Common use of BMS Right of First Negotiation Clause in Contracts

BMS Right of First Negotiation. BMS shall have a right of first negotiation with respect to Licensed Compounds and Licensed Products as follows. (a) After the Trigger Date with respect to a Licensed Product, in the event that Elixir desires at any time within * after the Effective Date to enter into a License arrangement with respect to a Licensed Product, before entering into negotiations with any Third Party with respect to such License, Elixir will notify BMS of its desire and provide BMS with a Notice with respect to such Licensed Product. If BMS notifies Elixir in writing of its election to pursue a License for * Confidential Treatment Requested such Licensed Product within * after BMS’ receipt of such Notice, Elixir and BMS shall enter into good faith negotiations with respect to such License for a period of * following Elixir’s receipt of such election from BMS (the “Negotiation Period”). (b) During the Negotiation Period, Elixir will provide BMS with an opportunity to make a Term Sheet proposal of terms and conditions with respect to such License and Elixir will either agree to the proposal (and such Term Sheet shall then be deemed as being offered by Elixir) and the Parties will move forward to negotiate a definitive agreement based on such Term Sheet, or Elixir shall promptly provide a counter offer Term Sheet to BMS. If BMS has not provided Elixir with such written Term Sheet proposal within * following the start of such Negotiation Period, the Negotiation Period will terminate. During the Negotiation Period, Elixir may revise the terms and conditions of its counter proposal Term Sheet to BMS and the last such Term Sheet that Elixir delivers to BMS shall be deemed the Term Sheet that Elixir delivers to BMS for purposes of Section 3.2 below, provided however, that Elixir shall provide BMS with a reasonable period of time to review and consider any such Term Sheet which in no event will be less than *. Such * Negotiation Period shall be extended by an additional * of diligent good faith negotiations if (i) Elixir and BMS reach agreement in principle with respect to a Term Sheet with respect to such License and (ii) BMS obtains internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet. (c) During the Negotiation Period and any extension thereof, Elixir shall promptly provide BMS with additional information available to Elixir that is related to the Licensed Compound(s) and Licensed Product(s) that would be subject to the License, and access to personnel and facilities, as reasonably requested by BMS as part of its due diligence with respect to such License. Subject to any prior Licenses, BMS shall have the right to determine the scope of Licensed Compounds and Licensed Products with respect to such License (i.e., whether the License will cover, for example, a single Licensed Compound or a list of several Licensed Compounds or the entire genus of Licensed Compounds) and the Term Sheets that Elixir delivers to BMS during the Negotiation Period shall include the terms for the scope of Licensed Compounds and Licensed Products requested by BMS. (d) If Elixir and BMS do not conclude an agreement with respect to such License during the Negotiation Period (including any extensions thereof), Elixir will then be free to enter into negotiations with any Third Party regarding such a License for such Licensed Compound(s) and Licensed Product(s), provided that such License shall have the same territory as identified in the Notice under Section 3.1(a) and the same scope of Licensed Compound(s) and Licensed Product(s) that were the subject of the last Term Sheet delivered to BMS under Section 3.1(b). Elixir shall then be free to enter into any such License, subject to the provisions set forth in Section 3.2. (e) If BMS does not provide Elixir with such notice of BMS’ election to pursue a License within the * period after receipt of a Notice set forth in Section 3.1(a), or if BMS does not provide Elixir with such a written Term Sheet proposal within the * of the start of the Negotiation Period, Elixir will then be free to enter into negotiations with any Third Party, and Elixir shall have the right to enter into Licenses, with respect to some or all of the Licensed Product(s) and Licensed Compound(s) and territory identified in the Notice. * Confidential Treatment Requested

