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EXHIBIT 10.29
CUSTOM SYNTHESIS
FEE-FOR-SERVICE AGREEMENT
by and between
MERCK & CO., INC.
and
ARRAY BIOPHARMA
This Agreement (the "Agreement") confirms the mutual understanding by and
between Merck & Co., Inc., a New Jersey corporation with a place of business at
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("MERCK") and Array
BioPharma, a Delaware corporation with a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ARRAY BIOPHARMA").
1. Purpose and Scope. ARRAY BIOPHARMA agrees to diligently perform services
("Services") required to synthetically prepare the desired proprietary organic
compounds ("Products") requested by MERCK (or by one or more Affiliates
designated by MERCK) under this Agreement. For the purposes of this Agreement,
Affiliates shall mean any entities controlling, controlled by, or under common
control with, MERCK and ARRAY BIOPHARMA, respectively. Control shall mean the
ownership of at least 50% of the equity interests in or voting control of the
identified entity.
(a) For each proposed Service to be initiated under this Agreement,
MERCK shall submit to ARRAY BIOPHARMA, at no cost, a written request
("Requisition") stating the chemical structure(s) and gram quantity (or molar
equivalent) amount(s) of the desired Product(s), including any synthetic routes
to such chemical structure(s) and other specifications (the foregoing together
with Purchase Orders and other non-public information generated by MERCK,
hereinafter shall be referred to as "MERCK Know-How") and/or chemical material
("MERCK Material"). ARRAY BIOPHARMA shall be permitted to use such Requisition
for the sole purpose of evaluating its interest to synthetically prepare
Product(s) described therein for MERCK. Within thirty (30) days of receipt of
said Requisition, ARRAY BIOPHARMA shall advise MERCK of its interest to
synthetically prepare the Product(s) embodied in the Requisition by submitting
to MERCK a written bid stating the proposed start and delivery dates, total
costs of preparing and gram quantity amount of the Product(s) that ARRAY
BIOPHARMA agrees to provide ("Quote"). Within thirty (30) days of MERCK's
receipt of a Quote, MERCK shall advise ARRAY BIOPHARMA in writing of the
acceptance of each submitted Quote, and upon such acceptance, shall initiate an
Authorized Purchase Order.
(b) The MERCK Material is not to be used in humans. It is understood
that the MERCK Know-How and MERCK Material are provided only for the proposed
Service to be carried out hereunder and shall not be used for any other purpose
nor shall the MERCK Know-How or MERCK Material or any derivatives, analogs,
modifications or components thereof or information about said MERCK Know-How or
MERCK Material be transferred, delivered or disclosed to any third party without
the prior written consent of MERCK. [ * ] Any and all unused MERCK Material
shall, at MERCK's expense and election, be returned to MERCK promptly upon
completion of such Service or otherwise disposed of in accordance with
instructions from MERCK.
[ * ] = 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 406 of the Securities Act of 1933, as amended.
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(c) For each Service initiated under this Agreement, ARRAY BIOPHARMA
shall deliver to MERCK the agreed upon amount [ * ] of each synthetically
prepared Product, accompanied by a writing in English, in electronic or
hard-copy format, which describes the step-wise synthetic procedure carried out
to prepare each Product ("Product Report") and liquid chromatography-mass
spectral (LC-MS) analysis to prove chemical identity and confirm overall purity
[ * ]. [ * ]
(d) [ * ]. ARRAY BIOPHARMA shall advise MERCK of all quantities of the
Product(s) generated in excess of the Authorized Purchase Order. [ * ]. MERCK
may agree to purchase additional quantities of Product(s) at a discounted price
mutually agreed upon by the parties in writing, and ARRAY BIOPHARMA agrees to
dispose of any additional remaining quantities of Product(s) in accordance with
instructions from MERCK.
2. Term and Termination. The term of this Agreement shall be for a period of
five (5) years, effective upon execution of this Agreement by both parties.
MERCK may terminate this Agreement at any time upon written notice to ARRAY
BIOPHARMA. Upon termination of this Agreement, or at any other time that MERCK
might request, ARRAY BIOPHARMA promptly shall return all papers, records and
other documents embodying MERCK confidential information, including all MERCK
Material supplied by MERCK, and all embodiments of MERCK Know-How, including all
documents, materials and Products generated by ARRAY BIOPHARMA in connection
with the Services provided under this Agreement, except that ARRAY BIOPHARMA may
retain one copy of such papers, records and other documents for record keeping
purposes. Termination of this Agreement for any reason shall not release either
party hereto from any liability which, at the time of such termination, has
already accrued to the other party or which is attributable to a period prior to
or as a result of such termination.
