exv10w64



 






[ * ] = 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.






EXHIBIT 10.64




CONFIDENTIAL




VIA FAX AND FEDERAL EXPRESS




January 7, 2004




David L. Snitman, Ph.D.

Chief Operating Officer

Array BioPharma, Inc.

3200 Walnut Street

Boulder, CO 80301




	 	 	 
	RE:

	 	Amendment No. 2 to the Drug Discovery Collaboration Agreement
	 

	 	(“Amendment No. 2”)






Dear Dr. Snitman:



As you know, InterMune, Inc. (“InterMune”) and Array BioPharma, Inc. (“Array”) are
parties to that certain Drug Discovery Collaboration Agreement dated September 13, 2002, as amended
May 8, 2003 (the “Agreement”). The parties agree that the Agreement is hereby amended as
follows, effective as of the date of this Amendment No. 2 (“Amendment Effective Date”):





	1.	 	The [ * ] is hereby removed as a [ * ] of the Agreement solely for the purpose of Array
entering into an [ * ] arrangement with a third party (the “Third Party”) for [ * ],
and subject to the terms of this Amendment No. 2. Accordingly:






	 	(a)	 	InterMune hereby waives its option to [ * ] under Section 2.7.2 of the
Agreement solely with respect to such arrangement with the Third Party.
	 
	 	(b)	 	If such arrangement with the Third Party has not been concluded within three
(3) months from the Amendment Effective Date as evidenced by an executed written
agreement, then [ * ] automatically will be reinstated as a [ * ] of the Agreement, and
all of InterMune’s rights and Array’s obligations under the Agreement with respect to [
* ] will be reinstated in full. InterMune agrees that Array does not need to provide
InterMune with a copy of such written agreement, so long as InterMune receives by three
(3) months from the Amendment Effective Date a written certification, in the form
attached as Exhibit A hereto, from an authorized officer of Array that a written
agreement for such [ * ] arrangement has been executed. Any material misrepresentation
set forth in such certification will be deemed a material breach of this Amendment No.
2.
	 
	 	(c)	 	If such arrangement is concluded with the Third Party, but the [ * ] thereafter
revert to Array for any reason, then [ * ] automatically will be reinstated as a [ * ]
of the Agreement, and all of InterMune’s rights and Array’s obligations under the







 









 









	 	 	 	Agreement with respect to [ * ] will be reinstated in full. Array will give
InterMune prompt written notice of any such reversion.






	 	(d)	 	Nothing in this Amendment No. 2 will be deemed to:






	 	(i)	 	grant to Array any further right, title or interest in or to
any intellectual property (including, without limitation, any patent rights)
Controlled by InterMune other than as expressly stated in Sections 4.1.1 and
4.3 of the Agreement;
	 
	 	(ii)	 	Array to use any Hit Compound, Lead Compound or Product for any
purpose other than the Research Collaboration conducted in accordance with the
Agreement; nor
	 
	 	(iii)	 	permit Array to grant to any third party any right, title or
interest in or to any Hit Compound, Lead Compound or Product.






	2.	 	In consideration for InterMune’s agreement as set forth in Section 1 above, and irrespective
of the outcome of the negotiations or arrangement between Array and the Third Party:






	 	(a)	 	(i) During the Research Term, Array shall provide, at its sole cost and
expense, [ * ] additional FTEs to conduct the Research Collaboration. Such additional
FTEs will bring the present number of FTEs conducting the Research Collaboration from [
* ] to [ * ]. Each such individual shall have the appropriate skills, training,
experience and ability to perform his or her responsibilities under the Research Plan.
	 
	 	(ii)	 	If Array fails to provide such additional FTEs as described in subsection
(a)(i) above, then in addition to any other remedies available to InterMune at law
or equity, InterMune shall be entitled to offset the costs of such additional FTEs
(based on the Array FTE Rate, as defined in Section 5.1.2 of the Agreement) against
any amounts due to Array under the Agreement, including, without limitation, any
milestone and/or royalty payments.
	 
	 	(b)	 	Except for purposes of the Research Collaboration conducted in accordance with
the Agreement, Array shall not develop (either pre-clinically or clinically), use,
import, make, have made, sell or offer for sale any Hit Compound, Lead Compound or
Product, including, without limitation, in conjunction with any other compound or
product.
	 
	 	(c)	 	Array shall not enable (including without limitation through the grant of a
license or covenant) any Array Affiliate or Third Party to develop (either
pre-clinically or clinically), use, import, make, have made, sell or offer for sale any
Hit Compound, Lead Compound or Product, including, without limitation, in conjunction
with any other compound or product.





[ * ] = 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.




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	3.	 	If Array materially breaches this Amendment Number 2, then InterMune will be entitled to seek
any and all remedies available at law and or equity. Without limiting the generality of the
foregoing, in the event of any such material breach: (i) [ * ] automatically will be
reinstated as a [ * ] of the Agreement; and (ii) all of InterMune’s rights and Array’s
obligations under the Agreement with respect to [ * ] will be reinstated in full.




Except as set forth above, all terms and conditions of the Agreement will remain in full force and
effect. Any capitalized term used herein and not otherwise defined will have the same meaning as
set forth in the Agreement.



Please acknowledge your agreement to the above by having an authorized Array representative
countersign both enclosed copies of this Amendment No. 2 where indicated below, and returning one
original to the attention of Gloria Lopez, Contracts Administrator, at InterMune. We would be
happy to proceed based on receipt of a facsimile copy while awaiting the original.



Sincerely,




/s/ Larry Blatt




Larry Blatt

Vice President of Biopharmacology Research





	 	 	 	 	 
	Acknowledged and Agreed:	 	 
	 
	 	 	 	 
	ARRAY BIOPHARMA, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ David Snitman
 

	 	 
	 
	 	 	 	 
	Name:

	 	David Snitman	 	 
	 
	 	 	 	 
	Title:

	 	COO	 	 
	 
	 	 	 	 
	Date:

	 	1-15-04	 	 
	 
	 	 	 	 
	cc:

	 	Paul Resnick, InterMune	 	 
	 

	 	General Counsel, Array BioPharma	 	 






[ * ] = 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.




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EXHIBIT A




ARRAY BIOPHARMA, INC.




OFFICER’S CERTIFICATE





     The undersigned,          , hereby certifies that {he/she} is the duly elected
or appointed {Title} of ARRAY BIOPHARMA, INC., a Delaware corporation (the “Company”), and acting
in such capacity hereby certifies that:


(a) As of {Date}, the Company entered into a written agreement with a third party (the “Third Party
Agreement”) setting forth the terms of an [ * ] arrangement regarding the [ * ], which agreement is
effective and binding on the Company.



(b) The Third Party Agreement does not conflict with any obligation of the Company under the Drug
Discovery Collaboration Agreement between the Company and InterMune, Inc. (“InterMune”) dated
September 13, 2002, as amended (the “Agreement”).



(c) The Company will promptly notify InterMune in writing upon any termination of the Third Party
Agreement or of any reversion of [ * ] to the Company.



(d) Any material misrepresentation set forth in this Certificate will be deemed a material breach
of the Agreement, and InterMune will be entitled to seek any and all remedies available at law and
or equity.



All capitalized terms used and not otherwise defined in this Certificate shall have the same
meanings as in the Agreement.



IN WITNESS WHEREOF, I have hereunto set my hand as of the day of      , 2004.




[ * ] = 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.




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