AGREEMENT, INSTRUMENT OR OTHER DOCUMENT HEREIN
WILL BE CONSTRUED AS REFERRING TO SUCH AGREEMENT, INSTRUMENT OR OTHER DOCUMENT
AS FROM TIME TO TIME AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED (SUBJECT TO ANY
RESTRICTIONS ON SUCH AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS SET FORTH HEREIN
OR THEREIN), (II) ANY REFERENCE TO ANY LAW HEREIN WILL BE CONSTRUED AS REFERRING
TO SUCH LAW AS FROM TIME TO TIME ENACTED, REPEALED OR AMENDED, (III) ANY
REFERENCE HEREIN TO ANY PERSON WILL BE CONSTRUED TO INCLUDE THE PERSON'S
PERMITTED SUCCESSORS AND ASSIGNS, (IV) THE WORDS "HEREIN," "HEREOF" AND
"HEREUNDER," AND WORDS OF SIMILAR IMPORT, WILL BE CONSTRUED TO REFER TO THIS
AGREEMENT IN ITS ENTIRETY AND NOT TO ANY PARTICULAR PROVISION HEREOF, AND
(V) ALL REFERENCES HEREIN TO ARTICLES, SECTIONS OR EXHIBITS, UNLESS OTHERWISE
SPECIFICALLY PROVIDED, WILL BE CONSTRUED TO REFER TO ARTICLES, SECTIONS OR
EXHIBITS OF THIS AGREEMENT.
12.15
FORCE MAJEURE.
NO FAILURE OR OMISSION BY THE PARTIES HERETO IN THE
PERFORMANCE OF ANY OBLIGATION OF THIS AGREEMENT SHALL BE DEEMED A BREACH OF THIS
AGREEMENT NOR SHALL IT CREATE ANY LIABILITY IF THE SAME SHALL ARISE FROM ANY
CAUSE OR CAUSES BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY, INCLUDING
THE FOLLOWING, WHICH FOR PURPOSES OF THIS AGREEMENT SHALL BE REGARDED AS BEYOND
THE CONTROL OF THE PARTY IN QUESTION: ACTS OF NATURE; ACTS OR OMISSIONS OF ANY
GOVERNMENT; ANY RULES, REGULATIONS, OR ORDERS ISSUED AFTER THE EFFECTIVE DATE BY
ANY GOVERNMENTAL AUTHORITY OR BY ANY OFFICER, DEPARTMENT, AGENCY OR
INSTRUMENTALITY THEREOF; FIRE; STORM; FLOOD; EARTHQUAKE; ACCIDENT; WAR;
REBELLION; INSURRECTION; RIOT; INVASION; STRIKES; AND LOCKOUTS OR THE LIKE;
PROVIDED THAT THE PARTY SO AFFECTED SHALL PROMPTLY NOTIFY THE OTHER PARTY IN
WRITING AND SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO AVOID OR REMOVE
SUCH CAUSES OF NONPERFORMANCE, AND TO MITIGATE THE EFFECT OF SUCH OCCURRENCE,
AND SHALL CONTINUE PERFORMANCE HEREUNDER WITH THE UTMOST DISPATCH WHENEVER SUCH
CAUSES ARE REMOVED.
12.16
FURTHER ASSURANCES.
EACH PARTY AGREES TO DO AND PERFORM ALL SUCH
FURTHER ACTS AND THINGS AND SHALL EXECUTE AND DELIVER SUCH OTHER AGREEMENTS,
CERTIFICATES, INSTRUMENTS AND DOCUMENTS NECESSARY OR THAT THE OTHER PARTY MAY
DEEM ADVISABLE IN ORDER TO CARRY OUT THE INTENT AND ACCOMPLISH THE PURPOSES OF
THIS AGREEMENT AND TO EVIDENCE, PERFECT OR OTHERWISE CONFIRM ITS RIGHTS
HEREUNDER, INCLUDING THAT, UPON REQUEST OF AMGEN, ARRAY WILL EXECUTE SHORT-FORM
LICENSE DOCUMENTS THAT CAN BE FILED TO EVIDENCE AND PERFECT AMGEN'S RIGHTS
HEREUNDER.
[Remainder of page intentionally blank.
Signature page follows.]
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[ * ] = 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives as of the date and year first above written.
Array BioPharma Inc.
Amgen Inc.
By:
/s/ Robert Conway
By:
/s/ Kevin Sharer
Name:
Robert Conway
Name:
Kevin Sharer
Title:
Chief Executive Officer
Title:
Chief Executive Officer
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[ * ] =