exv10w63



 






[ * ] = 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 10.63




CONFIDENTIAL




VIA FAX AND FEDERAL EXPRESS




May 8, 2003




Patrice Lee

Array BioPharma, Inc.

3200 Walnut Street

Boulder, CO 80301




RE: Amendment No. 1 to the Drug Discovery Collaboration Agreement




Dear Ms. Lee:



As you know, InterMune, Inc. (“InterMune”) and Array BioPharma, Inc. (“Array”) are
parties to that certain Drug Discovery Collaboration Agreement dated September 13, 2002 (the
“Agreement”). Because InterMune now wishes to transfer to Array, and Array wishes to
accept, the materials described on Exhibit A hereto (the “Materials”), the parties hereby
agree to add a new Section 9.6 to the Agreement as follows:




     “9.6 Transfer of Materials.




     (a) Array shall use the Materials solely to perform its obligations under the
Agreement. Array will not sell, transfer, disclose or otherwise provide access to the
Materials, or any method or process relating thereto or any material that could not have
been made but for access to the foregoing, to any person or entity without the prior express
written consent of InterMune. Ownership of the Materials will remain solely and exclusively
with InterMune, and Array will not acquire any right, title or interest in or to the
Materials.




     (b) Array acknowledges that the Materials may have biological and/or chemical
properties that are unpredictable and unknown at the time of transfer, that they are to be
used with caution and prudence and that they are not to be used for testing in or treatment
of humans.




     (c) Array will, at InterMune’s written directions, return or dispose of any unused
portions of the Material. Any such disposal will conform to prescribed federal, state and
local guidelines.




     (d) THE MATERIALS ARE SUPPLIED WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR THAT THEY ARE FREE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF
INFRINGEMENT OR THE LIKE. INTERMUNE





 









 









MAKES NO REPRESENTATIONS THAT THE USE OF THE MATERIALS WILL NOT INFRINGE ANY PATENT OR
OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTIES.




     (e) This Section 9.6 will survive any expiration or termination of the Agreement.


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
countersigning both enclosed copies of this letter where indicated below, and returning one
original to the attention of Corina Hughes, Manager, Legal Affairs, at InterMune. We would be
happy to proceed based on receipt of a facsimile copy while awaiting the original.




Sincerely,




/s/ Stephen N. Rosenfield




Stephen N. Rosenfield

Executive Vice President of Legal Affairs




Acknowledged and Agreed:




ARRAY BIOPHARMA, INC.




	 	 	 	 	 
	By:

	 	/s/ John Moore
 

	 	 
	 
	 	 	 	 
	Name:

	 	John Moore	 	 
	 
	 	 	 	 
	Title:

	 	VP, General Counsel	 	 
	 
	 	 	 	 
	Date:

	 	5-12-03	 	 
	 
	 	 	 	 
	cc:

	 	Larry Blatt, InterMune	 	 
	 
	 	 	 	 
	 

	 	General Counsel, Array BioPharma	 	 
	 
	 	 	 	 
	 

	 	Chief Operating Officer, 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




     [ * ].



[ * ] = 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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