EXHIBIT 10.2


 


[ * ] =
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.


 


FIFTH AMENDMENT TO DRUG
DISCOVERY COLLABORATION AGREEMENT


 


THIS AMENDMENT NO. 5 (“Fifth
Amendment”), effective as of September 1, 2008 (“Amendment Date”), is
entered into by and between Genentech, Inc., a Delaware corporation,
having a principal place of business at 1 DNA Way,
South San Francisco, California 94080 (“Genentech”) and
Array BioPharma Inc., a Delaware corporation, having a principal
place of business at 3200 Walnut Street, Boulder, Colorado 80301
(“Array”), (collectively, the “Parties” or individually, a “Party”).


 


WHEREAS, Genentech and
Array entered into a Drug Discovery Collaboration Agreement, 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
and a Fourth Amendment, dated July 25, 2008 (collectively, the “Agreement”).


 


WHEREAS, the Parties
desire to amend the Agreement as set forth below.


 


NOW, THEREFORE, the Parties
agree as follows:


 


1.             This Fifth
Amendment hereby amends and revises the Agreement to incorporate the terms and
conditions set forth in this Fifth Amendment. 
The relationship of the Parties shall continue to be governed by the terms
of the Agreement, as amended.


 


2.                                       All capitalized terms used
in this Fifth Amendment shall have the meanings defined in the Agreement unless
otherwise defined herein.


 


3.                                       Article 1 is hereby
amended by adding the following definitions in alphabetical order:


 


·                  [ * ]


 


·                  [ * ]


 


4.                                       Prior to the Amendment Date
(in accordance with the Fourth Amendment), there were four (4) Collaboration
Targets ([ * ],  [ * ],  [ * ] and  [ * ]) and Array was
devoting, and Genentech was paying for, [ * ] to perform activities under the Research Plan.  Notwithstanding anything to the contrary in
the Agreement:


 


(a)          as of the Amendment Date, [ * ] is hereby
included as an additional Collaboration Target, and the JRC shall promptly
amend the Research Plan to include the following with respect to [ * ]: (i) research
activities and (ii) the applicable in vitro
biochemical and cell-based pharmacodynamic assays (as described in the
definitions of “Collaboration Compound” and “Compound” in the Third Amendment);


 

















 


[ * ] =
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.


 


(b)         all [ * ] shall continue to be allocated as determined by the
JRC (including that, at any given time, there may not be any research
activities with respect to a given Collaboration Target (e.g., c-Met) in the Research Plan);


 


(c)          as of the Amendment Date, the number of [ * ] is hereby increased
by [ * ]
(i.e., for a total of [ * ]);


 


(d)         at any time(s) during the Research Term, the
JRC has the right, with the agreement of both Parties, to further increase the
number of [ * ] by up to an
additional [ * ]
(i.e., for a maximum total of [ * ]); and


 


(e)          at any time(s) during the Research Term,
Genentech shall have the right to reduce the number of [ * ], upon three (3) months
written notice to Array, provided that no such reduction(s) shall (i) be
effective prior to [ * ] or (ii) result in fewer than [ * ] during the
period from [ * ] through the
remainder of the Research Term.


 


5.             Section 6.1
of the Agreement is hereby amended by adding the following sentence to the end
of the Section:


 


“In consideration
of certain provisions of the Fifth Amendment, Genentech shall pay to Array a [ * ], which amount shall be non-refundable and non-creditable against any
other amounts due Array under this Agreement.”


 


6.             Section 6.2(a) of
the Agreement (which was previously amended in the Second Amendment) is hereby
amended and replaced in its entirety as follows:


 


“(a)         [ * ]


 


7.             The first
paragraph of Section 6.3(a) is hereby amended and replaced in its
entirety as follows:


 


“(a)         Milestone Schedule.  For purposes of this Section 6.3(a), the
table set forth following this paragraph is referred to as the “Milestone
Table.”  Within [ * ] following the first achievement of a given milestone event (set forth in
the Milestone Table) by any Licensed
Product with respect to a particular
Collaboration Target, Genentech shall pay to Array the corresponding milestone
payment (each payment, a “Development Milestone Payment”).  By way of example only, if a given milestone
event is achieved by more than one Licensed Product for the AKT Collaboration
Target, the corresponding Development Milestone Payment shall only be due for
the first such Licensed Product for [ * ], regardless of whether a second Licensed Product
for the [ * ] Collaboration
Target subsequently achieves such milestone event (e.g., if the development or commercialization of the first such
Licensed Product is discontinued at any time after it achieves such milestone
event).  Notwithstanding the payment
amounts set forth in the Milestone Table, solely with 


 


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.


 


respect to the [ * ] Collaboration
Target, the Development Milestone Payments shall be two hundred percent (200%)
of such payment amounts.”


 


8.             This Fifth
Amendment and the Agreement constitute the entire agreement between the Parties
in connection with the subject matter of this Fifth Amendment.  The Agreement, as herein amended, is and
remains in full force and effect.


 


IN WITNESS WHEREOF, the Parties
have caused this Fifth Amendment to be executed by their respective duly
authorized representatives as set forth below.


 


 


	
  GENENTECH, INC.

  	
   

  	
  ARRAY BIOPHARMA INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David Ebersman

  	
   

  	
  By:

  	
  /s/ David Snitman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  David
  Ebersman

  	
   

  	
  Name:

  	
  David
  Snitman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  EVP
  and CFO

  	
   

  	
  Title:

  	
  COO
  and VP of Business Development

  



 


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