCIALIZING
SUCH SMALL MOLECULE), BINDS TO AND ACTIVATES GLUCOKINASE.
FOR CLARITY, CLAUSE
(IV) OF THIS SECTION SHALL NOT INCLUDE SMALL MOLECULES GENERATED OR IDENTIFIED
IN PROGRAMS OUTSIDE THE PROGRAM WHERE THE INTENDED MECHANISM OF ACTION FOR
MOLECULES THAT ARE THE SUBJECT OF SUCH PROGRAM IS MODULATION OF A TARGET OTHER
THAN BINDING TO AND ACTIVATION OF GLUCOKINASE.
THE PARTIES ACKNOWLEDGE THAT IT
IS IN NEITHER PARTY'S INTEREST TO HAVE THE CRITERIA IN CLAUSE (III) OF THIS
SECTION SET TOO LOW AND AGREE, UPON REQUEST OF EITHER PARTY AFTER AMGEN HAS HAD
A REASONABLE TIME TO BECOME FAMILIAR WITH THE ASSAY REFERENCED
- 5 -
[ * ] = 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.
THEREIN, TO DISCUSS IN GOOD FAITH WHETHER IT WOULD BE APPROPRIATE TO INCREASE
THE ACTIVITY SPECIFIED IN CLAUSE (III), AND IF THEY MUTUALLY AGREE TO A CHANGE,
TO AMEND THIS SECTION ACCORDINGLY.
1.35
"CONTRACTORS" SHALL MEAN THIRD PARTY CONTRACTORS OR
SERVICE PROVIDERS THAT PERFORM WORK ON BEHALF OF A PARTY OR ITS AFFILIATE (E.G.,
CONTRACT RESEARCH ORGANIZATIONS, LABORATORY SERVICE PROVIDERS).
1.36
"CONTROL," "CONTROLS," "CONTROLLED" OR "CONTROLLING"
SHALL MEAN POSSESSION OF THE