BMS Right of First Negotiation. 3.1 BMS Right of First Negotiation. BMS shall have a right of first negotiation with respect to Licensed Compounds and Licensed Products as follows. (a) After the Trigger Date with respect to a Licensed Product, in the event that Elixir desires at any time within * after the Effective Date to enter into a License arrangement with respect to a Licensed Product, before entering into negotiations with any Third Party with respect to such License, Elixir will notify BMS of its desire and provide BMS with a Notice with respect to such Licensed Product. If BMS notifies Elixir in writing of its election to pursue a License for * Confidential Treatment Requested such Licensed Product within * after BMS’ receipt of such Notice, Elixir and BMS shall enter into good faith negotiations with respect to such License for a period of * following Elixir’s receipt of such election from BMS (the “Negotiation Period”). (b) During the Negotiation Period, Elixir will provide BMS with an opportunity to make a Term Sheet proposal of terms and conditions with respect to such License and Elixir will either agree to the proposal (and such Term Sheet shall then be deemed as being offered by Elixir) and the Parties will move forward to negotiate a definitive agreement based on such Term Sheet, or Elixir shall promptly provide a counter offer Term Sheet to BMS. If BMS has not provided Elixir with such written Term Sheet proposal within * following the start of such Negotiation Period, the Negotiation Period will terminate. During the Negotiation Period, Elixir may revise the terms and conditions of its counter proposal Term Sheet to BMS and the last such Term Sheet that Elixir delivers to BMS shall be deemed the Term Sheet that Elixir delivers to BMS for purposes of Section 3.2 below, provided however, that Elixir shall provide BMS with a reasonable period of time to review and consider any such Term Sheet which in no event will be less than *. Such * Negotiation Period shall be extended by an additional * of diligent good faith negotiations if (i) Elixir and BMS reach agreement in principle with respect to a Term Sheet with respect to such License and (ii) BMS obtains internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet. (c) During the Negotiation Period and any extension thereof, Elixir shall promptly provide BMS with additional information available to Elixir that is related to the Licensed Compound(s) and Licensed Product(s) that would be subject to the License, and access to personnel and facilities, as reasonably requested by BMS as part of its due diligence with respect to such License. Subject to any prior Licenses, BMS shall have the right to determine the scope of Licensed Compounds and Licensed Products with respect to such License (i.e., whether the License will cover, for example, a single Licensed Compound or a list of several Licensed Compounds or the entire genus of Licensed Compounds) and the Term Sheets that Elixir delivers to BMS during the Negotiation Period shall include the terms for the scope of Licensed Compounds and Licensed Products requested by BMS. (d) If Elixir and BMS do not conclude an agreement with respect to such License during the Negotiation Period (including any extensions thereof), Elixir will then be free to enter into negotiations with any Third Party regarding such a License for such Licensed Compound(s) and Licensed Product(s), provided that such License shall have the same territory as identified in the Notice under Section 3.1(a) and the same scope of Licensed Compound(s) and Licensed Product(s) that were the subject of the last Term Sheet delivered to BMS under Section 3.1(b). Elixir shall then be free to enter into any such License, subject to the provisions set forth in Section 3.2. (e) If BMS does not provide Elixir with such notice of BMS’ election to pursue a License within the * period after receipt of a Notice set forth in Section 3.1(a), or if BMS does not provide Elixir with such a written Term Sheet proposal within the * of the start of the Negotiation Period, Elixir will then be free to enter into negotiations with any Third Party, and Elixir shall have the right to enter into Licenses, with respect to some or all of the Licensed Product(s) and Licensed Compound(s) and territory identified in the Notice. * Confidential Treatment Requested 3.2 To the extent that BMS’ rights under this Article 3 have not terminated or expired, Elixir shall not enter into any agreement with any Third Party with respect to a License under terms and conditions which are Less Favorable to Elixir than the terms and conditions set forth in the Term Sheet last offered by Elixir to BMS, except in accordance with the procedure set forth in this Section 3.2. (a) If Elixir intends to enter into a License agreement with a Third Party, Elixir shall notify BMS and shall notify an Independent Evaluator for the purpose of this Section 3.2. Elixir shall bear the costs of engaging the Independent Evaluator. Elixir shall provide the Independent Evaluator with a Term Sheet containing the terms and conditions of the proposed License agreement with such Third Party (the “Third Party Term Sheet”), without revealing the identity of the Third Party, and shall also provide the Independent Evaluator with a copy of the last Term Sheet offered by Elixir to BMS. BMS shall have no right to receive the Third Party Term Sheet from Elixir or the Independent Evaluator. (b) The Independent Evaluator shall promptly make a determination of whether the terms and conditions of the Third Party Term Sheet are Less Favorable to Elixir than the terms and conditions of