|ARRAY BIOPHARMA INC filed this Form 10-K on 08/11/2017|
[ * ] = 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.
(a) Enforcement Actions.
(i) In the event that Array or Ono becomes aware of actual or threatened infringement or misappropriation of any Array Patent or Array Know-How in any country within the Ono Territory by the Manufacture or sale or use of an unauthorized version of a Product (“Infringing Product”), then such Party shall promptly notify the other Party in writing and the Parties shall consult with each other with respect to the strategy in response to such Infringing Product. Array shall have the first right, but not the obligation, to initiate proceedings or take other appropriate action in Ono Territory, at its own expense, against any such Third Party. If Array does not initiate proceedings or take other appropriate action within ninety (90) days of receipt of a request by Ono to initiate an enforcement proceeding, or if a legal proceeding must be commenced prior to the end of such ninety(90) day period to avoid a loss of rights, then no later than five (5) days prior to such deadline, then Ono shall be entitled to initiate infringement proceedings or take other appropriate action against an Infringing Product at its own expense. The Party conducting such action (“Enforcing Party”) shall have full control over its conduct, including settlement thereof; provided, however, that the Enforcing Party may not settle any such action, or make any admissions or assert any position in such action, in a manner that would materially adversely affect the rights or interests of the other Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. In any event, the Parties shall assist one another and cooperate in any such litigation at Enforcing Party’s reasonable request.
(ii) With respect to Infringing Products containing Binimetinib, Ono’s rights under Section 11.3(a)(i) are subject to the rights previously granted to AstraZeneca AB (“AZ”) pursuant to Sections 8.3.1 and 8.3.3 of that certain Collaboration and License Agreement between Array and AZ, effective as of December 18, 2003, as amended by that certain Amendment to Collaboration and License Agreement, between Array and AZ, effective as of June 1, 2009 (collectively, the “AZ Agreement”). For the avoidance of doubt, the rights granted to or retained by Array pursuant to Sections 8.3.1 and 8.3.3 of the AZ Agreement shall, to the extent relating to Infringing Products containing Binimetinib, be subject to this Agreement, including this Section 11.3. Any enforcement actions initiated by AZ with respect to an Infringing Product shall be deemed initiated by Array for purposes of Section 11.3(a)(i), and the costs and expenses incurred by Array in such enforcement action shall include any costs and expenses reimbursed or required to be reimbursed by Array to AZ in accordance with the AZ Agreement in such enforcement action. Additionally it is further understood that notwithstanding anything to the contrary in this Agreement, the AZ Agreement, and the rights granted to AZ thereunder, shall in no event constitute a breach of Sections 8.2 and 15.1.
(iii) With respect to the responsibility and allocation of costs for the enforcement of the Joint Patents (i) against Third Party products that infringe the Joint Patents outside the Ono Territory, or (ii)