3. Amount. MERCK shall pay ARRAY BIOPHARMA the negotiated amount set forth in
the Authorized Purchase Order to cover total costs and expenses for each Service
initiated under this Agreement, with payment in full to be made within sixty
(60) days of delivery of the Product(s) to MERCK in accordance with the
conditions set forth in Section 1 of this Agreement. Such costs shall include
the preparation and shipment, per custom packaging instructions provided by
MERCK with the Authorized Purchase Order, of stated gram quantity amount (or
molar equivalent of salt forms) of the Product to MERCK. MERCK shall have no
obligation to make any payments whatsoever to ARRAY BIOPHARMA or bear any costs
or expenses for any Product which is not in compliance with the purity and
structural characterization criteria or other specifications set forth herein,
in the Requisition, or otherwise provided by MERCK to ARRAY BIOPHARMA. Under no
circumstances shall MERCK have any obligations to ARRAY BIOPHARMA beyond those
set forth hereunder. MERCK shall not be obligated to make any payments
whatsoever to ARRAY BIOPHARMA or bear any costs or expenses for any Services
beyond those set forth in the Authorized Purchase Order or requested in
connection with a subsequent mutual written agreement.
4. Confidentiality. ARRAY BIOPHARMA agrees to keep confidential and not to use,
except to perform for MERCK the Services under this Agreement, all information,
MERCK Know-How and MERCK Material supplied by MERCK and all information and
Products generated by ARRAY BIOPHARMA as a result of the Services performed
pursuant to this Agreement. ARRAY BIOPHARMA agrees not to disclose to any third
[ * ] = 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 406 of the Securities Act of 1933, as amended.
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party any information, MERCK Know-How, MERCK Material or Products concerning
Services being conducted hereunder without MERCK's prior written consent. These
obligations of confidentiality and non-use shall continue at all times beyond
the term of this Agreement. ARRAY BIOPHARMA shall not use any third party trade
secrets, processes, methodologies or reagents in generating any Product(s) for
MERCK hereunder. This Agreement shall not restrict ARRAY BIOPHARMA's use or
disclosure of certain expected information which (i) is in the public domain by
use and/or publication before its receipt from MERCK, (ii) was already in ARRAY
BIOPHARMA'S possession prior to receipt from MERCK; (iii) is properly obtained
by ARRAY BIOPHARMA from a third party which has a valid legal right to disclose
such information to ARRAY BIOPHARMA and is not under a confidentiality
obligation to MERCK; or (iv) ARRAY BIOPHARMA is required by law or a court of
competent jurisdiction to make provided, however, to the extent it may legally
do so, ARRAY BIOPHARMA will give reasonable advance notice to MERCK of such
disclosure and reasonably assist MERCK to secure confidential treatment of MERCK
confidential information prior to its disclosure (whether through protective
orders or otherwise) (collectively, the "Exceptions"). ARRAY BIOPHARMA agrees to
advise MERCK of the applicability of any of the foregoing Exceptions for any
Product(s) or the synthetic preparation thereof that Array BIOPHARMA is aware of
in connection with any Services hereunder, and shall advise MERCK of same in
connection with the provision of the Quote; provided, however, failure to do so
shall not prevent ARRAY BIOPHARMA from relying on such Exception.
5. Reports: Use of Information. ARRAY BIOPHARMA shall keep MERCK informed of the
status and progress of Services through written reports on a monthly basis which
shall continue through completion of each Service and delivery of the
Product(s), at which time ARRAY BIOPHARMA shall submit the Product Report as
outlined in Section 1 of this Agreement. ARRAY BIOPHARMA agrees to keep
confidential and not to use, except in connection with the Services provided
under this Agreement, all MERCK Know-How included in any and all written and
electronic copies of the aforementioned reports. [ * ]. At MERCK's request,
ARRAY BIOPHARMA shall provide to MERCK copies of all documentation relating to
the Services performed hereunder or shall permit MERCK to inspect and copy such
documentation.
6. Inventions. [ * ]
7. Compliance with Law. ARRAY BIOPHARMA shall conduct the research in accordance
with the applicable laws, rules and regulations, including, without limitation,
all current governmental regulatory requirements concerning Good Laboratory
Practices. ARRAY BIOPHARMA hereby certifies that it will not or has not employed
or otherwise used in any capacity the services of any person debarred under
Section 306 (a) or (b) of the Federal Food, Drug, and Cosmetic Act in performing
any Services hereunder.