the last Term Sheet offered by Elixir to BMS, in accordance with Section 3.5(a) below. Unless the Parties agree otherwise, such determination shall be made by the Independent Evaluator within fifteen (15) business days of receipt of the relevant Term Sheets from Elixir and the Independent Evaluator shall promptly notify the Parties of such determination. The Independent Evaluator shall be required to make a definite determination based on the information provided to it as to whether or not the Third Party Term Sheet is Less Favorable to Elixir than the last Term Sheet offered by Elixir to BMS. The Independent Evaluator shall not have the authority to render any other determination or to respond without a decision, and the Parties agree (i) that the Independent Evaluator shall have no liability in any way by reason of its decision and (ii) to be bound by such determination. (c) If the Independent Evaluator determines that the Third Party Term Sheet is not Less Favorable to Elixir than the last Term Sheet offered by Elixir to BMS, Elixir will be free to enter into a License agreement with such Third Party having the terms and conditions set forth in the Third Party Term Sheet (or terms and conditions more favorable to Elixir than the terms and conditions set forth in the Third Party Term Sheet) and such other terms and conditions as Elixir and the Third Party agree, provided however, that Elixir shall not have the right to enter into an agreement with respect to such License with such Third Party having terms and conditions that are Less Favorable to Elixir than the terms and conditions set forth in the Third Party Term Sheet presented to the Independent Evaluator. (d) If the Independent Evaluator determines that the terms and conditions set forth in the Third Party Term Sheet are Less Favorable to Elixir than the terms and conditions last offered by Elixir to BMS, Elixir may at its discretion continue its negotiation with the Third Party, with the objective of obtaining financial terms and conditions which are more favorable to Elixir than the financial terms and conditions last offered by Elixir to BMS, provided that Elixir shall not enter into an agreement with such Third Party without first following the above procedure set forth in this Section 3.2 with respect to submitting a revised Third Party Term Sheet to the Independent Evaluator. Alternatively, Elixir may offer such financial terms and conditions set out in such Less Favorable to Elixir Third Party Term Sheet to BMS (or Elixir * Confidential Treatment Requested may offer BMS terms and conditions financially less favorable to Elixir than those set out in such Third Party Term Sheet). In the event that Elixir makes such offer to BMS, Elixir shall also offer to BMS the same terms with respect to governance and decision-making as set out in such Third Party Term Sheet (or otherwise proposed by Elixir to the Third Party). If Elixir offers such terms and conditions for a License to BMS in accordance with this Section 3.2(d) (the “New Term Sheet”), BMS will have an additional * to provide Elixir with notice that BMS desires to enter into an agreement with Elixir on substantially the same financial terms and conditions as set out in the New Term Sheet (an “Acceptance Notice”). If an Acceptance Notice is provided by BMS, the Parties will work diligently to expeditiously complete such a License agreement. If an Acceptance Notice is not provided by BMS within such * period, or if Elixir and BMS do not execute a binding License agreement within * after receipt of the Acceptance Notice, Elixir will be free to enter into an agreement with such Third Party having the terms and conditions not financially Less Favorable to Elixir than those set forth in the New Term Sheet. 3.3 In the event that Elixir has not entered into an agreement with a Third Party with respect to a License within the earlier of * following the end of a Negotiation Period or at such time that statistically significant interim or final results from a Phase 2 Trial or Phase 3 Trial are available with respect to the applicable Licensed Product, then thereafter, if Elixir desires to enter into a License arrangement, before entering into a License agreement with any Third Party, Elixir will first notify BMS of its desire and a Notice and the procedure described in Sections 3.1 and 3.2 above shall apply again, except that the Negotiation Period in this case shall be * (rather than *), provided that Elixir shall be free to continue negotiations regarding a License with any Third Party (but not initiate any new negotiations with any other Third Party) during any such Negotiation Period pursuant to this Section 3.3, but may not enter into a License agreement with a Third Party until after the end of such Negotiation Period, and then only in accordance with and following the procedure set forth Section 3.2. (a) Subject to Section 3.4(b), during any Negotiation Period, at BMS’ request, Elixir shall make an offer of terms and conditions for a License