ANALOGS OR DERIVATIVES OF
DEVELOPMENT COMPOUNDS OR DEVELOPMENT BACK-UP COMPOUNDS OR ABANDONED COMPOUNDS,
PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO ANY COMPOUND THAT
CELGENE HAS UNDER DEVELOPMENT AS OF THE EFFECTIVE DATE, AS REASONABLY DOCUMENTED
BY CELGENE.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 5.3.3 SHALL
MODIFY CELGENE'S OBLIGATIONS UNDER SECTION 5.6.
5.3.4
RIGHT OF FIRST OPPORTUNITY.
IF ARRAY INTENDS TO OFFER ANY THIRD
PARTY ANY SUBLICENSE UNDER SECTION 5.3.2 ABOVE, THEN CELGENE SHALL HAVE AN
OPPORTUNITY TO NEGOTIATE WITH ARRAY FOR A PERIOD OF SIXTY (60) DAYS TO ENTER
INTO A SUBLICENSE GRANTING CELGENE SUCH RIGHTS ON TERMS TO BE DISCUSSED AT THE
TIME.
5.4
NO OTHER RIGHTS.
EXCEPT FOR THE RIGHTS EXPRESSLY GRANTED UNDER
THIS AGREEMENT, NO RIGHT, TITLE OR INTEREST OF ANY NATURE WHATSOEVER IS GRANTED,
WHETHER BY IMPLICATION, ESTOPPEL OR
36
[ * ] = 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.
OTHERWISE, BY ANY PARTY TO THE OTHER PARTY.
ALL RIGHTS WITH RESPECT TO
INFORMATION, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS THAT ARE NOT
SPECIFICALLY GRANTED HEREIN ARE RESERVED TO THE OWNER THEREOF.
5.5
NO IMPLIED LICENSES.
EACH PARTY ACKNOWLEDGES THAT THE LICENSES
GRANTED UNDER THIS ARTICLE 5 ARE LIMITED TO THE SCOPE EXPRESSLY GRANTED, AND ALL
OTHER RIGHTS TO PATENTS AND INFORMATION OF SUCH PARTY ARE EXPRESSLY RESERVED TO
THE PARTY OWNING SUCH PATENT AND INFORMATION.
WITHOUT LIMITING THE FOREGOING,
IT IS UNDERSTOOD THAT WHERE AN EXCLUSIVE LICENSE UNDER ANY PATENT AND/OR
INFORMATION IS GRANTED TO A PARTY UNDER THIS ARTICLE 5 FOR A PARTICULAR PURPOSE,
THE PARTY GRANTING SUCH LICENSE RETAINS ALL OF ITS RIGHTS TO SUCH PATENT AND
INFORMATION FOR ALL PURPOSES NOT EXPRESSLY LICENSED.
5.6
EXCLUSIVITY OF EFFORTS.
5.6.1
DURING THE EXCLUSIVITY PERIOD.
DURING THE APPLICABLE EXCLUSIVITY
PERIOD, EXCEPT PURSUANT TO THIS AGREEMENT, NEITHER PARTY SHALL [ * ], ALONE OR
WITH ANY AFFILIATE OR ANY THIRD PARTY, ANY [ * ].
IT IS UNDERSTOOD AND AGREED
THAT THE PROVISIONS OF THIS SECTION 5.6 SHALL NOT APPLY TO [ * ] FOR WHICH SUCH
PARTY HAS [ * ], AS REASONABLY DOCUMENTED BY SUCH PARTY; PROVIDED, HOWEVER, THAT
IN NO EVENT SHALL A PARTY OR ANY OF ITS AFFILIATES [ * ], INCLUDING, WITHOUT
LIMITATION, [ * ], OR ENABLE A THIRD PARTY TO DO ANY OF THE FOREGOING.
5.6.2
EXCLUSIVITY PERIOD.
AS USED IN THIS SECTION 5.6, "EXCLUSIVITY
PERIOD" SHALL MEAN, WITH RESPECT TO CELGENE, THE PERIOD COMMENCING ON THE
EFFECTIVE DATE AND EXPIRING, ON A TARGET-BY-TARGET BASIS, ON THE EARLIER OF:
(A) [ * ]; (B) [ * ]; OR (C) [ * ].
WITH RESPECT TO ARRAY, THE EXCLUSIVITY
PERIOD SHALL COMMENCE ON THE EFFECTIVE DATE AND SHALL EXTEND, ON A
TARGET-BY-TARGET BASIS, (Y) [ * ]; AND (Z) [ * ]
5.6.3
CHANGE OF CONTROL; ACQUISITIONS.
(A)
NOTWITHSTANDING THE PROVISION OF SECTIONS 5.6.1 AND 5.6.2, IN