8. Authorized Purchase Orders. The terms of any Authorized Purchase Order and
any Requisition are in addition to the terms of this Agreement, and this
Agreement shall control over any terms in any Quote.
[ * ] = 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 406 of the Securities Act of 1933, as amended.
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9. Liability. MERCK assumes no responsibility and shall have no liability for
the nature, conduct or results of any research, testing or other work performed
pursuant to the Services hereunder.
10. Indemnity. ARRAY BIOPHARMA hereby agrees to indemnify and hold harmless
MERCK, its subsidiaries and affiliates and their respective officers, employees
and directors against any and all liability, loss, damages, cost or expense
(including attorney's fees and expenses and costs of investigation) which any of
them may hereafter incur, suffer, or be required to pay as the result of any
damage suffered or alleged to be suffered, including, without limitation, death
or personal injury and any direct, consequential, special and punitive damages,
as the result of the Services being performed by ARRAY BIOPHARMA hereunder;
provided, however, that such loss, liability or damage is not attributable to
the fraud, gross negligence, malfeasance or willful misconduct of MERCK.
Notwithstanding the foregoing, ARRAY BIOPHARMA assumes no responsibility and
shall have no liability for MERCK's use of any of the results of the Services or
Product(s) provided to MERCK hereunder.
MERCK hereby agrees to indemnify and hold harmless ARRAY BIOPHARMA, its
subsidiaries and affiliates and their respective officers, employees and
directors against any and all liability, loss, damages, cost or expense
(including attorney's fees and expenses and costs of investigation) which any of
them may hereafter incur, suffer or be required to pay as the result of any
damage suffered or alleged to be suffered, including without limitation, death
or personal injury and any direct, consequential, special and punitive damages,
as the result of MERCK's use of any of the Products provided to MERCK hereunder;
provided, however, that such loss, liability or damage is not attributable to
the fraud, gross negligence, malfeasance or willful misconduct of ARRAY
BIOPHARMA.
11. Public Announcements. ARRAY BIOPHARMA shall hold in confidence all
information concerning this Agreement and the terms hereof and shall not make
any public statement or announcement about it, nor issue new releases or
advertising relating to the existence or implementation of this Agreement or the
subject matter thereof without the prior written consent of MERCK. ARRAY
BIOPHARMA shall not use the name "Merck", Merck & Co., Inc., or any trademarks,
trade names or logos of MERCK without MERCK's prior written consent.
12. Independent Contractors. It is not the intent of ARRAY BIOPHARMA and MERCK
to form any partnership or joint venture, and nothing contained herein shall be
construed to empower either party to act as an agent for the other. The parties
agree that each of them shall, in relation to its obligations hereunder, be
acting as an independent contractor.
13. Assignment. [ * ]
14. Force Majeure. Neither ARRAY BIOPHARMA nor MERCK shall be liable to the
other in damages for, nor shall this Agreement be terminable or cancelable by
reason of, any delay or default in such party's performance hereunder if such
default or delay is caused by events beyond such party's reasonable control
including, but not limited to, acts of God; acts or omissions of any government;
any rule, regulation or order issued by any governmental authority or by any
officer, department, agency or instrumentality thereof; fire; storm; flood;
earthquake; accident; war; rebellion; insurrection; riot;
[ * ] = 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 406 of the Securities Act of 1933, as amended.
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invasion; or strike, lockout or other work stoppage provided that such failure
or omission is cured as is practicable after the occurrence of the force
majeure.
15. Contacts. All correspondence, Requisitions, Quotes and Authorized Purchase
Orders pertaining to this Agreement should be directed to [ * ], Merck Research
Laboratories, in the case of MERCK, and [ * ] in the case of ARRAY BIOPHARMA.
16. No Obligation. It is understood and agreed that the entering into of this
Agreement and receipt of Quotes by MERCK shall not impose any obligation upon
MERCK to submit any Requisitions to ARRAY BIOPHARMA or to accept any Quote
submitted by ARRAY BIOPHARMA. MERCK retains the sole discretion to select
vendors for submission of Requisitions and acceptance of Quotes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed below
by duly authorized representatives.
MERCK & CO., INC.
BY /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. DATE 5/14/99
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D.
TITLE Senior Vice President, Basic Chemistry
ARRAY BIOPHARMA
BY /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ DATE 5/25/99
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▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE Chief Operating Officer
[ * ] = 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 406 of the Securities Act of 1933, as amended.
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