where BMS would obtain exclusive worldwide rights and joint responsibility for the further manufacture, Development or Commercialization of the Licensed Product for all indications. The foregoing license shall include terms and conditions that provide BMS with a role of at least co-developing and co-commercializing the Licensed Product, with BMS having at least equal participation in co-commercialization of the Licensed Product in the U.S. (b) Elixir shall have the right at its discretion to limit the licensed territory in any Notice or Term Sheet to Japan, provided however, that in such case, any subsequent License in other countries in the world shall be subject to all of the terms and conditions of this Article 3 including Section 3.4(a). (c) Any proposed License or License agreement between Elixir and BMS shall include, in addition to the grant back to BMS of the applicable rights under the BMS Know-How and BMS Patent Rights, the grant to BMS of the applicable rights under other know-how and patent rights Controlled by Elixir with respect to the Licensed Compound and Licensed Product that are subject to the License. * Confidential Treatment Requested 3.5 Any License agreement entered into by Elixir in accordance with the foregoing procedure shall be subject to Section 2.3.

BMS Right of First Negotiation. 3.1.1 BMS shall have a limited right of first negotiation with respect to Licensed Compounds and Licensed Products as followsfollows (the “Right of First Negotiation”). (a) After the Trigger Date with respect to a Licensed Product, in In the event that Elixir Pharmacopeia desires at any time within * after the Effective Date to enter into a License arrangement with respect to a any Licensed Compound or Licensed Product, before entering into negotiations with any Third Party with respect to a License to such LicenseThird Party with respect to a Licensed Compound or Licensed Product, Elixir Pharmacopeia will notify BMS of its desire and provide BMS with a Notice information in Pharmacopeia’s possession and control that is reasonably necessary for BMS to perform its due diligence with respect to such Licensed Compound or Licensed Product (including but not limited to information from or relating to clinical studies, correspondence with FDA, information regarding Third Party patents, and information regarding the manufacture, sourcing and cost of goods for the Licensed Compound or Licensed Product) (the “Notice”). Pharmacopeia shall provide to BMS a proposal of terms and conditions with respect to such proposed License at the time of such Notice. If BMS notifies Elixir Pharmacopeia in writing of its election to pursue a License for * Confidential Treatment Requested such Licensed Compound or Licensed Product within *** (***) days after BMS’ receipt of such Notice, Elixir and BMS Pharmacopeia shall enter into good faith negotiations with BMS with respect to such License for a period of *** following Elixir’s receipt of such election from BMS (***) days (the “Negotiation Period”)) following receipt of such election from BMS. ***. (b) During the Negotiation Period, Elixir Pharmacopeia will provide BMS with an opportunity to make a Term Sheet written proposal of terms and conditions with respect to such a License and Elixir Pharmacopeia will either agree to accept the proposal (and such Term Sheet shall then be deemed as being offered by Elixir) and the Parties will move forward to negotiate a definitive agreement based on such Term Sheet, or Elixir shall promptly provide a counter offer Term Sheet to BMSBMS (i.e., in addition to the proposal provided to BMS at the time of the Notice). If BMS has not provided Elixir Pharmacopeia with such a written Term Sheet proposal within * following the start regarding all principal financial terms of such a License within the first *** (***) days of the Negotiation Period, the Negotiation Period will terminate. During the Negotiation Period, Elixir may revise the terms and conditions of its counter proposal Term Sheet to BMS and the last such Term Sheet that Elixir delivers to BMS shall be deemed the Term Sheet that Elixir delivers to BMS for purposes of Section 3.2 below, provided however, that Elixir shall provide BMS with a reasonable period of time to review and consider any such Term Sheet which in no event will be less than *. Such * Negotiation Period shall be extended by an additional * of diligent good faith negotiations if (i) Elixir and BMS reach agreement in principle with respect to a Term Sheet with respect to such License and (ii) BMS obtains internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet. (c) During the Negotiation Period and any extension thereof, Elixir shall promptly provide BMS with additional information available to Elixir that is related to the Licensed Compound(s) and Licensed Product(s) that would be subject to the License, and access to personnel and facilities, as reasonably requested by BMS as part of its due diligence with respect to such License. Subject to any prior