EXHIBIT 10.3


 


 


July 30, 2009


 


 


Array BioPharma Inc.


3200 Walnut Street


Boulder, Colorado 80301


 


Re:       Drug Discovery Collaboration Agreement


 


Ladies/Gentlemen:


 


Reference is made to that
certain Drug Discovery Collaboration Agreement between Array BioPharma Inc. (“Array”)
and Genentech, Inc. (“Genentech”), effective as of December 22, 2003,
which was subsequently modified by a Letter Agreement, dated October 11,
2004, and amended by a First Amendment, dated May 20, 2005, a Second
Amendment, dated October 1, 2005, a Third Amendment, dated April 2,
2007, a Fourth Amendment, dated July 25, 2008, and a Fifth Amendment,
dated September 1, 2008 (collectively, the “Agreement”).  All capitalized terms used in this letter
agreement (“Letter Agreement”), which is effective as of January 29, 2009,
shall have the meanings defined in the Agreement unless otherwise defined
herein.


 


This Letter Agreement
confirms the agreement of the Parties with respect to the FTE payment rate,
certain FTE limitations, the continued provision of FTE reports by Array and
certain Genentech audit rights.  Accordingly,
in addition to the provisions of the Agreement, Array and Genentech agree as
follows:


 


1.         FTE Rate; FTE Limitations.  Genentech shall provide FTE support for Array’s
work under the Research Program, at an FTE rate of [***],
which rate is effective as of January 29, 2009 (and through the remainder
of the Research Term).  The Parties agree
that without Genentech’s written request or approval, in its sole discretion, a
particular individual shall not [***] in a
given quarter.  Upon the execution of
this Letter Agreement by both Parties, Array shall send an invoice to Genentech
for any amounts due (based on the new FTE rate) and owed as of such execution
date.  Genentech shall pay the invoiced
amounts within one (1) week of receiving such invoice.


 


2.         FTE Reports.  Within thirty (30) days after the end of each
quarter during which Genentech is funding Array FTEs, Array shall provide
Genentech a report that specifies the following information for such quarter
(each report including such information for FTE support on or after January 29,
2009, an “FTE Report”):  (a) the
actual number of FTEs that performed activities under the Research Plan during
such quarter; (b) the identity of the individuals included within those
FTEs; and (c) the percentage of an FTE that each such individual
represents.


 


 


1


[***] 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.


 

















 


3.         Records.  Array shall keep full, true and accurate
books of account containing all particulars that may be necessary for the
purpose of determining the correctness of FTE Reports and invoices received by
Genentech under Section 6.2(b) of the Agreement.  Such books of account and the supporting data
and other records shall be kept at the principal place of business of Array and
shall include complete time reports for each individual included within FTEs
funded by Genentech for the period such individual was funded (i.e., for all
activities worked on during such period, whether or not funded by Genentech);
provided, however, Array may remove descriptions of those activities that were
not funded by Genentech.  Array’s books
and records shall be open at all reasonable times, for [***]
following the end of the calendar quarter to which they pertain, for
examination in accordance with the provisions of paragraph 4 of this Letter
Agreement; provided, however, any given set of books and records may only be
examined once.


 


4.         Audits.  At the request and expense of Genentech,
Array shall permit a nationally recognized independent certified public
accountant, selected by Genentech and reasonably acceptable to Array, to
examine, not more than once in any [***], such
books of account and records described under paragraph 3 of this Letter
Agreement as may be necessary to determine the correctness of any FTE Report or
invoice under Section 6.2(b) the Agreement.  Such examination shall be made during regular
business hours and upon at least [***] prior
written notice.  After review of the
accountant’s examination report, any uncontested overpayments shall be promptly
refunded by Array or fully creditable against amounts payable in subsequent
payment periods, at Genentech’s election.  Array shall (at Genentech’s election) refund
or fully credit any contested overpayments, if any, that are due promptly after
the dispute is resolved, in accordance with the provisions of Article 14
of the Agreement.  If such accountant
reasonably determines that the actual number of FTEs specified in FTE Reports
has been, for the period audited in total, (a) overstated by more than [***] and (b) resulted in an overpayment of more than [***], Array shall pay the reasonable costs of the
examination.  The Parties agree that all
information subject to review under any such audit is Confidential Information of
Array and may only be used for purposes germane to such audit, and that
Genentech shall retain and cause its accountant to retain all such information
in confidence.


 


This Letter Agreement
constitutes the entire understanding of the Parties with respect to the subject
matter hereof and supersedes any prior understanding, oral or written, between
the Parties with respect thereto.  The
provisions of this Letter Agreement are generally in addition to those set
forth in the Agreement, but this Letter Agreement shall be governed by
applicable provisions of the Agreement as needed (e.g., confidentiality and
dispute resolution); in the event of a conflict between a provision in the
Agreement and this Letter Agreement, the provision in this Letter Agreement shall
govern and control.


 


 


2


[***] 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.


 

















 


Please indicate your agreement by countersigning where
indicated below.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  for Genentech, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  /s/ Joseph S. McCracken

  	
   

  
	
   

  	
  Title:

  	
   

  	
  VP Business Development

  	
   

  
					



 


	
  AGREED AND ACCEPTED:

  	
   

  
	
  Array
  BioPharma Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ R. Michael Carruthers

  	
   

  	
   

  
	
  Name:

  	
  R. Michael Carruthers

  	
   

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  	
   

  



 


 


3


[***] 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