Licenses, BMS shall have the right to determine the scope of Licensed Compounds and Licensed Products with respect to such License (i.e., whether the License will cover, for example, a single Licensed Compound or a list of several Licensed Compounds or the entire genus of Licensed Compounds) and the Term Sheets that Elixir delivers to BMS during the Negotiation Period shall include the terms for the scope of Licensed Compounds and Licensed Products requested by BMS. (d) If Elixir and BMS do not conclude an agreement with respect to such License during the Negotiation Period (including any extensions thereof), Elixir Pharmacopeia will then be free to enter into negotiations with any Third Party regarding such a License for such Licensed Compound(s) Compounds or Licensed Products and Licensed Product(sfree to enter into any such License. If Pharmacopeia and BMS are able to conclude an agreement in principle within the Negotiation Period as set forth in a mutually satisfactory term sheet with respect to such License (being demonstrated by BMS obtaining internal BMS Executive Committee, and Pharmacopeia obtaining Board approval, to proceed with completing a definitive agreement based on such term sheet), provided that the Parties shall negotiate a definitive agreement in good faith with the goal of executing such agreement within *** (***) days thereafter. (c) If BMS does not elect through the written notification described above to pursue a License with respect to such Licensed Compounds within the *** (***) day period set forth above, Pharmacopeia will then be free to enter into negotiations with any Third Party regarding a License for such Licensed Compounds or Licensed Products and free to enter into any such License. (d) Following Notice, if BMS does so elect to pursue a License with respect to the Licensed Compounds or Licensed Products within the *** (***) day period set forth above, but Pharmacopeia and BMS do not conclude an agreement in principle (being demonstrated by BMS obtaining internal BMS Executive Committee, and Pharmacopeia obtaining Board approval, to proceed with completing a definitive agreement based on such term sheet) with respect to such License shall have within the same territory Negotiation Period as identified in the Notice under Section 3.1(a) and the same scope of Licensed Compound(s) and Licensed Product(s) that were the subject of the last Term Sheet delivered to BMS under Section 3.1(b). Elixir shall described above, Pharmacopeia will then be free to enter into negotiations with any Third Party regarding a License for such Licensed Compounds or Licensed Products, and free to enter into any such License, subject to the provisions of this Article 3 set forth below. 3.1.2 Pharmacopeia shall not enter into an agreement with any Third Party with respect to a License for a Licensed Compound or Licensed Product except in accordance with the provisions of this Article 3, including the provisions set forth below. Notwithstanding the foregoing, in the event BMS does not (i) deliver to Pharmacopeia a written proposal within the forty-five (45) day time period set forth in Section 3.2. 3.1.1(b), or (eii) If BMS does not provide Elixir with such notice of BMS’ election elect to pursue a License with respect to Licensed Compounds or Licensed Products within the * period after receipt of a Notice time frame set forth in Section 3.1(a3.1.1(c), or if BMS does then the provisions of Section 3.1.2 shall not provide Elixir apply. (a) In the event that Pharmacopeia intends to enter into a License agreement with a Third Party (based on bona fide arm’s-length negotiations with such a written Term Sheet proposal within Third Party) after following the procedure set forth in this Article 3, *** (as defined below). (b) For purposes of the start ***. For this purpose, the *** at that time. Such determination by the ***. The *** will consider the ***. Such determination by the Board shall be ***. (c) If the ***. (d) If the ****. In the event that Pharmacopeia makes ***. If Pharmacopeia offers ***. If such ***. If such ***. 3.1.3 In the event that *** under this Article 3. 3.1.4 Upon the initiation of the any such Negotiation Period, Elixir will then Pharmacopeia shall ***. 3.1.5 Any License agreement entered into by Pharmacopeia with a Third Party in accordance with the foregoing procedure shall be free consistent with the terms and conditions of this Agreement and shall fully enable Pharmacopeia to enter into negotiations with any Third Party, and Elixir shall have the right to enter into Licenses, with respect to some or fully perform all of its obligations under the Licensed Product(s) Agreement which will continue in effect. As set forth in Section 2.2, any Sublicensee shall be bound by the terms and Licensed Compound(s) and territory identified conditions of this Agreement in the Notice. * Confidential Treatment Requestedsame manner as Pharmacopeia, provided that Section 3.1.2 of Section 3.1 shall not apply to a Sublicensee or a Consented Sublicensee.

BMS Right of First Negotiation. BMS shall have a right of first negotiation with respect to Licensed Compounds and Licensed Products as follows. (a) After completion of the Trigger Date first Phase 2 Trial under a U.S. IND with respect to a Licensed ProductProduct as set forth in Section 2.3, in the event that Elixir Sunesis desires at any time within * [*] after the Effective Date to enter into a License arrangement with respect to a one or more Licensed ProductCompound(s) or Licensed Product(s), before entering into negotiations with any Third Party with respect to such License, Elixir Sunesis will notify BMS of its desire and provide BMS with a Notice with respect to such Licensed ProductCompound(s) or Licensed Product(s). If BMS notifies Elixir Sunesis in writing of its election to pursue a License for * Confidential Treatment Requested such Licensed Product Compound(s) or Licensed Product(s) within * thirty (30) days after BMS’ receipt of such Notice, Elixir Sunesis and BMS shall enter into good faith negotiations with respect to such License for a period of * [*] following Elixir’s Sunesis’ receipt of such election from BMS (the “Negotiation Period”). (b) During the Negotiation Period, Elixir Sunesis will provide BMS with an opportunity to make a Term Sheet proposal of terms and conditions with respect to such License and Elixir Sunesis will either agree to the proposal (and such Term Sheet shall then be deemed as being offered by ElixirSunesis) and the Parties will move forward to negotiate a definitive agreement based on such Term Sheet, Sheet or Elixir Sunesis shall promptly provide a counter offer Term Sheet to BMS. If BMS has not provided Elixir with such written Term Sheet proposal within * following the start of such Negotiation Period, the Negotiation Period will terminatereasonably promptly. During the Negotiation Period, Elixir Sunesis may revise the terms and conditions of its counter proposal Term Sheet to BMS and in any case the last such Term Sheet that Elixir Sunesis delivers to BMS shall be deemed the Term Sheet that Elixir delivers Sunesis offers to BMS for purposes of Section 3.2 below, provided however, that Elixir Sunesis shall provide BMS with a reasonable period of time to review and consider any such Term Sheet which in no event will be less than [*] business days. Such * [*] Negotiation Period shall be extended by an additional * [*] of diligent good faith negotiations negotiation if (i) Elixir Sunesis and BMS reach agreement in principle with respect to a Term Sheet with respect to such License and (ii) BMS [*] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. obtains internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet. (c) During the Negotiation Period and any extension thereof, Elixir Sunesis shall use commercially reasonable efforts to promptly provide BMS with additional information available to Elixir Sunesis that is related to the Licensed Compound(s) and Licensed Product(s) that would be subject to the License, and access to personnel and facilities, as reasonably requested by BMS as part of its due diligence with respect to such License. Subject to any prior Licenses, BMS shall have the right to determine the scope of Licensed Compounds and Licensed Products with respect to such the License under discussion between the Parties during the Negotiation Period (i.e., whether the such License will cover, for example, a single Licensed Compound or a list of several Licensed Compounds or the entire genus of Licensed Compounds) and the proposals and Term Sheets that Elixir Sunesis delivers to BMS during the that Negotiation Period shall include the terms for the scope of Licensed Compounds and Licensed Products requested by BMS. (d) If Elixir Sunesis and BMS do not conclude an a binding definitive agreement with respect to such License during the Negotiation Period (including any extensions thereof)Period, Elixir Sunesis will then be free to enter into negotiations with any Third Party regarding such a License for such one or more Licensed Compound(s) and Licensed Product(s), provided that such License shall have the same territory as identified in the Notice under Section 3.1(a) and the same scope of Licensed Compound(s) and Licensed Product(s) that were the subject of the last Term Sheet delivered to BMS under Section 3.1(b). Elixir shall then be free to enter into any such License, subject to the provisions set forth in Section 3.2. (e) . If BMS does not provide Elixir Sunesis with such notice of BMS’ election to pursue a License within the * [*] period after receipt of a Notice set forth in Section 3.1(a)above, or if BMS does not provide Elixir with such a written Term Sheet proposal within the * of the start of the Negotiation Period, Elixir Sunesis will then be free to enter into negotiations with any Third Party, and Elixir Sunesis shall have the right to enter into Licenses, Licenses with respect to some or all of the Licensed Product(s) described in the Notice, which shall not be subject to the provisions of Section 3.2. (e) This Section 3.1(e) shall be subject to and shall not limit Section 3.3. At any time after a Negotiation Period in which Sunesis and BMS are unable to conclude a binding definitive License agreement, where Sunesis intends to enter into a License agreement either with BMS or with a Third Party in accordance with Section 3.2, Sunesis shall be free to offer to BMS a Term Sheet for a License agreement including rights to one or more Licensed Compound(s) and territory identified Licensed Product(s) that were the subject of the Notice provided to BMS in the preceding Negotiation Period. Sunesis shall have the right to determine the scope of compounds to be licensed under the Term Sheet, provided that the scope of compounds shall not be narrower than the scope of compounds requested by BMS in the preceding Negotiation Period (pursuant to Section 3.1 (c) above). If Sunesis offers a Term Sheet for such License to BMS, BMS will have [*] in which to provide Sunesis with notice that BMS desires to enter into an agreement with Sunesis on substantially the same financial, governance and decision-making terms and conditions as set out in such Term Sheet (an “Acceptance Notice”). * If an Acceptance Notice is provided by BMS, BMS shall use diligent efforts to obtain internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet, and the Parties will work diligently to expeditiously complete such an agreement. If (i) an Acceptance Notice is not provided by BMS within such [*] period; (ii) BMS fails to obtain internal BMS Executive Committee approval to proceed with completing a definitive agreement based on such Term Sheet within [*] after Sunesis’ receipt of the Acceptance Notice; or (iii) Sunesis and BMS do not execute a binding License agreement within [*] after Sunesis’ receipt of the Acceptance Notice, Sunesis will be free to enter into negotiations with any Third Party regarding a License for one or more Licensed Compound(s) and Licensed Product(s), and free to enter into any such License, subject to the provisions set forth in Section 3.2, provided that such Term Sheet shall be deemed the Term Sheet last offered by Sunesis to BMS for the purposes of Section 3.2. Upon receipt of such Acceptance Notice and during the period described above, Sunesis shall use [*] Certain information on this page has been redacted and filed separately with the Securities and Exchange Commission. Confidential Treatment Requestedtreatment has been requested with respect to the omitted portions. commercially reasonable efforts to promptly provide BMS with additional information available to Sunesis that is related to the Licensed Compound(s) and Licensed Product(s) that would be subject to the License, and access to personnel and facilities, as reasonably requested by BMS as part of its due diligence with respect to such License. In order to facilitate BMS’ ability to evaluate the Term Sheet offered by Sunesis to BMS pursuant to this Section 3.1(e), as soon as is practicable prior to the start of the foregoing [*] period, Sunesis shall give BMS advance notice of the scope of compounds to be licensed under such Term Sheet.